When it comes to copyright infringement, the most common defense is proof that the work was created independently and was not copied. It is essential to comprehend what the defense of the innocent offender is and what it is not, so that defendants know how and when to assert the defense or so that plaintiffs know how to overcome it. This defense is usually an affirmative one, in which the court is asked to excuse an action because the party filing the lawsuit has acted unfairly. It is a misconception that this defense applies regardless of the type of damages the plaintiff seeks for the violation.
In fact, an involuntary violation is a requirement to assert the defense, but it is not the only one. The laches defense implies asking the court to determine that the plaintiff waited too long to file a claim after learning about the alleged violation. Moreover, courts have held that this defense is only available to “unsophisticated parties” and have prevented sophisticated parties, such as large companies, from asserting it. Many defendants reflexively assert this defense without fully understanding what it means and what is required to successfully establish it. To do so, they must establish a public policy test to demonstrate that they are criticizing reprehensible content that often appears in current movies and that they are offering more socially acceptable alternatives so that families can watch movies together, without exposing children to supposed harmful effects from censorable content. Nevertheless, this defense may continue to be available in extreme circumstances to limit equitable redress at the beginning of litigation.
Therefore, a plaintiff who wants to avoid the possibility of recourse to this defense must seek compensation for actual damages under Section 504 (b) instead of legal compensation under Section 504 (c).
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