SCOTUS won't hear Texas appellant on digital music downloads

The US Supreme Court declined to hear a case involving a Texas teen and who claimed to be an "innocent infringer" regarding illegal music downloads, but I was interested to read Justice Alito's dissent (pdf) to the decision to deny cert. Alito noted that under federal law "if a prescribed notice of copyright 'appears on the published phonorecord or phonorecords to which a defendant . . . had access, then no weight shall be given to . . . a defendant’s interposition of a defense based on innocent infringement.'" However, in the era of digital music, the concept of a "phonorecord" becomes inapplicable, particularly since under 17 U. S. C. §101, “‘Phonorecords’ are material objects” and digital audio files are not.

For that reason, Alito argued "There is a strong argument [the law] does not apply in a case involving the downloading of digital music files." He believes that "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." For now, in the 5th Circuit, the opposite view will prevail. But it seems to me he's made an excellent point.