RIAA Foiled By "Innocent Infringement" Defense

NewYorkCountryLawyer writes "In an interesting development in a Texas case against a college-age defendant who was 16 at the time of the infringement, the Judge has denied the RIAA's summary judgment motion and ordered a trial of the damages — even though the defendant admitted copyright infringement using Kazaa — based on the 'innocent infringement' defense, which could reduce the statutory damages to $200 per song file. Relying on BMG v. Gonzalez (PDF), the reasoning of which I have criticized on the 'innocent infringement' issue, the RIAA argued that Ms. Harper does not qualify for the 'innocent infringement' defense, since CD versions of the songs, sold in stores, have copyright notices on them. In its 15-page decision (PDF) the Harper court rejected that contention, holding that 'a question remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting,' since 'In this case, there were no compact discs with warnings.' Finding that there was a factual issue as to what the defendant knew or didn't know at the time of the infringement, the Court ordered a trial of the damages unless the RIAA agrees to accept $200 — rather than the $750-plus it seeks — per infringed song."

Comments

Under age

[Anonymous Coward]

A person under 18 cannot sue or be sued, without a hell of a bunch of oppostion.
We seem to forget that.

Re:Under age

[philspear]

The RIAA has never cared about opposition. What are you going to do, continue to not buy CDs from them? Even if they were to announce that for every song stolen, they would kill a puppy in a country where there are no animal cruelty laws, they would still keep doing brisk buisness: the teenagers buying mainstream CDs at walmart don't care about things like that.

Re:Under age

[Anonymous Coward]

Just so everyone knows, AC is wrong (in the US at least). Minors can both sue and be sued just as easily as an adult, they just need the appointment of a guardian ad litem to represent their wishes.

Whether or not there is opposition will depend on the case; I doubt anyone would get bent out of shape over suing a minor for material damages after they vandalize a car, for example.

Re:Under age

[JohnnyGTO]

I have honestly refused to buy a cd since all this shit started. If you want to support the artist, go to their concerts, buy their swag or send them cash but for Heavens's sake stop enriching those fat bastards at the RIAA. I don't download music either, I just got XM and settle for that.

Re:Under age

[ronocdh]

I have honestly refused to buy a cd since all this shit started.

I hope you mean that you've refused to buy any CD published by a label represented by the RIAA. Otherwise it'd just be stupid.

Re:Under age

[Anonymous Coward]

Sez who. Kids can be sued in tort. If a seventeen year old gets in a car and mows somebody down accidentally you bet your bottom dollar he's liable in tort. He may be judgment proof, but that's a different issue.

Re:Under age

[Khaed]

Wait, you mean my boycott of blank CD-RWs is stupid?

Damn it, here I am backing up all my media to floppies for nothing...

Re:Under age

[Dan541]

Do teenagers buy CDs?

Even if they were to announce that for every song stolen, they would kill a puppy in a country where there are no animal cruelty laws,

We just have to take sides with PETA who have nut jobs to kill an RIAA executive for every puppy killed.

Re:Under age

[syntek]

You said liable in court. Not sued. You can not sue an individual under the age of 18 in the US. You can have charges brought against you if you kill someone, but you can't be sued for damages.

Re:Under age

[sunburntkamel]

Don't use the RIAA's list. they've repeatedly continued to list labels that oppose their tactics (e.g., Epitaph). Use the the RIAA Radar instead.

Re:Under age

[JohnnyGTO]

Ya the RIAA - Recording Industry Association of Angola. Can't buy from those bastards.

Re:Under age

[JohnnyGTO]

Nice link thanks! but it doesn't load... those bastards struck again!

Re:Under age

[Anonymous Coward]

Sir, you're wrong. Of course you can sue individuals under the age of 18 in all fifty states and they can be held liable. Tort liability and immunity from suit is controlled by state law in each state. How you got the idea a minor is not a proper party to a civil lawsuit in the United States is beyond me; it is a misconception. Minors get sued all the time, especially if the minor's acts or omissions are covered by insurance. (The first rule of litigation is, don't sue people who don't have money to satisfy a judgment; insurance means there is money to satisfy a judgment.)

"The general rule is that an infant [i.e., a minor] has no tort immunity based solely on the fact of infancy. On the contrary, infants are usually liable for both their negligent and their intentional torts." Prosser and Keeton on Torts (5th ed.), at p. 1071.

Re:Under age

[Anonymous Coward]

Wait, you mean my boycott of blank CD-RWs is stupid?

Damn it, here I am backing up all my media to floppies for nothing...

amazing. simply amazing lol.

Re:Under age

[Anonymous Coward]

Children have to be represented by their parent or guardian or next friend, and that parent or guardian or next friend is typically represented by counsel, but children are proper plaintiffs everywhere in the United States. There is nothing odd about it.

Re:Under age

[olddotter]

RIAA doesn't care about winning the suit. This is free advertising. Its cheaper to pay lawyers 6 figures to sue, than to buy millions in advertising that the target market probably ignores anyway.

Why don't they sell songs at $200 a pop?

[pembo13]

If that is the value, why are they taking such a loss on the sale?

Re:Why don't they sell songs at $200 a pop?

[strabes]

A penalty is fine, but a 2000% penalty? The percentages aren't that high on anything else...

Re:Why don't they sell songs at $200 a pop?

[causality]

A penalty is fine, but a 2000% penalty? The percentages aren't that high on anything else...

But, but but this is electronic media! It involves computers and intarwebs and a series of tubes and electrons and stuff, you're supposed to abandon all logic and common sense and instantly enter into Dummy Mode whenever that's the case! Certainly you can't use critical thinking and compare it to the penalties you'd face when dealing with anything else! Why, that might amount to treating IP as though it were like tangible property! Oh, wait...

Re:Why don't they sell songs at $200 a pop?

[gbjbaanb]

its not, its the value of the loss of sales due to distribution - ie if I use a P2P app and ten people download the song I'm uploading, that's 10x the cost of the song I've cost the RIAA.

At least, that's the excuse for suing for so much. Don't forget the RIAA wants $750 per song, not $200.

Re:Why don't they sell songs at $200 a pop?

[Tuoqui]

So they can inflate the piracy numbers. If they sell it at $0.99 they'll be able to claim the other $749.01 as piracy damages. Also known as creative accounting or fraud.

Re:Why don't they sell songs at $200 a pop?

[TheRaven64]

Note that it's $200 per song (actually, per work, as I recall, which might mean per album), not $200 per copy. $200 to produce a song is very cheap.

Re:Why don't they sell songs at $200 a pop?

[Sebilrazen]

A penalty is fine, but a 2000% penalty? The percentages aren't that high on anything else...

It gets worse, it's actually a 20,000% penalty.

Original value = 100% ($.99/song) or ~$1.00
200% = 2 * 100% = ~$2.00
~$20.00 = 2,000%
~$200.00 = 20,000%

Re:Why don't they sell songs at $200 a pop?

[strabes]

You're right. 2000% would be a mere $20. Hardly enough to compensate for all the pain caused by downloading a file.

Re:Why don't they sell songs at $200 a pop?

[Anonymous Coward]

So they can inflate the piracy numbers. If they sell it at $0.99 they'll be able to claim the other $749.01 as piracy damages. Also known as creative accounting or fraud.

Lost sales have nothing to do with an earnings lost (e.g., negative earning per quarter). A 'lost sale' due to piracy is of no greater accounting worth than a 'lost sale' due to excessive price, competition, or "our product sucks". Furthermore, when separating actual damages from punitive damages, there is NO requirement that actual damages be the same as a sticker price. Actual damages may include legal fees, interest, and other costs associated with recovery. $750 per song might be a bargain. Likely, a flat rate with additional 'per song' costs would be more reasonable.

FWIW, I would just assume they get rid of copyrights and patents. That said, if you intentionally throw a rock threw my window, I am going to want a lot more than just the cost of replacement. Especially if I have to chase you down to get it.

Re:Why don't they sell songs at $200 a pop?

[TheVelvetFlamebait]

But, but but this is electronic media! It involves computers and intarwebs and a series of tubes and electrons and stuff, you're supposed to abandon all logic and common sense and instantly enter into Dummy Mode whenever that's the case!

Oh gee, how ironic. Can't you show some independent thought and actually try to follow the logic? Dummy mode seems exactly to be what you are stuck on now that the intarwebs has been mentioned.

The 2000% penalty comes from the fact that:

a) this particular offence is extremely common and widespread and
b) is more damaging that most people realise

I'll give you the chance to follow that logic yourself and jolt yourself out of this intellectual laziness (unless, of course, it's just plain intellectual limitation).

Re:Why don't they sell songs at $200 a pop?

[DinDaddy]

b) is more damaging that most people realise

And yet still far less damaging than they claim.

Re:Why don't they sell songs at $200 a pop?

[mdwh2]

What if they made a copy of your window, and then threw a rock at that?

I still don't understand

[AlphaLop]

How the RIAA can claim that someone downloading a song that could be purchased on Itunes for a buck or two is worth that much money in damages. I am so tired of the government using its power to prop up failed business models.

Re:I still don't understand

[philspear]

It's not the government using it's power to prop up a failed buisness model. This is the RIAA using the legal system to try to prop up their diminishing buisness by bullying people who share music.

There are certainly some people in government who are sympathetic to the RIAA because of legal bribes in the form of lobbyists and campaign contributions, but that's not the whole government and in this instance, the biggest government involvement is that the legal system is being used by the RIAA.

What you're talking about would be if the government subsidized the RIAA's DRM attempts or things like that. Maybe they do that already, I don't know, but this isn't that.

Anyway, as to why it's so much, it's because sharing music is actually illegal (note that I am not saying it should be or that the RIAA has morality on their side or their tactics are justified, or even that they shouldn't all be shot). It's like asking why tickets for possession of pot are so high. You're not causing any damage to anyone, the fines don't make sense in that reguard.

The only answer is because it's illegal and in many cases, some people have interests in seeing the law enforced even when there's no real benefit to society in it. They fine you for posession because it's illegal, they don't think they like pot smokers, and they can.

Re:I still don't understand

[causality]

It's not the government using it's power to prop up a failed buisness model. This is the RIAA using the legal system to try to prop up their diminishing buisness by bullying people who share music.

There are certainly some people in government who are sympathetic to the RIAA because of legal bribes in the form of lobbyists and campaign contributions, but that's not the whole government and in this instance, the biggest government involvement is that the legal system is being used by the RIAA.

What you're talking about would be if the government subsidized the RIAA's DRM attempts or things like that. Maybe they do that already, I don't know, but this isn't that.

The perception occurs because anytime the RIAA/MPAA asks for tougher, more punitive copyright laws, they get what they ask for with little or no opposition. I doubt very strongly that any of the Congresscritters who pass such laws are under the illusion that the RIAA/MPAA have no intention of using them. So, directly like what you describe or indirectly, the government has been their best friend for some time now when it comes to delaying the inevitable. The inevitable, of course, is that eventually there will be little or no need for a middleman like the record companies to control distribution, at which point the RIAA/MPAA's current business model is fully obsolete. What will replace it? I could speculate but I don't really know. I do know that I'd like to find out; I honestly believe that the finest music in the world isn't worth the corruption and the intimidation and the persecution that the *AAs have perpetrated in the name of their financial interests.

Re:I still don't understand

[strabes]

By definition any industry that needs a subsidy is a "failed business model," except that it hasn't failed yet because there are government subsidies. (example: US farms - although they would probably not fail, they'd just have to innovate instead of get paid to not grow anything).

Re:I still don't understand

[brusk]

That's absurd. Any business that relies on free road transport--which is a massive subsidy from the government--is by your definition following a failed model. So is any business that depends on its workers having received public education, rather than teaching them to read and count itself. Just about every business benefits from something it doesn't have to produce itself, from free fire protection to law enforcement to low-priced electricity. The only meaningful policy questions are which subsidies/price structures are good ones.

