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Appeals Court Knocks Out "Innocent Infringement"
NewYorkCountryLawyer writes "A 3-judge panel of the US Court of Appeals for the 5th Circuit has ruled that a Texas teenager was not entitled to invoke the innocent infringement defense in an RIAA file-sharing case where she had admittedly made unauthorized downloads of all of the 16 song files in question, and had not disputed that she had 'access' to the CD versions of the songs which bore copyright notices. The 11-page decision (PDF) handed down in Maverick Recording v. Harper seems to equate 'access' with the mere fact that CDs on sale in stores had copyright notices, and that she was free to go to such stores. In my opinion, however, that is not the type of access contemplated in the statute, as the reference to 'access' in the statute was intended to obviate the 'innocence' defense where the copy reproduced bore a copyright notice. The court also held that the 'making available' issue was irrelevant to the appeal, and that the constitutional argument as to excessiveness of damages had not been preserved for appeal."
Whether she was innocently infringing or not isn't really the point because it's fairly obvious that no teenager on the planet who pirates music doesn't know that it's illegal.
The problem is that she's in court for downloading 16 songs. Randomly attacking people who will find it difficult to defend themselves legally isn't the right way to go about reducing piracy.
When will it finally be seen that the effect civil law has when applied to criminal cases is really rape? The civil law if I'm not mistaken was for big counterfeiters and other corporations screwing each other over. If copyright is never to be reformed then at least apply criminal law against music file sharers: 24 songs -> 1 CD = $20 = $200 fine, move along. Not $1.92 million rape judgement. And yes, rape is a strong word but so is what American courts are doing to their citizens at the behest of a minority of corporations.
Shh.
I motion before the assembled citizens that Texas have it's state status revoked with immediate effect. Lately it seems like every legal ruling and precident that comes out of that state is a violation of one human right or another, or at least criminally stupid. We beat them once, I'm sure we can do it again! :(
#fuckbeta #iamslashdot #dicemustdie
The RIAA is the best argument in the world not to buy music. They've made me lose respect for the entire profession of musician. I'm not going to buy anymore music until they stop this crap. The buck stops with the people on stage. I have bought -1- CD in the past 5 years. I used to spend $100 a week minimum on them. Every week, every year, for close to a decade of music buying. Then, because of the RIAA I just stopped cold. Now I just stream music, listen to the radio, and play what I already own. Yes, that's a lot of money I'm not spending on "art" anymore. It works for me though. I'm entirely capable of managing my own digital rights in a legal manner, and this is part of my chosen regime to avoid the risk of predatory abusers of the US legal system. Don't get me started on DRM either. In a nutshell DRM means it needs to be discarded, not purchased, used, or otherwise exposed to the use of electricity in any way. DRM is a disease that needs careful washing to avoid. It's most noticeable in that it makes whatever has it smell like shit.
seems to equate 'access' with the mere fact that CDs on sale in stores had copyright notices, and that she was free to go to such stores.
I don't read it like that; the Court seems to be saying the trial judge's ruling, that the copyright notice alone wouldn't bar an innocent infringer defense, is incorrect as a matter of law. Since she did not contest she had access, her understanding (or lack of it) does not support an innocent infringer defense under the statute. If she had argued access, she might have had a shot.
By your argument, nearly every infringement (at least those which are detrimental to someone else) might be seen as stealing.
Sleep stealing by making loud noises at night, stealing of health by polluting the air, stealing everywhere.
I hereby propose that law books be changed and that they henceforth only talk about stealing.
The situation we find ourselves in right now is that the Internet is something we've never seen before. Existing law is a shitty fit for it, it needs to be torn down, rethought, and rebuilt. It is exactly the situation like when automobiles were first introduced and laws requiring a flag person to run ahead of the car to warn of its coming existed. The law is stupid. Everyone is arguing from stupid positions and instead of fitting the law properly to the new situation we have initiatives like ACTA which seek to cement the stupidity even further.
