IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-51194

MAVERICK RECORDING COMPANY, A California Joint Venture; UMG

RECORDINGS INC, A Delaware Corporation; ARISTA RECORDS LLC, A

Delaware Limited Liability Company; WARNER BROTHERS RECORDS

INC, A Delaware Corporation; SONY BMG MUSIC ENTERTAINMENT, A

Delaware General Partnership

Plaintiffs – Appellees-Cross-Appellants

v.

WHITNEY HARPER

Defendant – Appellant-Cross-Appellee

Appeals from the United States District Court

for the Western District of Texas

Before DAVIS, CLEMENT, and ELROD, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Ruling on cross-motions for summary judgment, the district court found

that appellant Whitney Harper infringed copyrights held by a consortium of

record companies in 37 sound recordings. It also found that whether Harper was

an “innocent infringer” under 17 U.S.C. § 504(c)(2) was a question for the jury.

On Plaintiffs’ motion, the court entered a final judgment against Harper in the

amount of $200 per infringed work, the minimum amount that could be awarded

for innocent infringement. Harper appealed and Plaintiffs cross-appealed. We

United States Court of Appeals

Fifth Circuit

F I L E D

February 25, 2010

Charles R. Fulbruge III

Clerk

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affirm the district court’s finding of copyright infringement but reverse its

conclusion that Harper could press the “innocent infringer” defense.

FACTS AND PROCEEDINGS

In June 2004, MediaSentry, a company retained by Plaintiffs to

investigate the infringement of their copyrights over the Internet, identified an

individual using a file-sharing program to share 544 digital audio files with

other users of a peer-to-peer network. The shared audio files included a number

of Plaintiffs’ copyrighted sound recordings. By tracing the user’s Internet

protocol address, Plaintiffs ultimately identified Harper as the individual

responsible for the file sharing.

To ensure that each of the 544 audio files was a downloadable file,

MediaSentry initiated a download of the entire group. The company captured

screen shots showing all of the files that Harper was sharing. It also captured

the metadata associated with each file, which included the name of the artist

and song. This information allowed Plaintiffs to identify those sound recordings

on which they held a copyright. MediaSentry fully downloaded six of the audio

files from Harper’s “shared folder.” Subsequent discovery indicated that Harper

had downloaded all of the files from the Internet to the computer without paying

for them, and that she had not copied, or “ripped,” any of the songs from compact

discs that she had bought legally. 

During discovery, Plaintiffs examined Harper’s computer. The

examination showed that its operating system had been reinstalled in 2005. As

a result, most of the files present on the computer in 2004, when MediaSentry

performed its investigation, had been overwritten. The forensic examination did

show that three file-sharing programs had been installed and used on the

computer, including a program known as LimeWire, which had been used after

the operating system was reinstalled. It also revealed a new cache of

approximately 700 recordings downloaded since the reinstallation. Fifteen of the

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copyrights that Plaintiffs’ second amended complaint alleged that Harper

infringed came from this newly discovered cache. 

In August 2008, the district court granted Plaintiffs’ motion for summary

judgment on their copyright claims for 37 audio files. By agreement of the

parties, the court also entered an injunction against Harper. 

The district court denied Plaintiffs’ request for statutory damages.

Plaintiffs had requested the minimum damages of $750 per infringed work set

forth in § 504(c)(1). Harper asserted that her infringement was “innocent” under

§ 504(c)(2), which provides that “where the infringer sustains the burden of

proving . . . that [she] was not aware and had no reason to believe that . . . her

acts constituted an infringement of copyright, the court in its discretion may

reduce the award of statutory damages to a sum of not less than $200.” Harper

averred that she thought her actions were equivalent to listening to an Internet

radio station. The district court found that whether her infringement was

“innocent” presented a disputed issue of material fact.

The district court denied each party’s motion for reconsideration. In doing

so, it clarified its finding that Harper infringed Plaintiffs’ exclusive rights to both

reproduce and distribute the 37 songs on which they held a copyright. 

Reserving the right to appeal the district court’s legal conclusion on the

innocent infringer issue if Harper appealed, Plaintiffs moved for entry of

judgment in the amount of $200 for each infringed work—the minimum amount

due from an innocent infringer. The court granted Plaintiffs’ motion and entered

judgment against Harper. Harper appealed, and Plaintiffs cross-appealed.