Re:I still don't understand

[east coast]

There are certainly some people in government who are sympathetic to the RIAA because of legal bribes in the form of lobbyists and campaign contributions

And there are certainly some people in the government who swore to uphold the law even if they feel it isn't 100% correct. There is a system in place for changing laws that are out of line with the good of the people but the wanton breaking of laws isn't part of that system. It would be much different if any of this was done as a form of protest but none of it is. And even in protest it should only be done to show how absurd the law really is. If this kid was doing it in protest he would have proclaimed his guilt proudly along with some statement. Instead he, and most of his ilk, hide behind excuse after excuse and hope for the best. Anytime one of these people slips through the fingers of system you guys act like it's some great victory. The only victory from your camp should be a meaningful change to copyright law but next to none of you are active in this cause. Sure, lobbyists hold power but the people who proclaim to be for sensible copyright have a representation too but the vast majority of you have no interest in the legitimate fight, only the free music that's to be had.

The only answer is because it's illegal and in many cases, some people have interests in seeing the law enforced even when there's no real benefit to society in it. They fine you for posession because it's illegal, they don't think they like pot smokers, and they can.

The problem with marijuana at this point isn't the recreational user, for the most part, but the organizations that drug money keeps alive. The fact is that drug money keeps gangs together and keeps violence on the street. It's no different than the alcohol prohibition.

Marijuana laws are another area that I think a lot of people would be behind reform but sadly the violence on the streets and the other unwholesome activities of criminal organizations are going to continue to be fueled by casual users until marijuana is legally sold through regulated dealers.

And again, smoking a joint and listening to Pink Floyd in your living room isn't a legitimate form of protest.

Re:I still don't understand

[Anonymous Coward]

Difference is, the business model doesn't depend on a subsidy that's not available to any other business model.

A public service is not a subsidy. It's not money being /paid/ to the business.

Re:I still don't understand

[sjames]

Roads are paid for with taxes. Businesses pay taxes. So that's not a subsidy.

Re:I still don't understand

[Anonymous Coward]

A heavy lorry does 100,000 times as much damage to the road as a car (and that's an old statistic; lorries in Europe are 50% heavier now). Here in the UK the vast majority of road tax is paid by car drivers. The vast majority of the damage to roads is done by heavy lorries. Businesses that use heavy lorries are being massively subsidised.

Re:I still don't understand

[dogeatery]

Your point still stands, however, I'd like to point out that US "farms" are not what they were when the subsidy was first conceived. Today it's big-time agribusinesses like Tyson, who run factory operations that hardly resemble "farming." They are getting paid subsidies in spite of their massive profit margins.

Re:I still don't understand

[strabes]

You are totally correct, although I'd still oppose them even if they were still family farmers. If domestic industries can't compete with the rest of the world, there is no reason to tax our citizens, give the money to domestic farmers, protect those farmers with import quotas / tariffs, all of which unjustly transfers wealth and raises food prices to domestic consumers. We don't support other failing industries to the same extent.

Re:I still don't understand

[brusk]

Your argument is specious. First, not all businesses pay taxes directly, and their payment of taxes is unrelated to their level of road use (unlike, e.g., their payment of tolls on toll roads). Second and more fundamentally, you define away ANY subsidy. By your logic, if the government gives $100 million to any company that makes products that are yellow, because the President thinks yellow is cool, that's not a subsidy so long as the companies pay at least $1 in taxes. But the one has nothing to do with the other.

Re:I still don't understand

[soupforare]

There's a difference between public schooling or roads and handouts.

Re:I still don't understand

[brusk]

Not a sharp one. What about a public road that leads only (or mainly) to a factory? That's a handout to the company. Or publicly-sponsored training in specific skills that are useful to a particular industry, for example carpentry classes in community colleges. That's a handout to the construction industry, especially if the other industries have to pay to train their employees. I'm not saying either is automatically a bad thing, just that there's no clear line between a legitimate policy and a "handout." It's actually a very difficult distinction to make.

Re:I still don't understand

[sjames]

At least here in the U.S. a tax (registration fee) is paid for each vehicle and is presumed to cover the cost of the roads the vehicle may use. Interstate trucks are often required to pay those fees in each state that it may visit. Many states additionally apply a fuel tax.

Your case is clearly a subsidy since the taxes the business pays clearly are not even intended to cover the expenses of the givaway program.

In the case of businesses that have some sort of special deal to not pay taxes, they may indeed have a failed business model that is being propped up by subsidy. They may also have a workable business model (if they COULD pay the taxes and remain profitable) and a sweetheart deal on top of it.

Re:I still don't understand

[brusk]

You seem to live in a fantasyland in which taxes are basically user fees directly proportional to expenses incurred. That's just not workable in reality, which is too complex to determine the cost of a given public service. If a street has five businesses on it, and four shut down, should the remaining one have to pay more in road taxes to cover the decreased revenue from the others? That would be the logical outcome of your position. Who really presumes that registration fees cover the expense of road building and maintenance?

Re:I still don't understand

[RincewindTVD]

I think it could come down to something like
"Does your business receive more subsidies than tax payed".

Many US farms fail on this, though I don't think the RIAA does.

Re:I still don't understand

[sjames]

Did I say the accounting was down to the microcent? That would be more expensive to work out than the service being paid for.

The point is that taxes are paid in support of the public good. Some of them are meant to be roughly proportional to use (which is why vehicle tags cost is based on vehicle weight, that is, the wear and tear they will put on the road). The public services businesses use that are paid for with taxes assessed on the business cannot be called subsidies.

If the accounting is off, that's not the businesses problem any more than it is yours if the electric company stupidly chooses to charge less than the generation cost for the power you use.

Re:I still don't understand

[brusk]

But business taxes are generally based on profit, not on public expense incurred. A company that makes a million dollars one year and nothing the next--even though it used the same amount of public resources--pays very different taxes. *Some* taxes are related to resources used, e.g. property taxes, but not very directly.

And of COURSE it's my problem if the electric company (which in many places is a public utility, supported by public bonds) undercharges: it might raise my rates well above cost the next year to recoup its costs, or its pricing might lead to brownouts, a la Enron-era California.

Re:I still don't understand

[sjames]

But business taxes are generally based on profit, not on public expense incurred.

So are personal taxes such as federal and state income tax. Vehicle registrations (the ONE and ONLY instance that was being discussed) are not based on income.

Poor RIAA...

[m3j00]

I guess they'll have to settle for a 20,000% markup on the songs instead of the desired 75,000%

this should end someday

[jacquesm]

With the riaa being able to claim actual damages for each song that got provably copied between two people that did not have an existing prior relationship (because then their regular levies apply). That's a pretty tall hurdle.

Anything less than that and the consequences will be more than you could possibly imagine.

"making available"

[l2718]

It seems comments don't carry over from the firehose posting?

In any case, in addition to the (partial) win on the damages, the girl lost an argument with much wider implications. Her laywer tried to argue that only for the files the RIAA's investigator actually downloaded was there actual evidence for infringement (these were 6 among 39 song she's being sued over). Oddly the lawyer didn't argue that downloading by the RIAA can't be infringement by definition. The court instead agreed with the RIAA that merely making a file available was sufficient to establish infringement. This will now give the RIAA further ammunition when the continue using the argument.

Re:"making available"

[Volante3192]

The court instead agreed with the RIAA that merely making a file available was sufficient to establish infringement. This will now give the RIAA further ammunition when the continue using the argument.

And when the defense brings up Atlantic v. Howell, we can hope that even the 'making available' bit goes away.

Re:"making available"

[Anonymous Coward]

RIAA investigators? In Texas? Didn't a Texas judge forbid the "RIAA investigators" from operating in Texas without a private investigator license? Did they finally get licensed in Texas or are they in violation of Texas state law and a court order?

Re:"making available"

[Tim C]

Oddly the lawyer didn't argue that downloading by the RIAA can't be infringement by definition.

Well the girl wasn't authorised to distribute the songs, so surely it doesn't matter who she distributed them to?

Re:"making available"

[gnasher719]

Well the girl wasn't authorised to distribute the songs, so surely it doesn't matter who she distributed them to?

Well, if the copyright holder himself asks you for a copy, or an authorised agent of the copyright holder, then it surely is authorised.

If Bill Gates' laptop crashes and he needs a new copy of the OS, you can give him your copy to install it. That is as long as he uses Linux or Windows, not if its MacOS X :-)

Re:"making available"

[Darkness404]

How isn't it important? In the physical world, if you burn a CD and give it to the bands that made the CD it isn't infringement, as long as you legally bough the CD. And the RIAA isn't suing for downloading.

Re:"making available"

[Anonymous Coward]

Read this post/thread>/a>.

Re:"making available"

[devman]

Defendents, it seems, almost never get the benefit of hindsight in there defenses nor can hindsight be used against them. There is no way she could have known that the person downloading from her was an authorized agent.

Re:"making available"

[againjj]

Just to be nit-picky, Microsoft has the copyright on Windows, not Gates.

Don't forget...

[Anonymous Coward]

and that mangy mutt.

You're not a good writer.

[Anonymous Coward]

Your first sentence is not a complete sentence at all. Your second one is a little better. Your third one appears completely out of context (i.e. less than what? what consequences?) probably because you botched the first sentence so badly. So, what the hell are you saying? Try again, this time while making sense. Thank you.

Re:You're not a good writer.

[jacquesm]

let me try again, sorry, it's late and I'm tired :)

The RIAA is claiming far more then the actual damage for copying a single song (this has happened many times), imagine the owner of a car being able to claim damages 10 fold or 100 fold to the value of the item stolen or damaged.

Then there's the fact they seem to be able to do so on the *possibility* of infringement, without being held to any substantial burden of proof that an infringement actually took place.

I can't even come up with a good real world analogy to that, but it's clearly bogus.

The only way I can see this end is when the RIAA or whatever agency is the one to go after infringement is able to prove conclusively:

"That two people that have not had prior contact infringed" (otherwise it's covered under various blank media levies)

Technically that's a pretty tall hurdle to cross (it can really only be proven by knowing a lot about the parties and by sniffing the traffic), if they get away with establishing a lesser standard then all kinds of parties with claims as superficial as the RIAA's will suddenly think they have a case and may be able to use the RIAA's cases as precedent.

Better now ?

j.

Re:You're not a good writer.

[Anonymous Coward]

It's a civil case. Any lawyers can correct me if I'm wrong, but I believe the burden of proof in these cases is only a preponderance of the evidence.

I'm not saying they've proven their case, but it really shouldn't take much to prove their case unless the defense actually has a defense. I'm guessing that in most cases their defenses are pretty weak.

Re:You're not a good writer.

[jacquesm]

except that me saying you could have stolen my stuff is not much of an offence at all. And that's the level at which the current cases are being waged, there literally is NO PROOF of infringement in the traditional sense (I have proof because I have a copy that you have distributed to some third party that had no business having it).

That's the whole problem with these cases. At a minimum there should be two parties to a transaction, not one potential and a party that already had the rights.

Innocent? It could happen...

[Channard]

.. because, leaving aside all the RIAA's bullshit for a minute, I've had a couple of people in my store who thought they could legally download music. Most people just go.. 'yeah, everyone does it..' - but these people bought Kazaa or Audiogalaxy or something for thirty quid and thought that gave them the right down to download music for free. They seemed genuinely surprised when I explained it.

Re:Innocent? It could happen...

[Darkness404]

Exactly. Just like if I buy pirated software, more often not I am treated as some kind of victim (now, not sure how I would be a victim because I got working software at a decent price, but now the makers want to take that away...)

Re:Innocent? It could happen...

[sm62704]

You CAN legally download music. Most artists want their music to be shared; it's one of the few ways to get it out in front of people.

The only music copyright holders who don't want their music to be shared is the RIAA labels, and the real reason is that they don't want you to hear the competetion (the independant, unsigned artists). Otherwise why let the radio play it for free? The labels have gotten in trouble before for PAYING stations to play their music.

Except for a signed band, only a fool doesn't want his music shared. Most bands are not RIAA label bands. Most music is not RIAA label music. Most music CAN be legally shared.

$200 a song..

