Samuel Alito

“ I would grant the petition to consider the question whether 17 U.S.C. §402 (d) applies when a person is found to have engaged in copyright infringement by down-loading digital music files. Under §504 (c) (1) , an infringer is ordinarily liable for statutory damages of "not less than $750 or more than $30,000" per work infringed. In a case involving an "innocent infringer," however, the minimum statutory damages that must be awarded are reduced. ”

“ This provision was adopted in 1988, well before digital music files became available on the Internet. See Berne Convention Implementation Act, §7, 102 Stat. 2857. The theory of §402 (d) appears to be that a person who copies music from a material object bearing the prescribed copyright notice is deemed to have "reason to believe that his or her acts constituted an infringement," §504 (c) (2) . But a person who downloads a digital music file generally does not see any material object bearing a copyright notice, and accordingly there is force to the argument that §402 (d) does not apply. ”

“ The Fifth Circuit's decision may or may not set out a sensible rule for the post-"phonorecord" age, but it is at least questionable whether the decision correctly interprets §402 (d) . Although there are now no conflicting Circuit decisions, I would grant review in this case because not many cases presenting this issue are likely to reach the Courts of Appeals. ”