Shh.
How is the RIAA running their sting operations anyway? You figure they'd go after mass production counterfeiting at flea markets instead of just sitting on their asses hijacking or sniffing or whatever the hell they're doing. I thought the main reason such downloads took off in the first place was because of the price gouging of legal downloads. Since prices for legal downloads haven't really dropped in a meaningful way, I assume they're more in it for the money than the moral purpose of legal behaviour. So, if they're going to stoop to making an example of a kid, then I say they've opened the door for anyone to stoop to any level to make an example out of them. Damn I'm scatter brained this morning!
She was not busted for making unauthorized downloads of the tunes. She was busted for making those files available for other people to download. She was distributing and that was the crime.
Because, as we know, downloading tracks is not, itself, a violation of any section of the Copyright law.
Unless you paid for the downloads from AllOfMP3. In that case, the downloader is breaking the law but they can only go after the uploader (who has a license to distribute, so it's not the uploader who is illegal, but the downloader who wasn't in Russia).
NewYorkLawyer characterized this decision as one about "access" (i.e. the argument that the defendant would have had *access* to other CDs with their copyright notices and so should have known that the same notices would have applied to downloaded music).
But the decision clearly states [page 9], "Rather than contest the fact of "access", Harper contended only that she was too young and naive to understand that the copyrights on published music applied to downloaded music."
Thus, the issue of "access" was NOT AT STAKE. It was not contested. The decision was made purely on whether Harper's ignorance of copyright law counts as a valid defense. And the court ruled clearly that ignorance of copyright law is not a valid defense. (If it were, then someone would be able to violate e.g. GPL merely by persuading the court that they didn't know how copyright worked.)
So now the prosecutors will have to prove that copies of each item were on public display in the stores which are available, at the time that the violation occurred? (Hey, that store isn't available, I don't ride the bus over there!) Are stores required to keep records of what they buy, when they put it on display, and when they sell it? And will a separate search warrant be needed for each store, for each song?
Mr Prosser said: "You were quite entitled to make any suggestions or protests at the appropriate time you know."
"Appropriate time?" hooted Arthur. "Appropriate time? The first I knew about it was when a workman 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 the house. 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 Mr Dent, the plans have been available in the local planning office for the last nine months."
"Oh yes, well as soon as I heard I went straight round to see them, 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 plans were on display ..."
"On display? I eventually had to go down to the cellar to find them."
"That's the display department."
"With a torch."
"Ah, well the lights had probably gone."
"So had the stairs."
"But look, you found the notice didn't you?"
"Yes," said Arthur, "yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying Beware of the Leopard."
Oh, was that my outside voice?
The costs of tracking and suing a teenager vastly exceed any amount she is able to pay. They will lose money on the overall deal.
That's assuming a music downloader would be willing to pay what a CD costs.
People don't download to save money. You don't save anything when you get for free something that you wouldn't buy at any price higher than zero dollars. People download because it's there and who knows when something interesting might come up.
If I had a significant risk of having to pay $0.05 for every song or $0.25 for every film I download I would never download anything at all, that's how much that shit is worth to me. I haven't even listened to most of the tracks I have downloaded. Downloading is like this: I hear a song that I like, I download the full discography of that artist, I scan over it to see if there's some other song I like.
If the media industry made an effort to understand how and why downloading works I'm sure they could find a way to get a profit from it. But calling me a thief and threatening to sue me will get them nowhere.
There are a ton of wonderful ideas here. How come you only read them in the comments of a slashdot thread. Where is the public outcry about how ridiculous this is. So many good points made here today already. It seems the RIAA is free to do what it wants because nobody takes a stance to counter. Yes I realize slash dot is public domain. So go more public.
on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access
It doesn't refer to the fact that somewhere else in the world, there is a copy lying around somewhere which does have a copyright notice. It refers to the fact that the specific phonorecord being copied has a notice. The statute rationally provides that if you're copying something with a copyright notice on it, you lose the "innocence" defense. The undisputed facts in this case were to the contrary. It was undisputed by anyone, according to the Court, that these copies were made from mp3 files in a filesharing community which did not bear a copyright notice. Accordingly, the lower court was right, and the appeals court wrong, on this point.
