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

[selven]

Hi, I'm a teenager in Canada, which is on the planet. I know that downloading music is legal where I am.

Re:Not really the point

[PFI_Optix]

Seriously, the labels needs to start with this:

"We have evidence that you downloaded X songs (attach a list) for which we own the copyrights. We would like to settle this matter quietly and without legal action. To that end, we would accept a settlement of X * 1.5 dollars in order to resolve this matter. In return, we will arrange for you to have legal digital versions of the songs in question via one of the listed services (iTunes, etc) If you decline this offer, we suggest you retain a lawyer and have them contact our legal department."

It's simple, reasonable, and only mildly threatening. It carries a modest 50% penalty over the cost per song.

They should be going after distributors with the big penalties, not the downloaders.

Re:Not really the point

[MarkvW]

Bankruptcy isn't the most wonderful solution if the debtor has anything of value. The Chapter 7 trustee gets to sell all the debtor's non-exempt assets.

On the other hand, if you have nothing, bankruptcy is a good way to make a fresh start.

I'd be willing to bet that people who don't own much of anything are big advocates of unrestrained piracy and people with property are much less eager to advocate piracy.

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

[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.

Rape.

[headkase]

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.

Re:Rape.

[mangu]

And yes, rape is a strong word

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

Re:Rape.

[DarkOx]

He who controls the language in use controls the debate. In recognition of that I used to feel as you do. If others are going to try and conduct discourse with loaded terms like "piracy" when the mean copyright infringement; than we should do the same and brand the fascists and the like.

I have not given up the above tactic just yet but more and more I am thinking the strategy does not work. Look at DC the debate just gets ever more shrill; on all subjects. Its getting to the point were we wont be able to discuss the issues at all because those with opposing viewpoints can't even understand what the are saying to each other.

I am starting to to think a better answer would just be to call them out on the language. Just state plainly you used a bunch of loaded terms that connote unrelated but emotionally charged subjects to distract form the matter at hand and I am not going to consider your arguments or ideas as valid if you are unwilling to state them in a way that at least attempts to use neutral language.

Re:Rape.

[girlintraining]

When will it finally be seen that the effect civil law has when applied to criminal cases is really rape?

Right about the time we start treating it like rape. The belief that enhanced understanding of a problem will stir a people to action is one of mankind's oldest illusions. You must be the change you wish to see in the world, not count on others to "see the light".

Since you mention rape specifically, let me share a personal anecdote. Of the people I know who have been raped (and I am counted amongst that number), the community response is usually not to go to the police (who are useless and will do nothing anyway) -- it's to get the person to a hospital and checked out, and while that's happening we assemble a bunch of people, find the fucker, and beat him to within an inch of his life. And there's usually a couple of us after that keep an eye on him wherever he runs to, and makes sure wherever he moves, that scarlet letter follows him around. Little birdies, you know. At least that's how we do it in the projects and lower-income parts of town. I don't know how rich people do it. I mean, if you're 19, blonde, white and got C cups or better you've got a chance at getting a conviction... The rest of us, well... Our justice springs from a darker place. And our sufferance is a quieter kind. Very few of us ever see the inside of a courtroom.

In this, you and I are alike in our common desire for change -- we wish for justice, pray for it, ask those in power to bring it to us, but we get form letters back, with xeroxed signatures on official letterhead. They don't care about you, or me. They care about money. So if you want justice, you either need money, a lot of people who will stand with you... or a gun. I wish it weren't that way, I really do. But when a government ceases to listen to its people, who shout in the night "Please help us!" ... Such actions are inevitable.

If the legal system offers no remedy for you, and there is no way for peaceful assembly and protest to have any influence upon the institutions which are responsible for the redress of your greviance then our founding fathers made it clear what a citizen's last recourse is: Take up arms. They've broken the most basic of social contracts between a citizen and its government, which is this: In exchange for protection of my person, of my personal interests, and peaceful redress of my greviances, I will in return offer you compensation in the form of taxation, military service (in some countries, but not ours) and will do my best to uphold the lawful principles and standards of my community. When this contract is broken and cannot be mended, the government has sewn the seeds of its own destruction. The justice system is the cornerstone of this negotiation of that contract. If it fails, everything else falls.

Fight hard to mend it. Write letters to everyone you know. Write to the judges. You don't have to be a lawyer. Just be a person, a citizen, and state as clearly as you can why this must be changed. They are human beings too, just like you. They will listen, even if they do not answer you in kind. Beg them if you must. Do everything you can, and fight until you can't. And when you've done everything you can, when you've put your full force of will behind your actions, you may find that the universe assists in mysterious ways. Believe it or not, human beings aren't fundamentally evil -- just often misled. And most problems have a solution that is peaceful, if only you can maintain the patience and self-respect for your own morality to do so.

Of course, as I said in my example above, you might have gathered I don't have that kind of resolve. But you might.

Texas

[girlintraining]

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! :(

Re:No bling for the sing bitches.

[NewYorkCountryLawyer]

The RIAA is the best argument in the world not to buy music.

The RIAA is the best argument in the world why you SHOULD be buying music -- NON-RIAA MUSIC (see RIAA Radar).

hmm

[nomadic]

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.

Re:NewYorkLaywer gives another dishonest summary

[NewYorkCountryLawyer]

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.)

1. The name is "NewYorkCountryLawyer".

2. Your characterization of my summary as "dishonest" was quite dishonest on your part.

3. The decision was based on access; it was because of their conclusion on "access" that her lack of knowledge, etc., became irrelevant. Had she not had access, it would have been quite relevant.

4. I found the discussion of "access" vague, and for that reason used the term "seems". I wasn't sure exactly what they were saying. From their decision it seems that they had established that the copies were downloaded from copies that bore no copyright notice. So it would seem that the record supported the lower court's finding that there was no "access", and that they were defining access differently.