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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.
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
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! :)
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
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 $750/song goes something like this.
RIAA: She knew what she was doing.
Ms Harper: No I didn't. I was 16 and everyone was doing it.
Judge: Okay, I'll accept that. You'll have to take her house, her parent's house and her car as damages, but she can keep the shirt on her back.
RIAA: But your honour, it's a lovely purple coloured silk shirt, and she really did know what she was doing.
Judge: No. She can keep her shirt. Let that be a lesson to you RIAA.
These posts express my own personal views, not those of my employer
Unless your favorite artist won't play at any all-ages venues near you.
Simple solution to that problem, grow up.
/.
I was going to have some terrible meandering reply about trying to pick up girls/guys their own age, but this is
"There are no facts, only interpretations." --Friedrich Nietzsche.
You can't figure out how to get into a rock concert if you're slightly underaged?
Kids today have no imagination whatsoever.
The Supreme Court has held that punitive damages can virtually never exceed a 10:1 ratio of actual damages. Whether that ruling would extend to statutory damages has never been tested, but it's possible it might. Certainly the RIAA would not want to argue that the purpose of statutory damages is to be punitive, if it wishes to avoid such an extension.
10 PRINT CHR$(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
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
Heh! Back when I was underage, it was the drummers and not the lead singers that had a tendency to die early.
Laissez lire, et laissez danser; ces deux amusements ne feront jamais de mal au monde. - Voltaire
Yeah, but does anyone even notice when the drummer dies? On stage, even.
Cynical Idealist