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."

Comments

Not really the point

[legio_noctis]

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.

Re:Not really the point

[mattventura]

It's the statutory damages used to intimidate would-be pirates into not pirating. They make an example of someone who caused less that $16 dollars of damage to try to convince people to stop downloading. Not that that even directly nets any money, since many people (especially in a recession) pirate things because they're broke.

Also, keep in mind that the RIAA probably isn't even trying to get any money out of the defendant. What will happen is that the defendant will declare bankruptcy after getting a million dollar verdict or something slapped on them. If they RIAA actually wanted get money out of people, they would sue for reasonable amounts, or actually stop suing people and actually do something productive.

Re:Not really the point

[Anonymous Coward]

I think it's possible for a teenager (or anyone) to not know that downloading music off LimeWire or other systems is not copyright infringement (or worse, 'illegal'), some examples:

1) You download an MP3 of a song that you purchased on CD because you need a digital copy for your portable music player and don't want (or know how) to rip the CD yourself. Copyright infringement? Illegal?
2) Some small artist has a new song that you download. Copyright infringement? Illegal? What if your just mistaken and confused this artist with another small artist that has released their music free on the Internet?

Of course, if said teenager was downloading a Britney Spears song then it is of course wrong, and they should be harshly punished. If they bought the Britney Spears CD then they should probably be executed.

Re:Not really the point

[Daengbo]

I certainly don't believe that she was innocently infringing, but I see no reason why her lawyer wasn't allowed to make that argument and for the court to weigh the evidence.

Re:Not really the point

[Anonymous Coward]

I could get behind this theory if we applied it to other situations - for instance, if the penalty for running a giant bank into the ground so hard that the government had to spend $17 trillion dollars cleaning it up was, say, public execution. But instead what we get is a system that somehow only manages to hand out draconian punishments to the poor and (typically) non-white.

Steal a set of golf clubs and get three-striked? Jail for life.
Steal billions of shareholder dollars via mismanagement and outright fraud? Giant "severance package" and a cushy new job.

Something's just slightly fucked up there....

Re:Not really the point

[cpt kangarooski]

Well, the issues that instantly spring to mind are:

1) The costs of tracking someone down in order to connect a person with the observed infringing behavior, and then sending out the nasty letter, are likely to exceed 1/3 of the amount demanded (assuming that the other 2/3 are to make the copyright holder, etc. 'whole' for the infringing copy). Thus, they still lose money on the overall deal.

2) Because they can't observe every infringement, and can't successfully track down every infringer that they did observe, many, perhaps most, infringers will get away scot-free. This may encourage more people to infringe in the future, if they think that the money they save when they don't get caught will be greater than the money they would spend legitimately, or would lose if they did get caught. This having been said, enforcement efforts currently only deter people from going to court if they have been caught; the odds against being caught are low enough that they don't seem to deter anyone.

3) If there is another person who had their rights infringed, who isn't represented by the authors of the letter, they could still sue, using the infringer's acceptance of the settlement offer as evidence of infringement. Unless the infringers are protected from this in some way -- by the letter-writers offering to indemnify them for any other damages caused by the infringement at issue -- then the infringers aren't made safe. And the letter-writers are never going to willingly accept that kind of risk for such a low reward.

Re:Not really the point

[Blue Stone]

I was with you up until your solution for the 'distributors'.

These people are generally one and the same as the 'downloaders' with the vast majority of non-commercial copyright infringement.

If on the other hand you changed "big penalties" to, I dunno, 5x cost, maybe you'd have a solution worth talking about.

Of course however reasonable the penalties were - assuming the impossible were to happen and your solution was operational - the copyright cartels would lobby to make them higher and higher, and want more draconian laws enacted. It's the nature of copyright and the people who are in the business of making money through using it's monopoly to restrict distribution that they are draconian: the illusion of 'property' is a strong one and goes against the nature of the medium which is inherently copyable and distributable. They want strict property laws because they believe they own the copyrighted material in much the same way as they own their trousers or their TV, and that means that every infringement (lawful or otherwise) is viewed as intolerable - it violates their control.

They stand against your solution as vehemently as they would if you proposed the abolishment of copyright: it would diminish them as masters of their own 'property' and they could only see it as a defeat.

Re:Not really the point

[Runaway1956]

"Intellectual" property isn't property. That's the whole problem today - those people who lay claim to this or that "IP" are trying to change the very definition of property.

The fact that many slashdotters benefit from the corporation's definition of "property" has little bearing on the fact that it is wrong.

What has fallen into the public domain, this year? Anything? Any songs written and performed since 1950? Can you name any?

I have nothing but utter contempt for today's copyright laws, and less than contempt for the people who bribe our representatives to pass new "law" to protect them. As for the judges - they've forgotten who they are supposed to serve, as well. They are PUBLIC servants, not corporate servants. It's past time that all branches of government stopped whoring themselves to the corporations.

Re:Not really the point

[Idiomatick]

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.

Re:Not really the point

[cpt kangarooski]

The issue is that slavery violated a fundamental moral right to freedom and human dignity. Copyright laws do not violate your rights, because you do not have the right to free (as in beer) copies of the latest Britney Spears music.

I don't know. We have a right to free speech, and free press. This encompasses not only a right to our own original speech, but to repeat the speech of other people. For example, this is why if the government attempted to prevent me from reading Shakespeare aloud in public, I'd be able be go to court to stop them, even though I am not Shakespeare.

When we empower the government to grant copyrights, we temporarily, and to a limited extent, allow the copyright holders to prohibit us from exercising our fundamental right to free speech with regard to their works. The idea is that the public will benefit from having more works created and published, and will be harmed by the copyright restricting them. If enough works are created and published, and the copyright is sufficiently minimal in breadth and length, i.e. getting the most for the least, there can be a net public benefit, greater than that which would be enjoyed if there were no copyright at all.

There's no fundamental moral right to have copyrights; they're merely utilitarian. They can be very good for society, and to the extent that they are, I support them. But free speech is a critically important right, even when it comes to verbatim repetition of the words of another person. While I can tolerate good copyright laws, I can respect the position that even the best copyright law, which yielded the greatest net public benefit, would be too much of an infringement of free speech to be tolerable.

Re:Rape.

[mangu]

And yes, rape is a strong word

So is "stealing" when applied to copying a CD.

Re:What exactly are the ethics of the RIAA?

[gauauu]

Nope, the reason they don't go after the counterfeiters at flea markets is because that's not the "threat" to them...(how many people do you know that buy fake cds at flea markets)...kids downloading songs off bittorrent is. The price of legal downloads has very little to do with it...yes there are a few people out there that make choices of pirate vs buy based on price/value/etc, but for most, it's "free vs pay?" and free always wins. (yes, you can argue that YOU would just buy instead of pirate if it was just cheap enough, for whatever magical value of "cheap enough" you've defined, but if so you are either a minority or a liar)

So they go after kids who download, and shoot for as big a penalty as possible. Not because they themselves even believe that the penalty is correct, but because they are trying to scare other people away from downloading. If people think "wow, my life will be ruined if I get caught" then the RIAA believes just maybe less people will illegally download.

Now I'm not saying it's right, but it's at least reasonably logical.

Re:Downloading is not about saving money

[Znork]

They will lose money on the overall deal.

If you include the people they've pissed off so badly they will no longer give any money to any media company for any reason whatsoever, and will do whatever they can to deny them income beyond that, I'd say the damage they've caused themselves goes quite a bit beyond losing money.

Personally I can certainly afford buying a lot of media, but people raping teenagers simply are not getting my money.