Slashdot Mirror
"Innocent Infringement" Defense May Reach Supreme Court
NewYorkCountryLawyer writes "Several years ago a federal court in Texas ordered the RIAA, in an 'innocent infringement' case against a teenager, to either accept $200 per infringed work, or to go to trial over the innocent infringement issue, in Maverick Recording Co v. Harper. Recently, an appeals court reversed, saying that the defendant could not avail herself of the innocent infringement defense since there were CDs, bearing copyright notices, available in stores, even though the copies she had made were from MP3 files which bore no such notice. Now, a petition for certiorari has been filed on the defendant's behalf, arguing that the 5th Circuit's ruling would make it impossible for anyone to interpose an innocent infringement case, even where they had never seen a copyright notice. The lawyers filing the petition on defendant's behalf are the same firm that represented Jammie Thomas in her second trial, and the motion which resulted in her verdict being reduced from $1.92 million to $54,000."
...subpoena ??
Religous speak to God. Insane are spoken to by God. When all shut up, one can finally hear Shostakovich in peace
...how many licenses can the same piece of software be under?
And could not such an example apply to music?
It seems like copyright notices on CDs and those damn unstoppable and horrendous notices during DVD previews are just preaching to the choir. However, I am glad there are some people working to return sanity to the penalties of the RIAA.
how about when same thing changes licenses terms many times.
The arguments will go like this:
RIAA: Ignorance is no excuse from the law. Respect ma authoria'!
Defense: How can anyone reasonably know what is and isn't copyrighted or what the terms are if it's not included with the work?
And by a 5-3 margin, they'll say mp3s have a 'copyright bit' embedded in the ID3 tag and bypassing it is a violation of the DMCA. Common sense surrenders.
#fuckbeta #iamslashdot #dicemustdie
Well, I didn't see a sign in the store telling me it was illegal to steal stuff...
The copyright notices have been posted there for the last nine months, though the leopard might have used them for kitty litter.
If I have been able to see further than others, it is because I bought a pair of binoculars.
The lawyers filing the petition on defendant's behalf are the same firm that represented Jammie Thomas in her second trial,
Considering their history of abject failure, I don't think I'd want them defending me.
If a person can't innocently infringe because there is information out there that the material is copyrighted, it should follow that an artist (or distributor) should expect that somewhere out there is a person who will pirate the material and not pay. So why don't they just drop the case and accept that people pirate music? What you think you've got a monopoly on being unreasonable?
On what planet is any amount of personal infringment OF ENTERTAINMENT worth thousands of dollars? When I was a school kid in Australia we were taught about the attrocious and unreasonble practice of sending starving people to a prison half away around the world for stealing a loaf of bread when they were starving. Well I grant you no one ever died of not having a crappy RIAA song to listen to, but it seems we're trying to bring back the most unreasoanble and disproportionate punishments possible. What next? Should people be summarily executed for backing up a CD? Just how far is this shit going to go? And these CRIMES AGAINST HUMANITY keep getting pushed onto the whole world through trade and other agreements. As a reasonable person, how the hell am I suppose to feel any kind of sympathy for people who would push such laws?
These posts express my own personal views, not those of my employer
Are there sufficient legal issues here for the Court to even take up the case?
extend, extinguish, and do it with the help of the floss community. ccmixter.org has some terrific songs. Dont get me wrong, i love commercial artists, i just wish there were less overweight record execs in bently's playing puppeteer with the art.
Good people go to bed earlier.
Key word in the title of the post: "Innocent Infringement" Defense May Reach Supreme Court
from Wikipedia entry for Certiorari:
The court denies the vast majority of petitions and thus leaves the decision of the lower court to stand without review; it takes roughly 80 to 150 cases each term. In the most recently-concluded term, for example, 8,241 petitions were filed, with a grant rate of approximately 1.1%
Those are some slim chances
No, there is no "-1 I'LL NEVER ADMIT BEING WRONG!!!" mod.
There are at least three scenarios in which "innocent intent" may be applied to infringing content:
1. The defendant’s work is copied from the plaintiffs’, but was done subconsciously and in good faith, having forgotten that the plaintiffs’ work was the source.
2. Defendant’s work is based upon an infringing work furnished by a third party.
3. Defendant consciously and intentionally copies from the plaintiff’s work, with a good faith belief that the conduct is not infringing.
The defendant must prove that it did not know and should not have known that its conduct constituted infringement.
http://itlaw.wikia.com/wiki/Innocent_infringement
I've always wondered about this portion of the law and thought that it would be more appropriate not to just find the files on the file-sharing user's computer but to also find the work being infringed.
The record companies have used the 'making available' justification to fry some and I almost buy that, if I take my purchased CD's and transcode them to a compressed format for personal use that could be fair use, bit for bit copies might not be but compressed should be.
If I take the same 'inferior' copies and place them on a file-sharing tool for the purpose of allowing others access I have, if I believe what I read made them available, this is where I suppose the IANAL bit comes into play but... posting the files with the copyright notice should make it clear that others are violating the copyright (my copy, archival or not) posting the files without the copyright notice should open the other users of the file-sharing tool to 'innocent infringer' status.