Ray Beckerman +5 Insightful
It is clear to this observer that not only are Texas courts far too heavily biased towards submarine and other questionable patent challenges against big companies, but also in the pocket of the Big Media trust. Funny how those 2 positions should seem to be polar opposites.
Judges should be absolutely prohibited from making any rulings in technology fields where they don't have a demonstrated competency of a high degree.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
I motion before the assembled citizens that Texas have it's state status revoked with immediate effect.
Do you honestly think that's a threat? Texas was a republic before it was a state, and its citizens are arguably the most independence-minded folk in the union, moreso even than Alaska and Vermont, both which have ongoing independence drives. This spirit is sewn into the very fabric of the state. Remember "Texas: it's a whole 'nother country"? They take that rather seriously down there. Threatening to throw them out of the union would quite literally only encourage Texans. It'd be like Bri'er Rabbit: "Oh please, Union, don't throw us out!".
Lately it seems like every legal ruling and precident that comes out of that state is a violation of one human right or another, or at least criminally stupid.
Funny how Texans think the same thing about other state and federal court rulings, eh? And they're not alone.
We beat them once, I'm sure we can do it again! :(
Well, now they're certainly quivering in their boots.
Life is hard, and the world is cruel
You are living in a a dictatorship that is run by the largest corporations in the world, you have no rights, you are a pawn in a police state, they will make a toy of you to impress upon others how truly powerless you are and how you can be crushed at a whim!
When ever possible do not "own" but rather rent, keep your money in a foreign bank, one that is secretive and immune to American legal process.
The Russians did not defeat Napoleon in direct battle but by burning everything of use and denying the French and food, shelter or fuel.
If They win a judgment against you it is better to destroy everything you own than to give it to a mob of gangsters.
Am I raving?
Oh yes, I certainly am!
I killed da wabbit -Elmer Fudd
In my opinion
Your opinion does not matter because you are not a judge but rather a biased lawyer. Your opinion is worthless.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
> And yes, it happens.
Please give us the reference(s).
Somehow I have the suspicion that you're talking about some judgment which garnished a (relatively) insignificant amount like $5/wk. and was possibly conditioned on weekly wages of much higher than that.
You deserve to be heard over me, you obviously have seen more plain old crap than I have.
Shh.
The real problem here is that the P2P is effectively a piece of malware. A 14 yo kid wants to listen to the "radio" on the computer and becomes an unwitting distributor because of the less obvious, additional redistributing functions of the malicious (to RIAA) software. RIAA is contributory to the problem by persisting in broken distribution models that (1) are cumbersome in any case, (2) overpriced per play to the usual alternate sources e.g. radio or even per play jukebox, when the kid shrugs and nevers listens again, (3) alleges charges much higher than the proportionate physical media e.g. a song available on a $5, 50 song CD (4) denies fair uses both by legal harrassment and technical impediments that are deliberate defects (both low quality and DRM) to prevent natural utilization of a single owner to (attempt to) force multiple purchases of favorites.
One has to have reservations about any legal system that would so harrass underage females and students, perhaps for other immoral purposes, over such extortionate trivia. Also such cases interfere with societally important productive development and education of children, for the upset, waste of time and precious funds. ($750 = what part of a semester's tution for playing a song on a computer as if it were the radio?)
