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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."
If that is the value, why are they taking such a loss on the sale?
"Thanks for all the money you paid to us. We've used it to buy off ISO among other things" -Microsoft
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.
.. 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.
$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.
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.
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.
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.
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.
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).
Its = possessive. It's = "it is"
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
something about not being able to do the time comes to mind...
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.
Si vis pacem, para bellum! For evil to succeed good men need only do nothing!
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.
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.
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?
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.
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.
Roads are paid for with taxes. Businesses pay taxes. So that's not a subsidy.
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.
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.