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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.
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!
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.)
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.
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
This spirit is sewn into the very fabric of the state.
Yes, but the land is worth nothing. It is the people that make the land great, or not. Maybe if they'd listened to the people that were there first, instead of just taking what they had and killing any who protested, they'd have a more educated approach on the matter.
Texas was a republic before it was a state,
No, Texas was a bunch of settlements that repeatedly failed until the mid-1700s, when Spain setup several successful settlements there, notably San Antonio, and called it New Spain. Present-day Texas was considered to be mostly owned by the native peoples at that time, and Spain claiming a small portion of it for its settlements. In 1803, the US wanted to annex Texas. Spain said no. They drew some lines in the sand and called it a day. In 1821, The Mexicans won a war and claimed the territory formerly claimed by Spain. It then fell under Mexican law and became the state of Coahuila y Tejas. It wasn't until 1835 that the people of Texas beat Mexico and declared themselves independent.
At this point, we can safely say Texas was an independent state. Now here's the crucial fact: You may recall from your social studies class that the United States was founded in 1788, 47 years beforehand. But I understand that the Texas public education system has been having some issues regarding factual presentation lately, so I'll forgive you for not knowing that. It's not your fault, afterall.
Moving on -- Just as quickly, the new government collapsed -- in 1836. From 1837 to 1842, Mexico fought with the so-called republic (and I say so-called because it was relative anarchy during that time by historical account) winning some battles and losing others, while the government of Texas negotiated with the United States for statehood (and protection). It was this inability of the Republic of Texas to hold on to its territories that was a decisive factor in it's repeated requests for annexation to the United States. In 1845, Texas was annexed to the United States. The United States then came in, beat the snot out of Mexico, and in 1848 Mexico called it quits and ceded most of what is now modern Texas to the United States. Of course, once we got their nuts out of the fire, in 1861 they ceded from the Union along with the rest of the south, and the civil war happened. I won't bore you with the details of those fine years of our country's history, I'm sure you've read about it.
Conclusion
So I must wonder, after a careful review of the historical facts, where of all places this notion of Texas being "independently minded" comes from. It would sound to me like it's a state incapable of forming its own governance nor maintaining suitable arms to protect its borders and interests, and I would assert very little's changed since: They're still not capable of defending their borders from illegal immigration and they can't figure out how to govern themselves well enough not to be an embarassment to the Union.
Threatening to throw them out of the union would quite literally only encourage Texans.
We can only hope.
#fuckbeta #iamslashdot #dicemustdie
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?)