[Anonymous Coward]

$200 dollars a song is still eff'in outrageous I can't fathom how they're allowed to charge hundreds of times more than retail price. The guy could walk up to a BMW, bash the windows in and pay less.

I'm not sure I buy it

[Anonymous Coward]

When I was 16 and downloading music from napster, kazaa, or whatever other service was hot at the moment I knew that it was illegal. If I'd have ever been caught and brought to trial (although unlikely as they hadn't started using such intimidation tactics yet.) I would have probably claimed the exact same thing.

Of course it's possible that if someone doesn't have a decent understanding of how the software works, it's plausible that a person could honestly be ignorant, but for anyone who frequents slashdot or has any small amount of knowledge about computers probably knows better.

Of course this never really stopped any of us from doing it. The price was free and most of us had little or no disposable income at the time. Now that I'm older and actually have money of my own I don't bother pirating music. There are plenty of places online where I can listen to it free of charge if I want and decide whether or not I'd like to buy it from iTunes, Amazon, or preferably from the band's website.

Interestingly enough, since I started getting music online, I've never purchased a CD from a store again. In fact the only CD's that I've purchased at all since high school have been from bands if I go to a concert and enjoyed it enough to buy at $10 CD. I can understand keeping physical media around for people who don't want to get their music digitally, but for as much as the RIAA has been fighting online distribution they may have been significantly more successful if there had been an iTunes-like service around when I was in high school that had a good selection at a fair price.

Most people will do the right thing if you give them to opportunity to do so, but if there's only one song off of a CD that a kid wanted, they weren't about to spend $15 on it.

Re:I'm not sure I buy it

[Slashdot Suxxors]

When I was 16 and downloading music from napster, kazaa, or whatever other service was hot at the moment I knew that it was illegal.

Yes, but you're not the average joe. Average Joe's don't read Slashdot. (Or average jane in this case.)

Re:I'm not sure I buy it

[gnasher719]

Of course it's possible that if someone doesn't have a decent understanding of how the software works, it's plausible that a person could honestly be ignorant, but for anyone who frequents slashdot or has any small amount of knowledge about computers probably knows better.

I have seen advertisements for software that really did sound as if you could download millions of songs legally (that's what it advertised: Download millions of songs legally). Maybe a lawyer with a very suspicious mind would have figured it out just by reading the advert, I figured it out because I _know_ there are no millions of songs that you can get legally and for free and therefore knew what words to look for in the advert, but to anyone who doesn't know about that subject it looked totally genuine. I thought it was disgusting.

If you download music illegally, and you know what you're doing, that's fine with me; you know the risk, you take your chances. But that kind of advert could get someone into deepest trouble who doesn't have the slightest idea they are doing anything wrong.

Innocence vs Ignorance

[Nymz]

Innocent Infringement is an exception made for people that deal with media, like schools, libraries, radio, and tv. If someone acts in accordance with the law, every day, then we aren't going to consider them a criminal because of a single accident. Someone doing nothing but copyright infringement, doesn't qualify under the innocent infringement exception, but is instead ignorant of the law. Whether copyright law is just, or needs updating for the 21st century is another matter.

Re:Innocence vs Ignorance

[kaos07]

No, this isn't an "Ignorance of the law" argument. Well that really isn't an argument anyway, I don't think their lawyer would be dumb enough to run it. The thing with copyright is that it's only a "infringement" if the item is indeed under copyright and it's labelled as such. If it isn't labelled how is the person to know whether or not it's under copyright? This is what is being argued here. The defendant saying "It was innocent infringement because whilst I accept downloading the songs I didn't know they were under copyright".

What is "innocent infringement"?

[d_jedi]

IANAA (not an American :->) and IANAL, so I don't know what this concept is.

Re:What is "innocent infringement"?

[Fumus]

JFGI.

Copyright infringement is the violation of any exclusive right held by the copyright owner. Infringement may be intentional or unintentional. Often called "innocent infringement," unintentional infringement occurs when an author creates an ostensibly new work that later proves to be a mere reproduction of an existing work, though the author was unaware of the identity between the two at the time the copy was made. For example, former Beatle musician George Harrison was guilty of innocent infringement when he released the song "My Sweet Lord," which a court found was the same song as the Chiffons' "He's So Fine," only with different words. The court said that Harrison had "subconsciously" borrowed the Chiffons' unique motif.

Re:What is "innocent infringement"?

[Kjella]

If you are or should be aware that you're infringing copyright it's 750-150000$ per work, if you're not it's 200-30000$. Since it's a liability issue, the reasoning is that even if you weren't aware you were breaking any copyright, the copyright holder has still suffered damage and must be compensated. Of course, since they cost 99 cents at iTunes any such logic is out the window.

Re:What is "innocent infringement"?

[Anonymous Coward]

No an american and don't do anal, not much fun in you, eh?

She can't make legal downloads now?

[whoever57]

including without limitation by using the internet or any online media distribution system to reproduce (i.e., download) any of Plaintiffs' Recordings,

This looks like an injunction against the use of iTMS or any other online music store. Am I reading this correctly?

Re:She can't make legal downloads now?

[Amorymeltzer]

Read the whole thing:

...including without limitation by using the internet or any online media distribution system to reproduce (i.e. download) any of Plaintiffs' Recordings, to distribute (i.e. upload) any of Plaintiffs', or to make any of Plaintiffs' Recordings available for distribution to the public, except pursuant to a lawful license or with the express authority of Plaintiffs.

Emphasis mine.

too late

[l2718]

And when the defense brings up Atlantic v. Howell, we can hope that even the 'making available' bit goes away.

It's too late for the defense to raise new sources: the court has already ruled on this dispute. If they wanted to cite Atlantic v. Howell they should have done it already. Now the judge says that since it was agreed that files were "made available", infringement has already been established and all that remains is to decide on the damages. This is really serious -- the problem is the reverse of what you claim. Now whenever a defendants will cite Atlantic v. Howell, the RIAA will cite Maverick v. Harper in return.

Re:too late

[NewYorkCountryLawyer]

And when the defense brings up Atlantic v. Howell, we can hope that even the 'making available' bit goes away.

It's too late for the defense to raise new sources: the court has already ruled on this dispute. If they wanted to cite Atlantic v. Howell they should have done it already. Now the judge says that since it was agreed that files were "made available", infringement has already been established and all that remains is to decide on the damages. This is really serious -- the problem is the reverse of what you claim. Now whenever a defendants will cite Atlantic v. Howell, the RIAA will cite Maverick v. Harper in return.

I don't think it's as serious as all that. But I can't go into detail, wouldn't want to tip my hand. The RIAA is not celebrating this decision; believe me.

Re:too late

[rts008]

Well, when you do tip your hand I hope that the RIAA feels properly violated in a most uncomfortable fashion.
With your history here, I expect you will share the joy with us.

Keep fighting the good fight for us Ray, your efforts leave me all warm and fuzzy inside! :)

Re:too late

[NewYorkCountryLawyer]

Well, when you do tip your hand I hope that the RIAA feels properly violated in a most uncomfortable fashion. With your history here, I expect you will share the joy with us. Keep fighting the good fight for us Ray, your efforts leave me all warm and fuzzy inside! :)

I have a hunch the RIAA's going to take their $200 and run. They don't want to be around when this judge figures out he's been sold a bill of goods.

Re:too late

[rts008]

When the judge figures it out, can he/she do anything about it? (obviously IANAL, armchair or real!)

Re:too late

[NewYorkCountryLawyer]

When the judge figures it out, can he/she do anything about it?

Yes.

The real question is whether the judge will find out about it. If the case gets closed out now, he may never find out about it. If the case goes to trial, he likely will find out about it.

Re:too late

[rts008]

Ahh...I see where this could get tricky.

Thanks for the reply.

Re:too late

[Andy_R]

"The real question is whether the judge will find out about it."

Ok, stupidly obvious question here, but I suspect the reply might give some interesting insight into the US legal system...

Why doesn't someone simply tell the judge about it?

Re:too late

[NewYorkCountryLawyer]

Why doesn't someone simply tell the judge about it?

Defendant is represented by counsel. I'm sure her counsel will tell the judge about it, if it comes up. If the RIAA takes the judge's offer, though, it might not come up.

This at least has a basis

[way2trivial]

it's punitive, and can be reasonable -it is meant to be a deterrent-- it is reasonable to make the financial recompse for a crime more than what the thing is worth at retail

if you shoplift, many state laws allow the store to require recompensation in
excess of the item stolen, this to repay the costs of having the security that the thieves make necassary.

Re:This at least has a basis

[decoy256]

The question is not whether there should be punishment, the question is whether the punishment fits the crime. $200 a song is outrageous (let alone the $750 normally fined). There is a huge difference between punishment and enslavement. This person would have to work forever to pay off this debt. That hardly fits the crime. Make him pay 2, 3, 4 or even 6 times the cost of the song and that would be punishment enough... but 200 times?!? That is unconscionable. The RIAA needs to be taken down a few notches and SHAME on the courts for allowing them to run their racket as long as they have.

Re:This at least has a basis

[NewYorkCountryLawyer]

The question is not whether there should be punishment, the question is whether the punishment fits the crime. $200 a song is outrageous (let alone the $750 normally fined). There is a huge difference between punishment and enslavement. This person would have to work forever to pay off this debt. That hardly fits the crime. Make him pay 2, 3, 4 or even 6 times the cost of the song and that would be punishment enough... but 200 times?!? That is unconscionable. The RIAA needs to be taken down a few notches and SHAME on the courts for allowing them to run their racket as long as they have.

I agree, decoy. Hopefully, though, the judges are starting to get wise to the fraud that has been put over on them.

Re:This at least has a basis

[stewbacca]

something about not being able to do the time comes to mind...

Re:This at least has a basis

[Yvan256]

Especially since people who download tunes don't stop at one tune.
  Let's say 100 tunes x 4$ = 400$. That's not something you can easily push aside as being "outrageous" or "taking forever to pay back" even for low-income people (even if it takes, say, 8 months to pay it all).

Even at four times the iTunes cost (4x1$), it could cost a lot pretty quickly. And slashdotters wouldn't be so mad at the RIAA, I suppose (a fine of 400% would be a reasonable punishment, especially compared to 2000% or even 7500%).

Re:This at least has a basis

[decoy256]

Yes, and something from the Constitution comes to mind... something about cruel and unusual punishment. If you can't be sent to prison for life for shoplifting, why should the RIAA be able to charge you 750 times the sale price (the court was going "easy" on the defendant here by only fining him 200 times the sale price) of their crappy music? Again, read my post... I don't necessarily have a problem with the existence of punishment for these crimes... it is the severity of the punishment that I think is outrageous. You don't see a 20,000% mark-up a little unconscionable?

Re:This at least has a basis

[decoy256]

Thank you, that is exactly my point. If this guy download 1 CD worth of songs (10 songs), they are going to fine him $2,000 dollars. That is pretty darn steep. But more than likely, he downloaded more than just 1 CD worth... he probably download 10 or 50 or 100 CDs worth. So he's looking at maybe $200,000 in fines. The RIAA should not have that kind of power... no one should.

Re:This at least has a basis

[Hope Thelps]

it is reasonable to make the financial recompse for a crime more than what the thing is worth at retail

Although there are circumstances in which copyright infringement can amount to a crime, nobody has alleged that such is the case here. This is a purely civil matter.

Re:This at least has a basis

[dirk]

The reason most people think the fines are unreasonable is they think of them in terms of what it costs to buy a song. The mistake though is that this isn't about a person downloading a song that they don't have the right to have a copy of, but it's about a person distributing a song they don't have the rights to distribute. You can't base the fine on what it costs to buy a song but what it would cost to have the rights to distribute the song. If I went to the RIAA (well technically to the label) and asked what it would cost for me have the rights to allow anyone who visits my website to download a copy of that song, what do you think it would cost (assuming they even would agree to it)? That is what the fine is (and should be) based on. It's not the cost of purchasing a song, but of distributing the song.