The music industry has been well aware of the implications of these things since the 1970s. That is why copyright laws have been in constant modification since the 1970s. That the industry persistently refuses to put forth a reasonable distribution models is a demonstration of anti-trust behavior. The problem isn't that they are stupid and/or can't distribute well, the problem is that they won't, and extortionately attempt to charge full retail price of physical media (or higher) for each repeated ephemeral use, if possible. (I still can play our records from the 60s after a 1000+ plays)
Indeed, but even as far as innocence or not, apparently she was 15 years old - at that age, we deem someone incapable of being informed or capable enough to make decisions such as having sex, taking a photo of themselves say topless, buying a lottery ticket, having a drink, smoking a cigarette. In some places, they can't do that for years later.
But apparently, at 15 they're expected to fully understand the ins and outs of copyright law, as well as being fully aware and liable for damages.
Yes, there is a good reason for punishing children who commit criminal offences, where they are a danger to society. But piracy is a civil issue. Children can't even enter legal contracts - should they be liable under civil legal issues?
(And don't be too sure that everyone knows the law, even adults, and even musicians - e.g., UK artists Lily Allen who, after accusing pirates of being thieves, was revealed to have been illegally distributing other artists' works in order to promote her own commercial material, in the form of mix tapes, and then defended it with "i didn't have a knowledge of the workings of the music industry back then" - what 15 year old has a knowledge of the music industry?)
The article is a bit misleading when it says "Innocent Infringement Defense" as it is not a defense of the charge if infringement. It is actually an admission that infringement took place, but requests a lower penalty as the infringement was not deliberate or unforeseen. In this case, the defendant made the argument that the works in question didn't have any obvious copyright markings and she didn't know they were under copyright. (I suspect they asked if she had looked at the CD in the store and had seen the copyright notice on it, and she said yes).
A quick summary of the Innocent Infringement Response for those who actually click links. http://itlaw.wikia.com/wiki/Innocent_infringement
Just about any product out there comes with some sort of fine print, often at least partially unenforceable, lawyers would have a hard time sorting it all out, why is a teenager expected to?
Analogies don't equal equalities, they are merely somewhat analogous.
I am still waiting for a clear and concise definition of what I am buying when I buy music. I stopped buying music at the advent of MP3. when I bought a LP or a tape I new I could do what ever I wanted with it. make a mix tape or even sell it when I tired of it or share with my friends. All legal and above board. Now I'm not sure what I would be paying for. I simply refuse to give my money to someone who refuses to define what he is selling so its radio for me and I have been stuck here for a while.
The defendants really should start hiring competent counsel.
I want to point out that the laws are typically anti-poor not racist these days. We've grown past that i think. It doesn't help to misplace your anger.
You are right, the laws themselves are classist, not racist. However, the selective enforcement of these laws does tend to fall on racist lines quite often.
That's not even getting into the fact that our class structure itself is still racist (although that is slowly changing, we're totally not there yet).
Knowledge != Intelligence
We all know why piracy exists.. your cousin, your workmates and every man's dog torrents because of ogliopolies handing us the same shitty re-make movie scripts and row-row-fight-da-powa lyrics.
Plus take it from me. If you've live in the places where piracy is an economic saviour for the otherwise unemployed (Bangkok being my experience) people take their job security seriously. Somebody's cousin is a police officer who then leaks when the next few months' raids will happen - all the stalls are conveniently covered for a few hours, and things get back to business. I've been there waiting for the police to leave a few times at Panthip, so it's not just a myth.
Distributors are hard to deal with on the commercial level, period. When you-and-me distributors figure out that they're being watched as they seed that torrent they just downloaded, we'll move to obsfucated and deniable transfer schemes, especially as the overhead of schemes like OFFsystem becomes less and less bothersome as bandwidths increase globally.
We'd already be doing it if torrenting wasn't so easy and, for 99% of people, "risk free" since they haven't been served papers yet. The IP 'rights' cartels need to work for their money or they'll get zero when people sneakernet their way around $250 cinema tickets for movies that aren't released anywhere else for a whole year. Piracy is a downward force on prices and an upward force on quality and availability, so don't hate it.. hate the business.