Harper argues that, for 31 of the 37 recordings, there was insufficient

evidence of infringement because the audio files were not found on her computer.

She also contends that she did not infringe Plaintiffs’ copyrights by “making

available” the audio files and that the Copyright Act’s statutory damages scheme

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 In her brief, Harper asserts that the evidence was insufficient to show the existence 1

of 33 out of 39 audio files. That sum reflects a miscalculation. After the district court’s entry

of judgment as to 37 audio files, six of which Harper admits were on her computer, she must

be challenging the sufficiency of the evidence on 31 audio files. 

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violates due process. Plaintiffs argue that the district court erred by failing to

rule out the innocent infringer defense as a matter of law. 

STANDARD OF REVIEW

We review a grant of summary judgment de novo and apply the same legal

standard as the district court. Miller v. Gorski Wladyslaw Estate, 547 F.3d 273,

277 (5th Cir. 2008). Summary judgment should be rendered if the record

demonstrates that “there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “[A]ll

facts and evidence must be taken in the light most favorable to the non-movant.”

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).

DISCUSSION

A. Sufficiency of the Evidence

Harper argues that Plaintiffs did not present sufficient evidence for the

district court to find that 31 of the 37 audio files at issue existed on her 1

computer. She does not contest the existence of the six audio files that

MediaSentry downloaded in full over the peer-to-peer file-sharing network in

2004. She also cannot contest the existence of the 15 audio files that were part

of the cache of approximately 700 songs discovered on Harper’s hard drive in

2008. The issue, then, is whether Plaintiffs made an undisputed showing that

Harper had downloaded the remaining 16 audio files. 

Harper’s argument relies on the computer forensic expert’s inability to

recover complete copies of the 16 contested audio files when the expert searched

her computer’s hard drive in 2008. That inability was due to the 2005

reinstallation of the computer’s operating system, which overwrote most of the

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audio files present in 2004. Harper asserts that the 2008 forensic evidence is

inconclusive and that a jury could find that the file remnants discovered in the

2008 examination were something other than downloaded audio files. 

Harper’s argument ignores the voluminous and undisputed evidence that

she downloaded and shared the 16 contested audio files. MediaSentry’s screen

shots of Harper’s “shared folder” indicate that she was sharing the contested

audio files from her computer in 2004. MediaSentry also initiated downloads of

the audio files to verify their existence and recovered metadata from which it

could identify the artist and song title of each file. 

Harper submitted no evidence that calls into question Plaintiffs’ showing

that she had downloaded the audio files. In her deposition, she did not deny that

she had downloaded them. She also testified that she had not copied any of the

recordings to her computer from compact discs that she purchased, and she

acknowledged using a peer-to-peer file-sharing network and stated that she

recognized “some of the songs . . . as music I listened to and may have

downloaded to the computer.” 

The uncontroverted evidence is more than sufficient to compel a finding

that Harper had downloaded the files: there was no evidence from which a factfinder could draw a reasonable inference that Harper had not downloaded them

or that they were something other than audio files. Harper “cannot defeat a

motion for summary judgment merely by claiming some metaphysical doubt as

to the material facts.” Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288, 295

(5th Cir. 2007) (quotation omitted). The district court properly rejected Harper’s

argument that the evidence of infringement was insufficient. 

B. Copyright Infringement

Section 106 of the Copyright Act grants copyright owners the exclusive

right “to do and to authorize,” inter alia, the reproduction of “the copyrighted

work in copies or phonorecords,” the preparation of “derivative works based upon

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the copyrighted work,” and the distribution of “copies or phonorecords of the

copyrighted work to the public by sale or other transfer of ownership, or by

rental, lease, or lending.” 17 U.S.C. § 106. Plaintiffs’ second amended complaint

contains one count, for copyright infringement. Plaintiffs alleged that Harper

had violated their copyrights in two ways: first, by reproducing the copyrighted

audio files, and second, by making them available to others, which Plaintiffs

argue is tantamount to “distribution.” The district court found that the

undisputed evidence showed Harper had done both. 