Re:This at least has a basis

[stewbacca]

If you want to posit that seeking $200 in damages for a $1 song is "cruel and unusual" punishment, then we have nothing to discuss, because you are crazy. If I steal something from a grocery store (say a stick of gum) I wouldn't expect to be let of for less than THOUSANDS of dollars. The 8th ammendment also only applies criminal cases. If the RIAA is suing, then it isn't a criminal case. If it IS a criminal case, then the RIAA doesn't get to set the penalty, so stop blaming the RIAA.

Re:This at least has a basis

[decoy256]

Except that is not what the legislation fines you for... it fines you for downloading the songs, not for distributing them. And that is not what this individual is being fined for.

Re:This at least has a basis

[decoy256]

The 8th ammendment also only applies criminal cases. If the RIAA is suing, then it isn't a criminal case. If it IS a criminal case, then the RIAA doesn't get to set the penalty, so stop blaming the RIAA.

Where did you go to law school?

The 8th amendment applies to government actions. Here, the government action is in establishing the law that permits the RIAA to obtain punitive damages 200 times in excess of any actual damages. If there was no such law, the RIAA would have to prove the justification for punitive damages in every case. But the RIAA paid off a few congressmen and got this sweatheart deal passed through.

The government established a law and that governmental action must be scrutinized under the Constitutional limitations put on Congress, in this case the 8th amendment.

Re:This at least has a basis

[stewbacca]

Please tell me where I made a factual mistake. The 8th ammendment applies to criminal cases, period. If the RIAA is suing, then it is a civil case. If the guy is being prosecuted, then it is a criminal case, and the RIAA has no say in what the penalties are. So yes, the 8th ammendment scrutinizes the government actions (which is exactly what I mean when I say the RIAA is not to blame here, because the RIAA is not the one "supposedly" violating the constitution). Blame the government, blame the law, don't blame the RIAA for following the laws that are in place. If you don't like it, challenge it to the Supreme Court (and good luck with the "cruel and unusua" bit, or even the "excessive fines" bit, because $199 on top of the cost of something is hardly excessive.

Re:This at least has a basis

[decoy256]

Please tell me where I made a factual mistake. The 8th ammendment applies to criminal cases, period.

The 8th amendment has not been applied only to criminal cases. In Austin v. United States, 509 U.S. 602 (1993), the Court noted that the application of the excessive fines clause to civil forfeiture did not depend on whether it was a civil or criminal procedure, but rather on whether the forfeiture could be seen as punishment.

In addition, punitive damages are established by the state either through case law or legislation, so regardless of how it is used in civil cases by private parties, it still originates from governmental action and therefore triggers the 8th amendment.

So yes, the 8th ammendment scrutinizes the government actions (which is exactly what I mean when I say the RIAA is not to blame here, because the RIAA is not the one "supposedly" violating the constitution). Blame the government, blame the law, don't blame the RIAA for following the laws that are in place.

Except that it was the RIAA and its lobbyists that got the law on the books in the first place, so I can blame the RIAA.

If you don't like it, challenge it to the Supreme Court (and good luck with the "cruel and unusual" bit, or even the "excessive fines" bit, because $199 on top of the cost of something is hardly excessive.

No, it's $750+, the $200 was the "nice-guy" discount. That is 750 times actual damages. The Supreme Court has previously stated that punitive damages in excess of 4 times actual damages was unconstitutional and has stated in dicta that anything over 10 times is pretty much automatically unconstitutional

Here, you have the RIAA getting legislation that permits punitive damages in excess of 750 times actual damages. And you're going to tell me that the RIAA is innocent in this travesty? I think not.

Re:This at least has a basis

[Darundal]

Yeah, but the $750+ penalty was mandated because the damages from the distribution were too hard to calculate (the idea there being that they are holding person A responsible for the downloading of B and C, plus whoever downloads from them, and so on, and so on). The fine is based on the idea that if you downloaded, you probably distributed too.

Re:This at least has a basis

[stewbacca]

Look, you have a very overt bias against the RIAA (nothing wrong with that, btw), so your points are pretty much moot. IF (big if) 10x punitive damages are deemed so unconstitutional, then tell me, why hasn't this been ruled as such yet? That's the problem with you guys with agendas...you want to post stuff all day in your idealistic vision, when there's a completely different reality going on around you. And that's nice that you are able to twist words around and such, but the 8th amendment still only applies to criminal cases. http://caselaw.lp.findlaw.com/data/constitution/amendment08/

A precursory search of the Internet does not return a single civil case in which the 8th amendent was invoked. Following links to the case you provided (Austin vs. US) shows that you are just talking in circles, as there isn't a single mention of any sort of punitive or monetary judgment involved. It doesn't matter that the RIAA has lobbyists...it isn't illegal, or unconstitutional to have lobbyists. Seriously, I'm so tired of slashdotters blindly applying their own opinions and backing them up with "evidence" as they see fit. This is not unconstitutional until a court deems it as such. Given most normal people in the world would see nothing cruel about $199 fine (or even $749 fine) for a criminal offense, you are preaching to the slashdot choir (which is a very small choir in the big picture of life).

Re:This at least has a basis

[Anonymous Coward]

If I steal something from a grocery store (say a stick of gum) I wouldn't expect to be let of for less than THOUSANDS of dollars.

If you steal a package of gum from the store and they want to charge you with 24 counts of shoplifting for each piece of gum (ie hundreds of thousands of dollars), you don't think you could argue cruel and unusual punishment? Especially after some random guy in the store was offering free packs of gum and didn't tell you it was stolen off the shelf, and everybody else in the store was taking them too?

Of course, that's ignoring what you have already pointed out -- that this isn't a criminal case. If you want the government to punish someone that severely, you prove it beyond a reasonable doubt.

Re:This at least has a basis

[hedwards]

Punitive damages would generally be limited to ~10 per track. The statutory damages are awarded because the RIAA wants to turn a profit.

Around here under state law they'd be limited to whatever they could prove to the jury plus whatever the judge wanted to tack on. Most likely it would end up being somewhat less than 20 per track, and probably more like ~11 per track max.

Federal law is sort of different in the sense that there's absolutely no way in hell that the RIAA would get even $200 per track if they were restricted to suing under WA state law instead.

Re:This at least has a basis

[decoy256]

Well, that may be what their reasoning is, but that is stupid... That's like saying, "Because you bought marijuana, you've probably sold it also, so we are going to charge for distribution of illegal drugs."

In America we only hold people accountable for things they have actually done... not things we THINK they've done (actions of the current administration notwithstanding). There is a little things called "proof" required in courts of law.

Re:This at least has a basis

[jammer170]

That's an interesting statement, considering retail stores adjust the prices of everything to cover the cost of security.

Re:This at least has a basis

[decoy256]

You know what I hate about slashdotters? This:

but the 8th amendment still only applies to criminal cases. http://caselaw.lp.findlaw.com/data/constitution/amendment08/ [findlaw.com]

You make a statement, then as "proof" of your statement you provide a link to some ostensibly authoritative site, and consider your point proven.

You've admitted that your Google search was only "precursory" and then claim that the 8th amendment simply does not apply to civil cases, when I have already given you the actual case citation of a case in which its applicability in civil cases is explicitly stated.

I have no "agenda" and I have not given you "evidence", I have given you evidence (no quotes necessary). I have given case citation and you have given nothing but your opinion.

Following links to the case you provided...

That case was provided for support to my claim that the 8th amendment does apply to civil cases (following my own "precursory" Google search, so obviously your search was woefully lacking.). But my argument against the Constitutionality of these punitive damages does not rely solely on the 8th amendment argument, as there is plenty of case law on the application of punitive damages (read the post by Trepidity).

Now, the question you SHOULD be asking is if the case law is so well established on this issues, how did the RIAA get away with it? And, as I have stated previously, they got a sweatheart deal by buying off politicians. This has nothing to do with "agenda", it has to do with knowing what the limits of government are and holding our government to those limits.

As a defense attorney myself, I continually have to force government to support every assertion it makes and it drives me nuts when people like you blithely roll over to presumed authority. That kind of attitude is worse than useless, it is dangerous.

Re:This at least has a basis

[Splab]

I'm not an American, so things are obviously different on your side of the pond, but the way it works in Denmark with shoplifting is you get hit with a fine twice the amount you stole, but at least 300DKR ($60), and you get a nasty mark in your records for the next 5 years.

Oh and you don't even go to jail, police pick you up, handles the issue and let you go again.

Re:This at least has a basis

[stewbacca]

how did the RIAA get away with it?

Which is ultimately why I'm right and you are just talking in circles. They didn't get away with anything. If anything they did were unconstitutional, or if the 8th amendment were even remotely in play, then something would have been done about it by now. But instead, you (and the slashdot mentality of everything-should-be-free) come along, apply some erroneous constitutional argument and then spend the rest of the week trying to justify why this is such a travesty of justice. Even if I bought your argument that the 8th amendment somehow applies (laughable, but I'll entertain the notion for a moment), then tell me (better yet show me) how this case is "cruel and unusual". It isn't even excessive punitive damages, as I can point to a myriad of punitive damages that far outpace $749 per violation, starting with simple shoplifting, running through driving over 100mph on a US highway all the way to fraud cases.

Re:This at least has a basis

[stewbacca]

No, I don't think being charged $749 for a $1 product is cruel and unusual. Nor does any court it seems. I agree that 1 pack of gum shouldn't be 24 charges, and I find that an interesting defense against P2P. I'd like to see the legal arguments for that. One P2P "session" of 32 downloads is one charge, but 32 sessions of 1 download would be 32 charges? But, looking at your post, it is obvious that you have problems with the charges in the first place and don't even think there is a guilty party here. "Everybody else was doing it" is about the most lame excuse you can give in a court case.

I'm not saying that $750 per song is remotely fair. I am saying that "excessive fines" from the 8th amendment doesn't apply, because something can be unfair, yet not excessive. It's mostly unfair because the RIAA doesn't need the money, and a smaller fine would have the same effect against the offender...BUT...this should be handled by a judge to say $100 per song is a fair punishment. If the judge says $750 is a fair punishment, then sucks to be the guy who got busted, because the judge is applying the maximum penalty allowed by law (and for the last time, the maximum penalty in this case hasn't been deemed unconstitutional evidently). Your only chance would be to appeal and hope some other court sees $749 markups as being excessive punitive damages, which I don't see happening any time soon (since most people don't see that as cruel, or excessive...unfair, probably, but that doesn't pass constitutional muster).

Re:This at least has a basis

[decoy256]

You don't listen very well. I never said everything should be free, in fact I said the exact opposite. I agree that there should be a punishment affixed to every crime, but that the punishment should fit the crime. Here, we are talking about the civil penalties for crime and as I have stated the Supreme Court has already said that any punitive damages over 10 times is automatically unconstitutional. So, don't argue with me about that, argue with the Supreme Court.

I also want to clear something else up. Perhaps you don't understand this, since you are not a lawyer, but there is a difference between compensatory damages and punitive damages. A defendant must pay compensatory damages equaling the value of the items sold, court costs and attorney's fees, and any other direct and consequential damages the plaintiff has suffered. AFTER THAT, the court can award punitive damages ON TOP OF the compensatory damages. So, the $750 here is over and above and compensatory damages and is PURELY for punishing the act to deter future theft.

Every state has their punitive damages laws. In Connecticut, the law reads:

Section 52-564 Theft. Treble (triple) damages if defendant stole property of another or knowingly received and concealed stolen property. (Mandatory.)

Section 52-564a Shoplifting. Punitive damages in amount not to exceed $300.

In California the court may award the injured party the cost of the item stolen plus punitive damages "not less than one hundred dollars nor more than two hundred dollars."

In no case can shoplifting result in punitive fines in the range of the several thousands of dollars that allowed for the RIAA to collect.

Pretty much every state is about the same, putting a CAP on punitive damages and leaving it up to the court to use its judgment. But the RIAA has a special piece of legislation that allows them to collect their actual damages and then collect an EXTRA $750 per song. One CD's worth of songs can easily end up costing $7,500 just in punitive damages, something that wouldn't be permitted in any state if the person simply shoplifted the CD off the rack.