And since when did individual tracks count as a work infringed? If I copy the CD that was sold as a single item (oh I love this) how can the twelve tracks on it be anything other than fractions of the whole? If you can prove it was itunes or singles thats one thing but we are clearly talking about songs ripped from a CD, I think even if innocent infringement is tossed someone should be arguing (as the record companies and artists have tried to prevent Apple from doing) that a track represents a portion of the 'art' and as such should be treated as such in compensation. I would still like to meet the *moron* who thinks suing your customer base is a good business plan, than again, maybe I don't.
Unix, an obscure operating system developed by bored researchers in an attempt to get a better game playing experience.
There is actually at least one sales person working at MicroCenter that believes that anyone who uses Linux is a pirate because they didn't pay for it.
and those that did pay for it are pirates because those who wrote the code didn't share in the pay. Simply put Linux is for Pirates.
So how about everyone everywhere assume everything is either copyrighted or patented or trademarked and just submit to "them" who ever "them" may be.
Does that work for you joe the dragon? Or are you now going to sue me for using your copyrighted nick.
Seriously, the RiAA and court system has way over stepped punishment of the guilty and everyone knows it.
All copyrighted songs should be required to have at least one "Backup Singer" that sings the lyrics to the license agreement for the duration of the song.
That's true in spirit, but not in the letter of the law. Let's see, in the Slashdot spirit, an analogy.
A few years ago I was in France and saw a small grocery store that had a fruit stand on the sidewalk. It was cold, in December, there was no one outside and the store door was closed. People picked their fruit in the stand and entered the store to pay.
That grocery store worked on an honor system. It worked, not because the French people are particularly honest, but because the fruit weren't too expensive. If a pear had cost $50 and a banana $100 you can bet a lot of people would just pick their fruit and walk away without paying.
The media industry is charging prices at least an order of magnitude more than they could reasonably do. A CD or DVD costing upwards of $30 is simply absurd, $3 would be enough to cover their costs plus a very nice profit. They cannot expect people to abide to an honor system with those prices.
If the industry isn't reasonable, the consumers need not be reasonable either. Any song could possibly have been released into the public domain, so we have the right to assume that public domain is the default status for any song. When the industry starts charging reasonable prices I will start to make reasonable guesses about copyright status.
Copyright infringement, at least in the US, is a crime willeus tenspartum, which means "willingness demostrated" (roughly), in other words, you have to intend to commit the crime.
Then explain the million-dollar verdict against George Harrison in Bright Tunes Music v. Harrisongs Music, in which George Harrison didn't know he was accidentally copying half of Ronald Mack's song "He's So Fine" into Harrison's "My Sweet Lord".
but it seems we're trying to bring back the most unreasoanble and disproportionate punishments possible.
What part of the Constitution prohibits the government making a law against stealing?
Nothing. There are federal laws against stealing, in both the "copyright infringement" sense and the "transporting stolen property across state lines" sense. But the grandparent's point, as I understand it, is that the people have an Eighth Amendment right to decline to pay excessive fines.
And the RIAA is not. Not in terms of pricing, not in terms of how they treat their customers, not in terms of their corporate ethics, etc. etc.
Cheers,
If it is a work of art, in the U.S. it is, by default, copyright (even if not registered). Therefore, unless one knows (or believes) it to be in the public domain, or licensed to one, one should reasonably presume it is copyright, no?
Say I write and record a song. It consists of a musical work and a sound recording. Is it copyrighted? And can I be sure that the song is copyrighted to me?
1. The defendant’s work is copied from the plaintiffs’, but was done subconsciously and in good faith, having forgotten that the plaintiffs’ work was the source.
Example: Bright Tunes Music v. Harrisongs Music, concerning the song "My Sweet Lord", although the actual damages in that case may have been excessive.
2. Defendant’s work is based upon an infringing work furnished by a third party.
The closest thing I can find to this is the GPL-violating port of ScummVM used for the first edition of Pajama Sam for Wii: a contractor hid the fact that a work was based on GPL code.
3. Defendant consciously and intentionally copies from the plaintiff’s work, with a good faith belief that the conduct is not infringing.
The defendant must prove that it did not know and should not have known that its conduct constituted infringement.
The key example here is Rowling v. RDR Books, concerning Harry Potter Lexicon.
re-distribution is where the money is for the media powerhouse lawsuits.
I download a song- I'm pretty much in the clear
I download a song and simultaneously distribute- that's what is so expensive for consumers under the law
leeching is cheaper than seeding
every day http://en.wikipedia.org/wiki/Special:Random
So how about everyone everywhere assume everything is either copyrighted or patented or trademarked and just submit to "them" who ever "them" may be.
Your Linux distribution has a trademarked logo. The software is licensed. It just might include some patented technologies.
H.264 support in Ubuntu's OEM distribution, for example.
