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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."
A person under 18 cannot sue or be sued, without a hell of a bunch of oppostion.
We seem to forget that.
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
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.
.. 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.
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.
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.
IANAA (not an American :->) and IANAL, so I don't know what this concept is.
I am the maverick of Slashdot
This looks like an injunction against the use of iTMS or any other online music store. Am I reading this correctly?
The real "Libtards" are the Libertarians!
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.
every day http://en.wikipedia.org/wiki/Special:Random
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.
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.
Ray Beckerman +5 Insightful
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.
MP3 Search Engine
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.
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.
It is a miracle that curiosity survives formal education. - Einstein
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, 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! :)
Down With Slashdot BETA!!! I've been around the corner and seen the oliphant; you can only abuse me from your perspecti
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.
Ray Beckerman +5 Insightful
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.....
every day http://en.wikipedia.org/wiki/Special:Random
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.
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.
Ray Beckerman +5 Insightful
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.
These posts express my own personal views, not those of my employer
"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?
A pizza of radius z and thickness a has a volume of pi z z a
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.
Ray Beckerman +5 Insightful
only you could call $750 to $200 per song "foiled". nothing like spinning.
Answering your question requires understanding of 'The Small Picture', which can only be understood in relation to 'The Big Picture'.
The Big Picture:
The idea of copyright is a societal agreement with creators, as a fair method to pay them for contributing to society. Over time, our environment has changed, and the old copyright paradigm is an ill fit for today, and so great is the ill-fitting-ness that a large section of society chooses to ignore it to some extent. Until such a day that we as a society create a new copyright paradigm, that most of us will agree to honor, then we will have lots of legal battles.
The Small Picture:
In a legal battle, the simple footsoldier known as a lawyer is not necessarily motivated to make the world a better place, but is motivated to defend his client, be they innocent or guilty. With success defined in such a way, a lawyer may sacrifice less valued big ideals, in order to achieve higher valued small wins.
Your Answer:
A lawyer may take laws and legal rules to their extremes, like a competitive athlete may take their training to extremes, but at those extremes are gray areas. Gray areas like the difference between supplements and steroids, or plausible deniability like claiming the guy injecting you said "it was just an all-natural supplement" so how could you have known. In this case, the "Innocent Infringement" idea is being stretched, and twisted, in hopes that it might just work well enough to help his client.
The Supreme Court has held that punitive damages can virtually never exceed a 10:1 ratio of actual damages. Whether that ruling would extend to statutory damages has never been tested, but it's possible it might. Certainly the RIAA would not want to argue that the purpose of statutory damages is to be punitive, if it wishes to avoid such an extension.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
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."
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
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.
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.
.sig withheld by request
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.
8==8 Bones 8==8
Roads are paid for with taxes. Businesses pay taxes. So that's not a subsidy.
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.
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.'"
"Three eyes are better than one" -- Lieutenant Columbo