Do you now see the disturbing disparity between the laws that every other business in America is forced to abide by and what the RIAA is getting? Again, my problem is not that the RIAA is getting punitive damages, my problem is that they are getting so much more in punitive damages than is allowed by any state and far more than the Supreme Court has said is Constitutional.

Re:This at least has a basis

[stewbacca]

I wasn't responding solely to your response. You have actually brought up a whole slew of other points that I agree with. However, (your thoughtful responses removed) this is still simply wishful thinking on the behalf of the slashdot crowd to get something for nothing with impunity. As for a "disturbing disparity", I don't see anything wrong with it, on a legal basis. Sure, it's pretty dispicable behavior, but there's nothing illegal about it, and this is so far removed from a constitutional issue, it's not even funny. Think for one second. If this were such a travesty of justice and trouncing the constitution, why hasn't anything been done about it, especially given your contention that the Supreme Court has already ruled on this several times in other cases. That tells me one thing...this case is not applicable to the cases you cited, or it would already have been struck down on constiutional precedent.

Re:This at least has a basis

[zifn4b]

Do you understand anything about how the United States government actually works? In case you forgot, we have three branches of government, Executive, Legislative and Judicial. A law can be passed in the US government whether it is good or bad. It's up the the Judicial branch of the government to interpret those laws and ultimately decide whether they are fair and just. Among other things the judicial branch has the power to:

• Determines which laws apply to any given case
• Determines whether a law is unconstitutional
• Has sole power to interpret the law and to apply it to particular disputes
• May nullify laws that conflict with a more important law or constitution

This is where I think your argument of "there's nothing illegal about it" makes it OK falls apart. You are not in any position to declare whether something is illegal or what laws apply where, that's the Supreme Court's job. The GP has supplied numerous examples of how these laws have actually been interpreted and all you can come up with is your own opinion which means nothing.

I hate to say this but if you truly agree that the punitive damages being awarded to the RIAA are fair even when presented with documented case law that demonstrates interpretations to the contrary, then your attitude is really no better than the people who download copyrighted material from the internet. You are essentially subscribing to the same basic philosophy, "Get away with whatever you can, whenever you can." It is that fundamental attitude that is eroding honor and integrity in the United States. Remember the old saying, "two wrongs don't make a right."

Re:This at least has a basis

[jedidiah]

...yeah. If you shoplift that same CD you end up with it costing you $2000.

So clearly something along the lines of $150K * 6 is assinine.

Re:This at least has a basis

[jedidiah]

Are you kidding?

When it's some poor old woman who has been mutilated by a doctor
or had her health trashed by shoddy construction practices, people
like you are ALL OVER restricting tort damages.

I am sure there is some precedent regarding punitive damages
as it applies to corporations that would apply here given the
sort of double standards that get applied in American law. This
notion of excessive punitive damages have undoubtedly already
been persued... just done so to the benefit to Fortune 500
companies rather than individuals.

Re:This at least has a basis

[stewbacca]

Are you kidding?

When it's some poor old woman who has been mutilated by a doctor or had her health trashed by shoddy construction practices, people like you are ALL OVER restricting tort damages.

No, I'm not, and your point has nothing to do with this conversation. I spent 7 years in Personal Injury law, so for me to be in favor of tort reform would seem a bit silly. So you are pointing out that you do not like the US system of law. That doesn't make it wrong. The RIAA hasn't done anything illegal or unconstitutional is all I'm saying, because if they had, this wouldn't be the non-story that it is.

Re:This at least has a basis

[SharpFang]

Yes, and usually the 'excess' is capped at three times the original value.

Re:This at least has a basis

[lapagecp]

What are you talking about. First of all if you steal a stick of gum you are going to be let go with a stern warning. At most you will be asked to pay for the gum. Now if you actually were to get taken to court for your offense you would get virtually no punishment on your first offense and if it cost you over 1000 dollars in a defense attorney I would be surprised. Now the point being made is that if you were steal a whole pack of gum you are not going to get a separate punishment for each stick of gum and if you were to have stolen 10 packs of gum you will not get 10 times the punishment. 750 dollars per song is gruel and unusual by any definition. I would love to hear a good argument as to how a person downloading say 10 songs deserves 7500 dollars in damages. Lets keep in mind folks that this is in most cases the same music that is literally being broadcasts into every corner of the earth for our listening pleasure for free.

Re:This at least has a basis

[stewbacca]

Some people find gruel to be delicious. But back on topic, after reading through all of this, I would agree that treating each song as a separate incident of "shoplifting" could be argued as being excessive. The point I made in the last post is what constitutes how many "shoplifting" incidents you created? Every time you download one song? Every session you download X amount of songs? Every computer or ip address you've used to download songs? It's slippery. But back to my SINGLE most over looked premise. A $749 fine for stealing something is not a constitutional issue, not only because it isn't cruel, unusual, or excessive in the minds of most people who don't hang out on slashdot, but also because "constitutionality" doesn't apply to a civil organization like the RIAA. They aren't the government.

Re:This at least has a basis

[lapagecp]

Your single premise is not being overlooked. The problem is that where by you may not see a 749 times the going rate for a product as being cruel you would be nearly alone in that view. Like you said the RIAA is not the government and they are entitled to sue for what they have lost. I and others here are arguing that they have not lost $749 dollars for a single song and that the punitive damages are cruel. The important point that I think you are overlooking is that the defendant in this case was a minor. Suing a minor for the amounts the RIAA does is very much cruel.

Sure, easy to see

[Sycraft-fu]

I mean most people think, and correctly so in most cases, that if you pay for something, that means it is legal for you to use/have it. Whatever the seller wishes to charge is their business. If you pay what they asked, then the deal is done. If they want to give you a good deal, that's up to them and there is, as they say on the playground "No take backs." If the seller realizes after the sale they sold it for less then they wanted to, too bad.

So it is easy to see how people, especially those who are up on technical news, could be fooled. I remember getting a call from my mom about buying the Adobe Creative Suite. She was searching online to see if she could get a better price, since it is very expensive. Well, she found a place that indeed had a MUCH better price. Now she's pretty clever and realized that it sounded too good. Well, sure as shit, the site was selling pirated software. However, it is easy to see how someone might be fooled. After all, I've got some smoking deals on all kinds of products in a quite legitimate manner. People might figure this is just the same thing.

So it is quite easy to see how someone might download music and perfectly well believe they were not breaking the law.

Re:Sure, easy to see

[NewYorkCountryLawyer]

I mean most people think, and correctly so in most cases, that if you pay for something, that means it is legal for you to use/have it.

That is so true. I remember a 'cable descrambler' case that occurred about 10 years ago. A guy bought this thing in a big chain electronics store; it was the featured item on display in the front of the store; it cost a small fortune, about 2 or 3 times what a VCR cost at the time; he assumed there was some kind of license fee built into it.

Apparently, there wasn't.

Re:Sure, easy to see

[Belial6]

Sure, 'legitimate' businesses are constantly telling people that not only can they get things for very cheap, but that they can get things for "Free". How many offers have you received for a product that said it was "Free". Sure, there is always a catch that leads you to pay money. For example "buy one, get one FREE!". But, the companies that offer things like this, know that most people don't understand money well enough to understand that the object isn't really free. So, if you can get a "Free" cell phone, and "Free" groceries, and "Free" HBO, why wouldn't people think that they can get "Free" music.

In fact, companies like Coke, Pepsi, and AOL have spent millions advertising that you can get "Free" music, and it is not uncommon for bands to actually host tracks online that really are free (not just called free). It is perfectly reasonable for people to think that downloading music is legal.

Re:Sure, easy to see

[John_Sauter]

I mean most people think, and correctly so in most cases, that if you pay for something, that means it is legal for you to use/have it.

...

So it is quite easy to see how someone might download music and perfectly well believe they were not breaking the law.

Even when you don't pay for something, there are many situations in our society where it is legal. I don't have to pay to watch the sun set from my porch, or to listen to a song on the radio. Maybe the defendant thought KaZaa was the Internet equivalent of radio.

Re:Sure, easy to see

[syousef]

I mean most people think, and correctly so in most cases, that if you pay for something, that means it is legal for you to use/have it

Huh? You can buy a steak knife or a chain saw. They have legal and legitimate uses. However if I use to tool to commit murder I shouldn't be surprised when I'm arrested and if I tried to defend myself on the basis that "I bought it legally so anything I do with it should be legal" I'd be seeing a shrink.

Download software is just another tool.

Re:Sure, easy to see

[syousef]

I know who you are, have respect for you, and realize that I'm out of my depth arguing legalities with you, but I have to ask, how do you consider download software (or a cable descrambler) different to any other tool? I can buy a steak knife and legally use it to cut up my meat but if I use it to kill someone I can hardly argue that I thought I had the right to do so because I bought it legally.

The descrambler may be a special case - it has only one use. However download software certainly can be used to download a wide variety of things from a wide variety of sources.

Re:Sure, easy to see

[sjames]

Yes, but if you use most things for the purpose they were obviously sold to do, you're OK.

For example, you can reasonably expect not to be charged a "steak cutting fee" when you cut a steak with the steak knife you bought.

You can, in fact, buy a TV and watch various shows and movies for free (except in the UK).

You can buy a radio and listen to music for free (if you can find any). You can also record that music from the radio and nobody will take you to court for it.

Of course, most people do understand that bashing someone over the head with the steak knife, TV, or radio is against the law.

Re:Sure, easy to see

[Dhalka226]

Legally? It's tough to say. But it's rather easy to spot a number of important differences between somebody buying Kazaa and expecting that they can download things and using a knife to kill somebody.

For starters:

1. Steak knives can be used to kill people, but their primary purpose is to cut meat, and that's what they are used for the vast majority of the time. Even if we include the statistics of people who go on to kill people with those knives, chances are they used them for their intended purposes far more often. I highly doubt that's true with a program like Kazaa. P2P technologies may have many legitimate uses, but I'd bet huge gobs of money that most people use them to download things they shouldn't be downloading. Their practical usefulness outside of that is... quite limited.

2. Add to the above the public perceptions. "How did you get all that music, Little Johnny?" "I used Kazaa, grandma!" Grandma googles Kazaa and finds it's something they can pay for. It legitimizes it in their mind, as the OP pointed out. And given this scenario, it's not even clear whether Little Johnny knew what he was doing.

3. With something tangible, it's usually easy to tell what you're doing is different from something else. All obvious jokes aside, cutting a steak is a vastly different action from killing a person. Using a P2P app to download a song illegally and using it to download a song legally are the exact same actions -- they type something into the search box and click on their results.

4. In a more obscure sense, killing somebody is a criminal act--you're guilty or you're not guilty--while copyright infringement is a civil tort. Civil torts can assign liability among different parties, I believe even parties not in the suit. So it's entirely germane for a jury to decide that, say, $10,000 worth of damages are called for and that the blame for what happened is 25% on the RIAA for lack of education, 50% on the neighbor next door who told her it was perfectly fine and 25% on the person who actually did it, meaning the person who got sued actually pays out $2,500. If nothing else, in both civil and criminal cases, mitigating circumstances can almost certainly be considered when it comes down to determining the appropriate punishment. (The areas where it is not permitted, or only narrowly so, tends to be a political controversy.)

There's probably more as well, but it's 4am and I'm tired.

The point is, we can argue all day about whether or not these things should excuse them from the consequences of their actions, or even reduce the damages if they're found liable in court; or if any given case is a legitimately innocent case or just somebody masquerading as ignorant--but there's definitely a subset of people out there who fall into this camp. There is no direct correlation to your example because the only way people would believe that somebody in the US didn't know that murder was wrong or illegal is if they're clinically insane--a viable defense, but much more extreme than the claims here.

Re:Sure, easy to see

[syousef]

1. Won't comment on Kazaa specifically. I don't use it. However peer to peer is not just for downloading things illegally. I use it legitimately quite a bit.

2. There's plenty on the 'Net about the legality of downloading music. I think most people who claim they don't know it's wrong are just plain lying. I think a lot of people however don't realize or expect the law allows for such extreme penalties for what they would consider a petty circumvention of the rules (as opposed to say holding up a store or shoplifting where someone is deprived of goods and/or physically threatened).