Harper argues that making audio files available to others by placing them

in a “shared folder” accessible by users of a peer-to-peer file-sharing network

does not constitute “distribut[ion]” under § 106(3). Cf. Elektra Entm’t Group,

Inc. v. Barker, 551 F. Supp. 2d 234, 239-47 (S.D.N.Y. 2008) (collecting cases in

which courts have considered but not embraced the “making available” theory

of distribution). We need not address the “making available” argument at this

time, however, because Harper did not appeal the district court’s finding that

she had infringed Plaintiffs’ copyrights by downloading, and hence reproducing,

the audio files. Because Plaintiffs only seek minimum statutory damages, the

question before the court is whether Harper’s actions violated the Copyright Act,

not how or to what extent they violated it. See 17 U.S.C. § 504(c)(1) (allowing

copyright holders to elect “to recover . . . an award of statutory damages for all

infringements involved in the action, with respect to any one work”). Harper’s

failure to contest the alternative, independent ground on which the district court

found her liable for copyright infringement renders superfluous her argument

against the “making available” theory. Even if the court agreed that Harper did

not “distribute” the recordings under § 106(3) by making them available to

others, the underlying finding of copyright infringement predicated on

reproduction would remain. 

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The district court’s unchallenged ruling that Harper infringed Plaintiffs’

copyrights by downloading the audio files is supported by case law in this and

other circuits. In Alcatel USA, Inc. v. DGI Technologies, Inc., this court held that

the distribution of a microprocessor card that made copies of an operating

system by downloading it caused users to violate the plaintiff’s “exclusive right

to reproduce its software.” 166 F.3d 772, 791 (5th Cir. 1999); see § 106(1). In

BMG Music v. Gonzalez, the Seventh Circuit held that a defendant infringed

copyrights by downloading music through a file-sharing network. 430 F.3d 888

(7th Cir. 2005), cert. denied, 547 U.S. 1130 (2006). Gonzalez explained that the

foundation of the Supreme Court’s holding in MGM Studios, Inc. v. Grokster,

Ltd., 545 U.S. 913 (2005), “is a belief that people who post or download music

files are primary infringers.” 430 F.3d at 889; see also In re Aimster Copyright

Litig., 334 F.3d 643, 645 (7th Cir. 2003) (“swapping” music files over the Internet

“infringes copyright”); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014

(9th Cir. 2001) (“Napster users who download files containing copyrighted music

violate plaintiffs’ reproduction rights.”). 

Harper infringed Plaintiffs’ exclusive right to reproduce their copyrighted

works by downloading the 37 audio files to her computer without authorization.

The district court correctly granted summary judgment on the issue of

infringement. 

C. Due Process

Harper contends that the statutory scheme of damages for copyright

violations outlined in § 504, as applied to her, violates due process by imposing

grossly excessive damages. She argues that, at the time of the infringement, she

was young and did not know that what she was doing was unlawful, and that

fining her several hundred dollars per song for illegal downloading does not

comport with substantive due process. 

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Harper, however, waived her constitutional challenge by failing to raise

it below in a manner that would allow the district court to rule on it. “It is well

settled in this Circuit that the scope of appellate review on a summary judgment

order is limited to matters presented to the district court.” Keelan v. Majesco

Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005). “If a party wishes to preserve

an argument for appeal,” it “‘must press and not merely intimate the argument

during the proceedings before the district court.’” Id. at 340 (quoting New York

Life Ins. Co. v. Brown, 84 F.3d 137, 141 n.4 (5th Cir. 1995)). “If an argument is

not raised to such a degree that the district court has an opportunity to rule on

it, we will not address it on appeal.” FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th

Cir. 1994). 

In her opposition to Plaintiffs’ motion for summary judgment, Harper

stated that she had notified the district court of her intent to challenge the

constitutionality of the Copyright Act. She then presented the whole of her

constitutional argument: “Whitney Harper believes that the copyright law, as

being applied by the plaintiff is unfair and over-reaching and exacts an

unreasonable punishment.” Harper did not cite any provision of the

Constitution or explain why the punishment was so unreasonable that it

violated due process. The district court did not rule on her conclusory and

unsupported assertion. It was not remiss in failing to do so. The point was

simply not pressed in Harper’s brief in a cognizable fashion. Instead, it was

“presented in a cursory manner” insufficient to preserve it for appeal. In re

Espino, 806 F.2d 1001, 1002 (11th Cir. 1986). 

D. “Innocent Infringer” Defense

In denying Plaintiffs’ motion for summary judgment as to damages, the

district court held that there was a genuine issue of material fact as to whether

Harper was an innocent infringer. The innocent infringer defense gives the

district court discretion to reduce the minimum statutory damages from $750 to

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$200 per infringed work if it finds that the infringer “was not aware and had no

reason to believe that his or her acts constituted an infringement of copyright.”