3. You have a good point here. I don't fully agree but I can see how similar illegal vs legal download is. However I could have picked less obvious action. Say buying a car to use as a getaway car in a robbery. Driving is after all just driving. However driving to pick up some groceries is not the same as being involved in a holdup. If that's still too extreme consider street racing, or even driving too fast in a school zone vs on a highway.

4. I used the criminal act of killing as an extreme example. Copyright infringment is not just a civil tort. It's also a federal crime punishable by time in prison as the FBI warnings on videos keep reminding us. So you're just plain wrong on that count. By the way I don't live in the US so find those warnings particularly annoying. I live in Australia. Our copyright law is unfortunately much stricter but just as often left unenforced.

Re:Sure, easy to see

[syousef]

Yes, but if you use most things for the purpose they were obviously sold to do, you're OK.

So if I buy a gun and kill someone, I should be fine? Nope that logic doesn't fly.

You can buy a radio and listen to music for free (if you can find any). You can also record that music from the radio and nobody will take you to court for it.

It use to be illegal in Aus but they changed the copyright legislation last year, but I didn't pay any attention to whether or not they made it legal because it's not something I have any interest in. (It's still illegal to backup a DVD here).

Re:Sure, easy to see

[sjames]

So if I buy a gun and kill someone, I should be fine? Nope that logic doesn't fly.

Of course, because a single exception anywhere in the world would rip the entire fabric of space -time.

More seriously, a person who can't figure out that there might be an exception in the case of taking a human life would have to be too damned stupid to figure out which end of the gun to hold and which to point.

But, of course most people are intelligent enough to understand that extreme cases like taking a human life or inflicting grievous harm just might carry a few extra restrictions than listening to music would.

At the same time, most people would (correctly) presume that the right to buy a gun also implies the right to use it for target shooting at an appropriate gun range.

Re:Sure, easy to see

[SharpFang]

Actually, I wonder - you bought the item in good faith of it being legally owned by the seller. Then it appears the seller had stolen it. The Police localizes the item in your possession, but you have the proof of purchase and you can prove you had no idea it was stolen.

Is ANY punitive action against you, other than taking the item from you and giving it back to the rightful owner, allowed?

Shouldn't the person selling the illegal goods receive all the damage?

If the guys bought Kazaa, believing they buy legal access to music - can it be held against them?

Re:Sure, easy to see

[syousef]

Of course, because a single exception anywhere in the world would rip the entire fabric of space -time.

That's not the only exception. You know that despite your sarcasm.

More seriously, a person who can't figure out that there might be an exception in the case of taking a human life would have to be too damned stupid to figure out which end of the gun to hold and which to point.

That was an extreme example to make a point. Lots of tools can be misused in an illegal way. How about pliers used to do your own electrical wiring (without an electrician's license).

But, of course most people are intelligent enough to understand that extreme cases like taking a human life or inflicting grievous harm just might carry a few extra restrictions than listening to music would.

OH for pity sake, how many times are you going to make the same damn point? It's not an extreme case. It's not the only example of a tool being used for an intended purpose where that purpose can be illegal under common circumstances.

At the same time, most people would (correctly) presume that the right to buy a gun also implies the right to use it for target shooting at an appropriate gun range.

Yes, now you're talking about common standards and the reasonable man. The trouble with computers is that the common man often knows how to use them but doesn't understand exactly what he's doing. Not so with simple hand tools.

Re:Sure, easy to see

[sjames]

How about pliers used to do your own electrical wiring (without an electrician's license).

Actually, that's perfectly legal in my state so long as it's not done for hire.

That was an extreme example to make a point. Lots of tools can be misused ...

OH for pity sake, how many times are you going to make the same damn point? It's not an extreme case.

Well, is it or is it not an extreme case? Make up your mind! :-)

As for how many times, I suppose about as many times as you claim (or imply) that to the average person the illegality of downloading music is as obvious as the illegality of killing someone.

Yes, now you're talking about common standards and the reasonable man. The trouble with computers is that the common man often knows how to use them but doesn't understand exactly what he's doing. Not so with simple hand tools.

Now you're making my point, that it isn't unreasonable for the common man to believe that using the software for it's intended purpose would be legal.

Re:Sure, easy to see

[syousef]

Actually, that's perfectly legal in my state so long as it's not done for hire.

Here if you're caught you'd practically be shot.

Well, is it or is it not an extreme case? Make up your mind! :-)

You try arguing while sleep deprived (first newborn baby). If you can gather what I meant, take it at face value that I slipped. If you can't I'm too sleep deprived to care.

As for how many times, I suppose about as many times as you claim (or imply) that to the average person the illegality of downloading music is as obvious as the illegality of killing someone.

Oh give me a break. You know perfectly well that most people are aware that downloading for free isn't legit. There's been plenty of publicity about people being sued. There are disclaimers on the video, and plenty of copyright notices for anyone who's bought, bored or stolen a CD.

Now you're making my point, that it isn't unreasonable for the common man to believe that using the software for it's intended purpose would be legal.

Not what I was saying at all, and you know it.

Re:Sure, easy to see

[sjames]

There's been plenty of publicity about people being sued.

There has on /. and other tech sites. I have NEVER seen a story about it on the evening news. And certainly not in 2004 and earlier (the dates of the alleged infringements in many of the cases winding through the courts). That is, the publicity is about the people who are now in court. When they used p2p (if they did at all), there were no such suits to publicize.

A number of these cases have involved parents who barely know how to use a computer (if at all) being sued for their children (who are barely aware of the law beyond the simple and blatantly obvious) sharing music.

The same parents probably made cassette tapes for their friends when they were their kids age and nobody ever complained.

Re:Sure, easy to see

[syousef]

Most people who made mix tapes or taped songs off the radio knew that was illegal too, but it was so loosely enforced and considered such a petty thing that that they just did it anyway. Who's going to dob them in anyway? The person they had a crush on that they made the tape for?

You rabbit on about the evening news etc. but have conveniently ignored my point about FBI warnings on video etc. I don't think it's even possible to grow up in a developed country without having seen one of those since you can't skip the bastard things. For that matter how many people can buy or download music without being confronted by copyright warnings? They're even teaching these things in the schools now. You assume the general public who doesn't have an interest in computing is stupid. They're not stupid. Just disinterested. Walk into a typical home and ask them if downloading music for free is legal. Most people know it's not, and will probably admit to it if they aren't worried about being prosecuted.

You know what. I've done this too many times to continue to argue with you. Some people who post here are opinionated and have hours to argue over nonsense like a broken record. If you wish to continue to insist that people don't copying music is illegal, go ahead. It doesn't make what you say any more true.

Re:Sure, easy to see

[sjames]

You rabbit on about the evening news etc. but have conveniently ignored my point about FBI warnings on video etc.

I thought we already covered that a zillion posts ago! The whole thread started with the thought that people who have bought P2P software and even paid for accounts would presume the licensing was covered, so the FBI warning wouldn't apply. You send money to iTunes and it's legal to download music there. You pay for an account with Kazaa and it's legal to download music there...(oops)

You assume the general public who doesn't have an interest in computing is stupid.

No, I assume they know less about computers and the legal issues swirling around them. Much like I know less than Tiger Woods about golf.

You know what. I've done this too many times to continue to argue with you. Some people who post here are opinionated and have hours to argue over nonsense like a broken record. If you wish to continue to insist that people don't copying music is illegal, go ahead. It doesn't make what you say any more true.

We probably have reached an impasse in the discussion, but it's not worth bursting an aneurysm over! I hereby agree to disagree.

Re:Sure, easy to see

[syousef]

I thought we already covered that a zillion posts ago! The whole thread started with the thought that people who have bought P2P software and even paid for accounts would presume the licensing was covered, so the FBI warning wouldn't apply. You send money to iTunes and it's legal to download music there. You pay for an account with Kazaa and it's legal to download music there...(oops)

We did and you missed the point (on purpose) that any tool or service you procure can probably be used illegally if you don't know what you're doing. Everything from a simple knife (carried past airport security to cut steak) to a car (driven on the wrong side of the road or without a license) to alcohol (consumed in a public place where it is prohibited). Just because I pay for something, doesn't mean I can blindly use it while ignoring the law.

No, I assume they know less about computers and the legal issues swirling around them. Much like I know less than Tiger Woods about golf.

I'd expect you to know something about golf if you owned a set of clubs, or at least be in the process of learning if you're actively using them.

We probably have reached an impasse in the discussion, but it's not worth bursting an aneurysm over! I hereby agree to disagree.

Probably best.

$200 per song! My the inflation...

[Anonymous Coward]

It seems inflation has taken a huge toll in media prices in USA. You can buy a whole cd here for $10, usually with 20-40 songs. That means you pay around 50 cents per song. If the song price is $200 in USA, I don't wonder you guys prefer to pirate, with CD prices probably being around $4000 USD.

Re:Everything you don't like is Offtopic or Troll

[Anonymous Coward]

They must believe we're trolling at a 12th grade level to already have had four of them waste mod points on us. I'm not sure these boobs understand what real trolling is.

well now....

[way2trivial]

200 times might be pretty severe, but $200 as a minimum amount is not.

Let's put it this way.
for one song- what do you expect would be the minimum legal costs to the RIAA to track you down?
a lawyer, writing a subpeona, filing it, and contacting the ISP, and contacting the individual.

that would be a reasonable minimum per user who is downloading songs.

this has nothing to do with RIAA tactics vs. B&M stores-- it's about allowing a reasonable recovery of costs..

so lets say- 1500 -2500 (we are talking about a national search, not limited to the interior of one store) for cost recovery- not per song-- but per person/IP tracked down.
Remember- they are using lawyers, not LP (loss prevention) security guard types--

then we tack on damages as well.

what do you estimate the RIAA's damages for one song to be?

at some point, you have to acknowledge that breaking the law has consequences, and people who own property are entitled to recovery of costs in protecting their property.

I haven't had a run in with the **AA's I have had experience with youthful offender civil crimes.. personal experience and knowledge of the experience of others.

and a little shoplifting can easily cost a few grand.....

Re:well now....

[decoy256]

No, sir, it is $200 PER SONG and that's if you get the "innocent infringement" defense. Otherwise it will be $750 PER SONG. In addition, the RIAA does not go after someone for downloading 1 song... they go after someone who has downloaded probably thousands of songs. The total fines can easily reach $1 million or more. That is unconscionable in my book.

Re:well now....

[Anonymous Coward]

[quote]this has nothing to do with RIAA tactics vs. B&M stores-- it's about allowing a reasonable recovery of costs..[/quote]That's preposterous. "Costs" had better have some reasonable relationship to "damages" if you want to claim anything like this. If someone causes $5 in damages to me and subsequently moves to another state and changes their name, I can't hire a private investigator full time for three years to track them down and then expect them to pay those costs when caught, even if that's the only possible way for me to catch them. Recovery of costs can't reasonably be that out of proportion to the actual damages suffered or we open the door to wanton abuse and greater harm to society than the initial infraction.

Re:well now....

[mdwh2]

That issue can be handled by requiring them to pay towards legal costs.

you have to acknowledge that breaking the law has consequences, and people who own property are entitled to recovery of costs in protecting their property. ...

and a little shoplifting can easily cost a few grand.....

Copyright infringement is a civil issue, not a criminal one. We're not talking about property or shoplifting. I'm not saying that makes it right, but let's keep focused on the matter we're actually dealing with.

Go away, you're not 21

[tepples]

If you want to support the artist, go to their concerts

Unless your favorite artist won't play at any all-ages venues near you.

Re:Go away, you're not 21

[Sebilrazen]

Unless your favorite artist won't play at any all-ages venues near you.

Simple solution to that problem, grow up.

I was going to have some terrible meandering reply about trying to pick up girls/guys their own age, but this is /.

Re:Go away, you're not 21

[Broken Toys]

You can't figure out how to get into a rock concert if you're slightly underaged?

Kids today have no imagination whatsoever.

Re:Go away, you're not 21

[syntek]

I never had a problem seeing a bad before 18. Only reason I can think of you not getting in would be if the venue is a bar, and even then, some places will let you in, but give you a braclet to signify your age. Now of course at 23, I don't worry, but it was never an issue prior to.

Re:Go away, you're not 21

[sm62704]

If you want to support the artist, go to their concerts

Unless your favorite artist won't play at any all-ages venues near you.

If they won't support your needs, why should you support theirs? If a band refused to let anyone over 50 into a concert I'd be damned if I ever bough one of their CDs, no matter how much I liked the music.

Re:Everything you don't like is Offtopic or Troll

[Anonymous Coward]

I think they understand just fine. They're just cowards who feel brave now that they finally have a way to affect another person with impunity, albeit in an entirely negligible way. It's funny really. The person who mods this down will read it and know that it's true, but they'll still mod it down anyway. Probably _because_ they know it's true and are upset with me for pointing out just how pathetic they must be to perpetrate such a waste of perfectly good mod points. Besides, 12th grade is probably well beyond the literacy level of anyone who would bother modding down this entire thread.

No "so surely" in law

[Anonymous Coward]

Read here.

Re:Everything you don't like is Offtopic or Troll

[Anonymous Coward]

The only thing missing from this thread...

...is the NECROTIC DOG PENIS!!!111



nurrrrrrrrrrrrrrrrrrrrr

RIAA foiled? Hardly!

[syousef]

The difference between $200/song and $750/song goes something like this.

RIAA: She knew what she was doing.
Ms Harper: No I didn't. I was 16 and everyone was doing it.
Judge: Okay, I'll accept that. You'll have to take her house, her parent's house and her car as damages, but she can keep the shirt on her back.
RIAA: But your honour, it's a lovely purple coloured silk shirt, and she really did know what she was doing.
Judge: No. She can keep her shirt. Let that be a lesson to you RIAA.

Re:RIAA foiled? Hardly!

[Anonymous Coward]

I wanted to mod this up, but the RIAA took my points after I downloaded Garrison Keillor's Songs of Cats.

Notice of Copyright 1989

[Nymz]

The thing with copyright is that it's only a "infringement" if the item is indeed under copyright and it's labelled as such.

The 'Notice of Copyright' requirement was eliminated in 1989. (sarcasm on) I guess you weren't ignorant of this fact, but simply innocent of it. (sarcasm off)

Re:Notice of Copyright 1989

[kaos07]

Then what the hell is the defence argument based on?

Re:Notice of Copyright 1989

[praksys]

Some uses of copyrighted works are illegal,unless you have permission, some uses are legal, even without permission (fair use etc). Ignorance about which uses are legal is ignorance about the law, and ignorance of the law is not an acceptable defense.

Some songs are copyrighted, some are not. Ignorance about whether a song is copyrighted is ignorance about a matter of fact, and ignorance of fact is often an acceptable defense, or at least a mitigating circumstance.

Re:Notice of Copyright 1989

[kaos07]

That was exactly my point and the guy who replied apparently shot that down...

Re:Notice of Copyright 1989

[Darundal]

And rightfully so, I might add. For anyone who is wondering why, just google Night of the Living Dead.

Re:Notice of Copyright 1989

[cpt kangarooski]

No, I disagree. I'm aware of what happened with Night of the Living Dead, and Charade, and several other works. But the notice requirement is important, and does need to be revived.

in this case,

[way2trivial]

apparently they went after someone sharing 39 songs
http://yro.slashdot.org/comments.pl?sid=641131&cid=24539829

I don't disagree that 1 million is reasonable against an individual
  -- but I ask you/others to consider

What is reasonable?

there are two prongs to the penalty.
1- to recover costs of protecting intellectual property, make whole the damaged party.

2- to punish those who broke the law-- as a deterrent to others.

I have downloaded in the past large #'s of songs.. I don't do it anymore-- not because music is crap, not because I'm afraid of the RIAA
but I've realized, it's just wrong....

lol

[dodgedodge]

only you could call $750 to $200 per song "foiled". nothing like spinning.

Re:lol

[NewYorkCountryLawyer]

Slashdot gives me very little space in which to put the headline. How would you have put it in the same amount of space?

By the way, I think the RIAA feels 'foiled'... the last thing they want to do is now start preparing for a trial, in San Antonio, Texas, of the issue of whether this sweet young lady was a deliberate copyright infringer. (1) It will cost the plaintiffs at least $50,000, maybe even more, the way their lawyers bill. (2) They will lose. (3) They will look like total idiots.

Re:lol

[NewYorkCountryLawyer]

Oh, and the next to last thing they want to do is accept $200 per song file, and in so doing be deemed to have acquiesced in a reduction of their nationwide $750 per song file theory, which has informed every one of their 40,000 or so cases. So I guess you could say they're between a rock and a hard place.

Re:lol

[Khaed]

I'd say $550 difference per song is "foiled." Yeah, $200 is still outrageous. But it's less than a third of what they wanted.

Re:lol

[Splab]

Spider pig, spider pig, does whatever a spider pig does...

The trick when being between a rock and a hard place is to avoid the ball when you finally drop. /Obscure? I hope not.

The Big Picture

[Nymz]

Answering your question requires understanding of 'The Small Picture', which can only be understood in relation to 'The Big Picture'.

The Big Picture:
The idea of copyright is a societal agreement with creators, as a fair method to pay them for contributing to society. Over time, our environment has changed, and the old copyright paradigm is an ill fit for today, and so great is the ill-fitting-ness that a large section of society chooses to ignore it to some extent. Until such a day that we as a society create a new copyright paradigm, that most of us will agree to honor, then we will have lots of legal battles.

The Small Picture:
In a legal battle, the simple footsoldier known as a lawyer is not necessarily motivated to make the world a better place, but is motivated to defend his client, be they innocent or guilty. With success defined in such a way, a lawyer may sacrifice less valued big ideals, in order to achieve higher valued small wins.

Your Answer:
A lawyer may take laws and legal rules to their extremes, like a competitive athlete may take their training to extremes, but at those extremes are gray areas. Gray areas like the difference between supplements and steroids, or plausible deniability like claiming the guy injecting you said "it was just an all-natural supplement" so how could you have known. In this case, the "Innocent Infringement" idea is being stretched, and twisted, in hopes that it might just work well enough to help his client.

Re:The Big Picture

[kaos07]

Righto, thanks.

Moral of the story: Copyright law in the US is fucked.

Re:The Big Picture

[cpt kangarooski]

The idea of copyright is a societal agreement with creators, as a fair method to pay them for contributing to society. Over time, our environment has changed, and the old copyright paradigm is an ill fit for today, and so great is the ill-fitting-ness that a large section of society chooses to ignore it to some extent. Until such a day that we as a society create a new copyright paradigm, that most of us will agree to honor, then we will have lots of legal battles.

Well, I'd say that's nearly right. To be more precise, copyright is a means by which society gives creators a subsidy in order to cause them to create and publish works which they would not have done otherwise. This is done in order to provide a benefit to society. Of course, society also benefits greatly from those works not being restricted, so it is important for copyright to be as minimal in scope and short-lived in duration as possible As it is known from history that there will be a certain amount of creation and publication without copyright, and since the granting of copyright incurs a cost to the public, it is necessary that the public benefit of copyright outweigh the public costs, and that the resulting net public benefit is greater than what we'd have if we had no copyright at all. An ideal copyright system would be one which provided the greatest possible net public benefit.

Frankly, I think this is a great idea, and I think that many people would agree. I don't think that the trouble we're seeing lately is due to dissatisfaction with the underlying idea of copyright. Rather, I think that people are finding that the current copyright bargain is bad for the public. We appear to be granting too many rights for too long a time, and receiving too little public benefit in return. Significantly reducing the term length and scope of copyright would probably do wonders for the public, without seriously reducing the number of works created.

And certainly, it's hard to imagine another rationale for copyright that actually makes sense and doesn't irreconcilably conflict with more important things, such as free speech.

Copyright violation does not work like other theft

[Anonymous Coward]

The damages are not the same.

In normal theft the damages are easy to figure out. If I run up to the local grocer and steal a banana the loss is pretty clear. What does 1 banana cost? $10? That $10 is easy to see as the banana is gone and the possible sale is not possible.

If I stole a book from B&N. The damages to the company would be minimal. How much does a book cost nowadays? Maybe $100? Another easy loss to figure out.

But what happens when I put a representation of the book on the line? Say I take this scanner and make a PDF of the book. This time the damages go to the publisher (I think; I do not know how books actually work.) Is it so easy to figure out? How many sales are lost due to my actions?

Anywise, I hate copyright as much as anyone (20 years with a 10 year extension would be my limit--though the Berne Convention kind of prohibits that.) Copyright is for the stupid and uncreative--yet it is helpful as other assholes cannot live off of your work, but the extensions have been done solely to allow that strangely enough. But I do understand there is a difference between stealing a single record and stealing multiple licenses for a record.

indeed, punitive damages can't be

[Trepidity]

The Supreme Court has held that punitive damages can virtually never exceed a 10:1 ratio of actual damages. Whether that ruling would extend to statutory damages has never been tested, but it's possible it might. Certainly the RIAA would not want to argue that the purpose of statutory damages is to be punitive, if it wishes to avoid such an extension.

Re:indeed, punitive damages can't be

[hedwards]

Right and you generally have to prove damages in court if you're going to ask for them. Allowing statutory damages is really just abusive. If you can't demonstrate to a jury sufficiently that you've been damaged that they can come up with a reasonable number, you're not deserving of any compensation.

Re:indeed, punitive damages can't be

[Anonymous Coward]

Right and you generally have to prove damages in court if you're going to ask for them. Allowing statutory damages is really just abusive. If you can't demonstrate to a jury sufficiently that you've been damaged that they can come up with a reasonable number, you're not deserving of any compensation.

That would be bad news for GPL, because there are no actual damages when someone violates it and statutory damages is the only way to enforce the license.

the Supreme Court has ruled a number of times

[Trepidity]

There is a significant body of Supreme Court jurisprudence invoking the Due Process Clause to limit punitive damage awards in civil cases. The most recent significant decision was 2003's State Farm v. Campbell, which gave a strong presumption to the unconstitutionality of multipliers greater than single digits, and summarized some of the past decisions. To quote from the majority opinion in that case:

"We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. In Haslip, in upholding a punitive damages award, we concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. We cited that 4-to-1 ratio again in Gore. The Court further referenced a long legislative history, dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish. While these ratios are not binding, they are instructive. They demonstrate what should be obvious: Single-digit multipliers are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution, than awards with ratios in range of 500 to 1, or, in this case, of 145 to 1."

Bands don't exist forever

[tepples]

Simple solution to that problem, grow up.

Bands tend to break up or have their lead singer die during the time it takes for that to happen.

Re:Bands don't exist forever

[ppanon]

Heh! Back when I was underage, it was the drummers and not the lead singers that had a tendency to die early.

Re:Bands don't exist forever

[digitrev]

Yeah, but does anyone even notice when the drummer dies? On stage, even.

Re:Bands don't exist forever

[xouumalperxe]

Well, at least this once

DRATS!!

[tyrione]

Foiled Again!

Confusion is understandable

[Bones3D_mac]

When the music industry decided not to embrace online distribution of their content right away, they inadvertently left the door open for people to become convinced that the ability to download music for free was simply another function of the internet as common as browsing the web. Unfortunately, this has led to a generation of internet users were such activity is seen as nothing unusual enough to question whether or not it's even legal.

To these people, the concept of paying to download music isn't much different from how many of us view subscription-based websites as a waste compared to the abundance of other websites containing the same exact information for free.

To further complicate matters, many who download music through file sharing on a regular basis often become confused when told that obtaining music in this manner isn't necessarily legal, as it conflicts with their personal experience and the fact that the "illegal" files are still regularly available on these services. They regard this fact as proof their not in violation of any laws because no one has forced these files to be removed or forced the service to shut down... while completely unaware of the dynamic nature of these services that prevents any actual enforcement due to the lack of a centralized server in a tangible location.