17 U.S.C. § 504(c)(2). Harper averred in an affidavit that she did not understand

the nature of file-sharing programs and that she believed that listening to music

from file-sharing networks was akin to listening to a non-infringing Internet

radio station. The district court ruled that this assertion created a triable issue

as to whether Harper’s infringement was “innocent” under § 504(c)(2).

Assuming arguendo that Harper made a prima facie case that she was an

innocent infringer, we hold that the defense was unavailable to her as a matter

of law. The innocent infringer defense is limited by 17 U.S.C. § 402: with one

exception not relevant here, when a proper copyright notice “appears on the

published . . . phonorecords to which a defendant . . . had access, then no weight

shall be given to such a defendant’s interposition of a defense based on innocent

infringement in mitigation of actual or statutory damages.” Id. § 402(d). 

The district court acknowledged that Plaintiffs provided proper notice on

each of the published phonorecords from which the audio files were taken. It

found, however, that regardless of Harper’s access to the published

phonorecords, such access would not necessarily put her on notice of the

copyrights: “a question remains as to whether Defendant knew the warnings on

compact discs were applicable in this [file-sharing network] setting.” The court

discounted the argument “that one need only have access to some CD and see

that the recording is subject to copyright” for § 402(d) to bar the innocent

infringer defense, because knowledge that some CDs are copyrighted does “little

to establish that, as a matter of law . . . an individual knew that she was

accessing copyright material from an entity that did not have permission to

distribute such material.” In her brief opposing summary judgment and brief

on appeal, and at oral argument, rather than contest the fact of “access,” Harper

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 And copyright infringement itself has no mens rea element. 2-7MELVILLE B. NIMMER 2

& DAVID NIMMER, NIMMER ON COPYRIGHT § 7.02 & n.26.1 (2009).

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contended only that she was too young and naive to understand that the

copyrights on published music applied to downloaded music. 

These arguments are insufficient to defeat the interposition of the § 402(d)

limitation on the innocent infringer defense. Harper’s reliance on her own

understanding of copyright law—or lack thereof—is irrelevant in the context of

§ 402(d). The plain language of the statute shows that the infringer’s knowledge

or intent does not affect its application. Lack of legal sophistication cannot 2

overcome a properly asserted § 402(d) limitation to the innocent infringer

defense. 

This understanding is supported by the historical structure of the

copyright law. What is now § 402(d) was amended as part of the Berne

Convention Implementation Act (“BCIA”), Pub. L. No. 100-568, 102 Stat. 2853

(1988). Before the Berne Convention was adopted, publishers ran the risk of

placing their work into the public domain by failing to include a notice of

copyright. “Under the BCIA,” however, “notice is no longer required at

publication.” 2-7 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT

§ 7.02(C)(3) (2009). But the BCIA, in part through § 402(d), “preserves an

incentive for use of the same type of copyright notice.” Id. That incentive is the

bar to the innocent infringer defense. Under this scheme, it would make no

sense for a copyright defendant’s subjective intent to erode the working of

§ 402(d), which gives publishers the option to trade the extra burden of providing

copyright notice for absolute protection against the innocent infringer defense.

Harper cannot rely on her purported legal naivety to defeat the § 402(d) bar to

her innocent infringer defense.

In short, the district court found a genuine issue of fact as to whether

Harper intended to infringe Plaintiffs’ copyrights, but that issue was not

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material: § 402(d) forecloses, as a matter of law, Harper’s innocent infringer

defense. Because the defense does not apply, Plaintiffs are entitled to statutory

damages. And because Plaintiffs requested the minimum statutory damages

under § 504(c)(1), Harper’s culpability is not an issue and there are no issues left

for trial. Plaintiffs must be awarded statutory damages of $750 per infringed

work. 

CONCLUSION

The district court correctly found that Harper infringed Plaintiffs’

copyrights by downloading the 37 audio files at issue. It erred, though, by

allowing Harper’s innocent infringer defense to survive summary judgment. We

AFFIRM the district court’s finding of copyright liability, REVERSE its finding

that the innocent infringer defense presented an issue for trial, and REMAND

for further proceedings consistent with this opinion. 

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