To them, it's exactly like any other internet service, connecting to a specific machine somewhere else.

The real question these **AA groups need to ask is how to educate these people about the issues involved and allow them a chance to change their activities rather than immediately pulling them into life-destroying lawsuits.

Re:Confusion is understandable

[Anonymous Coward]

Or individuals should use bit torrent based programs with 3DES encryption and only accept connections from other encrypted clients.

I don't believe I've seen a single lawsuit attacking bit torrent program users.

Re:Confusion is understandable

[mikael]

People who grew up with VCR's, Sony walkmans, FM radio's with dual cassette tape recorders, just see downloading from the web as the same as using the VCR to record their favorite music video, or the radio to record their favorite track. The obvious difference is that creating a mix tape requires a blank tape (paying a less revenues royalty tax), recording from TV had the TV station paying distribution rights or advertising fees, while transferring a copy from another PC results in no fees being paid whatsoever.

8th amendment

[Merlin843]

http://caselaw.lp.findlaw.com/data/constitution/amendment08/09.html#1 The Eighth Amendment deals only with criminal punishment, and has no application to civil processes.

Granny is even more confused than you

[Anonymous Coward]

Ignoring your murder strawman, I find it strange that you start your post admitting that you yourself shouldn't be arguing about IP law with NYCL, and continue to assume that laymen much less concerned with this subject would be able to discern whether they are in violation in many cases, your example being the use of P2P software.

If you would download a book by a US author published in the US between the years 1923-1951, I daresay that even you wouldn't know if you were in violation or not. I know that I wouldn't (and expecting me to pay $150/hr to find out is not reasonable in my eyes).

Re:Granny is even more confused than you

[syousef]

Hey troll, there's a difference between arguing and posing a question. You'll notice the new york lawyer actually responded and in a useful way. Stop getting your friends to mod you insightful. It's pathetic.

Re:Granny is even more confused than you

[Anonymous Coward]

... new york lawyer actually responded ...

No, I rather doubt that "Dhalka226" is a sockpuppet of NYCL, or that he even has any Slashdot sockpuppets.

Your question was posed in a very flamebait way, for two reasons:

1) You chose, by your own admission, to make an analogy to a fantastically exaggerated crime of murder, while NYCL was discussing copyright infringement.

2) You assumed that NYCL was claiming that using a legal tool erases illegality of any acts with it, which he was not. The discussion was about whether an incorrect impression of legality on the part of the infringer could enable the infringer to claim that the plaintiffs only deserve smaller damages, not that he was innocent of infringement.

Stop getting your friends to mod you insightful. It's pathetic.

It was modded insightful because it was insightful, unlike your reaction to it.

BTW, the only reason I posted it twice was because you repeated that pathetic murder analogy twice.

Nice murder strawman

[Anonymous Coward]

Nice murder strawman! Do you always compare IP law violations to physical assault (or, as many do here, in not quite as blatant a strawman, the theft of physical goods)?

If you would use your software to download a book by a US author published in the US between the years 1923-1951, I daresay that even you wouldn't know if you were in violation or not. I know that I wouldn't (and expecting me to pay $150/hr to find out is not reasonable in my eyes). Your average grandmother paying to download MP3 files from the allofmp3.com site, which claimed to have a valid license (which almost certainly was only valid for Russians), is unlikely to understand that she is violating her local IP laws.

Re:Nice murder strawman

[syousef]

Nice murder strawman! Do you always compare IP law violations to physical assault

Nice misuse of the term strawman. The point was that you can't argue a tool that you legitimately bought and then used illegally makes absolves you of the illegality of your action. You're either too obtuse to understand that point or you're a troll.

Re:Nice murder strawman

[Anonymous Coward]

Nice misuse of the term strawman.

The article in Wikipedia would seem to refute you. It says it's "to describe a position that superficially resembles an opponent's actual view but is easier to refute". I think talking about murder when copyright infringement is the actual subject would fit that description.

It seems to me that in many cases, the inability to understand the consequences or illegality of one's actions would obsolve one of guilt (in some sense) without making the illegal act "legal" --- like the plea of temporary insanity.

On keeping the judge informed

[Anonymous Coward]

I'm sure her counsel will tell the judge about it, if it comes up.

You misunderstood the parent's suggestion.

Why doesn't someone tell the judge about it without the point coming up in court? Surely keeping the judge in ignorance of the facts on a procedural technicality is not valid in any court of law, even in the US?

Re:On keeping the judge informed

[Phist]

Surely keeping the judge in ignorance of the facts on a procedural technicality is not valid in any court of law, even in the US?

The US has two types of courts: civil courts and criminal courts. Although keeping the criminal court judge ignorant of any facts is not encouraged (but happens), keeping a civil court judge ignorant of the facts is greatly encouraged. Why? The answer has to do with how criminal court deals with freedom and money while civil court deals only with money.

Re:On keeping the judge informed

[Dhalka226]

This simply isn't true. It is a lawyer's legal responsibility to inform the court of any decisions or other litigation that might influence or direct their own decisions -- ie, related litigation, direct precedent from a higher court or even non-binding "precedent" from lateral courts or higher courts outside their jurisdiction. In other words, everything. Lawyers can be sanctioned or disbarred for failing to do so, regardless of if the court is civil or criminal.

The problem is it's almost impossible to prove whether or not somebody knows something if they're trying to hide the fact that they do, and even if you could somehow prove it you'd need to show whether or not they hid the information deliberately or it was simply an oversight. We all forget things we should know from time to time, after all. This makes it essentially free to get away with, but it doesn't at all mean it is encouraged.

Re:On keeping the judge informed

[Phist]

If the RIAA takes the money and runs it's because RIAA lawyers don't want the case to go to trial (where the facts are examined). After all, it was a summary judgment. I hope it goes to trial but I doubt it will.

It cost me $6,000USD to find out that lawyers do not necessarily follow the rules. What? You think just because it's a "rule" means that it always happens? Maybe with laws of nature (two solids can not exist in same place at same time) it's true; but believe me, human made rules are specifically designed to be broken - they get broken by accident and on purpose regularly.

Statutory damages and penalties are government

[Anonymous Coward]

And another poster above has shown that this (opinion piece) link is not substantiated by the COURTS THEMSELVES.

A civil case would be "Here are my proofs for damages" and the court/jury going "I don't believe you, you get nothing" or "Fair enough. pay the man".

Statutory damages are the government getting their oar in and saying "they don't have to prove nothing". And if the government assess an unconstitutional level of damages they are breaking the 8th.

Take the case of Fort Wayne, Indiana

[tepples]

I never had a problem seeing a bad before 18. Only reason I can think of you not getting in would be if the venue is a bar

Take the case of Fort Wayne, Indiana. Any major act that doesn't play at the arena (all ages) plays at the city's biggest bar (21+ only).

and even then, some places will let you in, but give you a braclet to signify your age

Bars in Fort Wayne do not give bracelets; they just remove minors from the building.

Re:Take the case of Fort Wayne, Indiana

[Anonymous Coward]

I think you're missing his point.

What if you stole the money to buy the songs?

[pbhj]

What if you stole the money to buy the songs? What would the penalty be then?

I'm guessing you'd be cautioned, told to give the money back and give a suspended sentence. Although in the UK this would all be commuted to telling them they've been naughty and if they do it again they'll have an ASBO to brag to their friends about.

A Very Real Problem

[brundlefly]

On today's internet we suffer from a very real problem. It's very tough to know what's copyrighted and what's not until it's too late.

For example, I'm constantly downloading movies. Some of them are very good. I'll watch them the whole way through, looking for signs of copyright. And its never until the very end of the movie that they display their copyright! I have to watch the entire movie before I know that it's not a legal copy.

So of course, the first thing I do is delete the movie file. But by then it's too late -- I've already broken the law unknowingly. (And then I binge-eat a bunch of cookies to help me assuage my guilt. What's a guy to do?)

It's a cold, dirty trick to hide the copyright warning at the end of the film. Honest, decent folks like me inevitably get sucker-punched at the end of the film when we see that nasty little (c)!

Re:A Very Real Problem

[sm62704]

You make a very good point; in a book the copyright notice is on the very first page. US copyright law now says that every work is copyrighted as soon as it is affixed in tangible form, but the question is whether or not the copyright holder WANTS it distributed. Star Wars: In The Pirkinning is free to download. Braveheart is not. One would assume that The Passion of the Christ would be free to download; but the assumption would be a risky one.

With music, most of it is independant and the copyright holders WANT it shared. But it can still be a risky proposition. You can assume that if you hear it on the radio it can't be shared, but you can't assume that it can just because it's not on the radio.

uh-huh

[way2trivial]

so read what you quoted from me
"[quote]this has nothing to do with RIAA tactics vs. B&M stores-- it's about allowing a reasonable recovery of costs..[/quote]"

REASONABLE RECOVERY.. and yes, 3 years of PI for 5$ is unreasonable.

farm subsidies are not a business model at all

[bobkoure]

Farms are a special case - I'd suggest picking a different example (there are plenty).

The issue with farms is that they are sort of like manufacturers (buy raw materials, use capital equipment and labor to convert to higher-value materials).

The problem is that they aren't manufacturers, and don't have full control of the material conversion (drought, flood, hail, poorly timed rain, etc), so they tent to cultivate as much acreage as they can "just in case". So, some years there are bumper crops (little or nothing went wrong) - and they get a lot less per bushel/weight/whatever.

The subsidies are a way to try to control this. They don't work very well, and we used to have a system that worked much better - the "normal granary", first established under FDR's administration. The notion there was that there was a "base price" that a farmer could always use his/her product as collateral for a loan. Come a bad year, he/she could reclaim his/her product for the loan cost and sell. This tended to even out prices between good/bad years and let farmers plan somewhat.

The problem was that it made our food expensive (not really expensive, just the price, say, the Europeans pay). There was a "housewives revolt" under Nixon, and he told his sec of agriculture to come up with something that would drive prices down - which is what we've now got.

It's a lot worse than the normal granary, but it's what we're currently stuck with. It was never a "business model" that's that's why you need to pick something else to use as a comparison here.

BTW If you want more about this (I've gone on too much already), google for "normal granary" or "earl butts".

200 is still sick

[Snaller]

But then that's the way they roll it seems.

With apologies to Mr. Adams

[Zwicky]

the Harper court rejected that contention, holding that 'a question remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting,' since 'In this case, there were no compact discs with warnings.'

Mr. Riaa said, "You were quite entitled to make any admissions of guilt at the appropriate time, you know."
"Appropriate time?" hooted Ms. Harper. "Appropriate time? The first I knew about it was when a lackey arrived at my home yesterday. I asked him if he'd come to clean the windows and he said no, he'd come to demolish my life. He didn't tell me straight away of course. Oh no. First he wiped a couple of windows and charged me a fiver. Then he told me."
"But Ms. Harper, the copyright label has been available on a CD in your local music store for the last several years."
"Oh yes, well, as soon as I heard I went straight round to see it, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything."
"But the label was on display..."
"On display? I eventually had to go down to the cellar to find it."
"That's the display department."
"With a flashlight."
"Ah, well, the lights had probably gone."
"So had the stairs."
"But look, you found the label, didn't you?"
"Yes," said Arthur, "yes I did. It was on display on the bottom of a CD case in a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard.'"

Re:With apologies to Mr. Adams

[Zwicky]

s/Arthur/Harper - there is always one...

Re:"I am not a pedofork, YOU DORKS!"

[Anonymous Coward]

You really believe he's being himself?

I think you folks got trolled.

You suckers will believe anything.

Just look at the way he took his glasses off: it's bad acting.

De-indexing

[Thinboy00]

$749 per violation [snip/]

The problem is that you see it as a flat fee, and we see it as a multiplier.

Punitive damages as punishment?

[hicksw]

I can see award of actual damages and costs to the injured party, but why should they receive the benefit of a punishment? Shouldn't the punitive component of the damages go to the state?

This is also a scary idea.