Most of the software in Ubuntu is covered under the GNU General Public License. This *is* a license agreement. Unlike most license agreements, however, it does not restrict your usage of the software, but it does restrict the terms under which you can re-distribute it. /usr/share/doc/*/copyright. Ubuntu license agreement
Likewise, while most of the software is covered by the GPL, *all* the software on the system is covered by some kind of license agreement be it MIT, X, Artistic, Apache, BSD, GPL, LGPL, etc, etc.
You will find the license agreements for the various pieces of software installed on your system in
The "Creative Commons" license is - by default - a license protected by the law of copyright:
CC's Unported licenses were created using standard terms from the Berne Convention for the Protection of Literary and Artistic Works and other international treaties related to copyright and intellectual property. FFAQ
MicroCenter.com stocks all of 13 items in Linux software, including, somewhat improbably, Slackware Linux.
Linux Software
MicroCenter catalogs about 30,000 items in all.
In hardware, 2 low-spec Ubuntu Linux [Desktop] PCs.
That the - IP protected to the max - product owns the consumer market space couldn't be made plainer.
Frankly this whole issue is revolving around old and dead tech and it just needs to die off and let something fresh and new take its place. With broadband being close to everywhere in so many forms, a universal subscription service for all music would be the smart way to solve this. A monthly fee to listen to whatever you want, whenever or where ever you want. The artists are paid according to a percentage based off of how much each of their works are played. This would provide a level playing field for artists, and give the subscribers fresh music as well as an archive. Seriously, consider how outdated the concept of "storing" ones music becomes with the ability for it to be accessed from a central storage.
Take the Red Pill.
On what planet is any amount of personal infringment OF ENTERTAINMENT worth thousands of dollars?
There is a nice mathematical argument that seems to have been overlooked. The penalties are based on this idea that an individual could have distributed a song hundreds of times, and the fines should be computed by some multiple of that. The law was meant to nail those shady businesses selling bootleg copies individually, profiting on each sale, and these industry bullies have twisted that around for use in their campaign of fear.
The math of exponential growth doesn't support the notion of treating a distributor of bits the same as a distributor of physical media. A person doesn't have to send out 100 copies of a song for it to spread all over a network. Not even 2 copies are necessary. All that's needed is some amount slightly greater than 1. If everyone who wants it distributes a song 1.1 times, exponential growth will penetrate every corner, saturating the network. Highly likely that the network will have spread a song to every interested party well before any one individual on a modest connection could possibly have uploaded it more than a handful of times. It may well be impossible for the originator to send out more than a few copies before everyone who wants it has got it. Such being the case for the originator, most definitely no one in the middle of the network will be asked for many copies.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
I'm wondering why every one is in a dither about this when the most obvious reasonable response is to boycott the entertainment industry. Are we all so brainwashed that we think that we need this stuff to survive and that we just wring our hands when some unfortunate soul gets caught and sentenced to a life of indentured servitude or prison? My favorite composer, Beethoven, spent much of his working life fighting to get proper remuneration and respect for his work. We have come a long way from when the likes of Mozart were buried in unmarked graves to when recording artists and their agencies demand millions for their work and can destroy the lives of those who dare to make a copy of a recording. Actually, I'd settle for going back to the analog world, when reasonable copyright law existed, but since that's not going to happen, why not just say no! Someone spoke of educating people about unfair copyright laws. How about educating the entertainment industry about who's really important in this world and about the power the people and their money really have.
PLEASE tell me you aren't in Pennsylvania! I've often sent people to the Micro Center store in Radnor, because they have people who actually know what they're talking about (or know where to find someone who knows, if it's something beyond them). I'd hate to think they're going the way of CompUSA. When I had to ask questions there, I started to wonder if these people had ever SEEN a computer!
WARNING: I cannot be help responsible for the above, as apparently my cats have learned how to type.
One wonders which MicroCenter it is...give me one more reason to avoid shopping there; I had my laptop stolen out of my truck while shopping for someone else's laptop repair parts.
The lawyers filing the petition on defendant's behalf are the same firm that represented Jammie Thomas in her second trial, and the motion which resulted in her verdict being reduced from $1.92 million to $54,000."
Before it sounds like these are some sort of Super Lawyers...
After the first trial, Jammie Thomas had a verdict against her of $222,000. This firm represented her in the second trial, which resulted in a verdict against her of $1.92 million. Ouch. Perhaps it's best that they stick to appeals, because juries apparently hate them.
Go to Fry's. They actually won't hire people who have been exposed to PCP on a daily basis. MicroCenter should follow suit.
In the retrial, Camara lost big time and managed to get the jury-awarded damages increased from $222,000 to $1.92 million. It was only after the trial that Camara filed a "Aw, c'mon" motion and the judge chose to reduce the damages. The motion regarding the amount of damages could have been filed at any time, and the verdict wasn't changed. Camara lost. He's the pro bono defendant of last resort.
If you were blocking sigs, you wouldn't have to read this.
Harrison was later sued for copyright infringement over the single "My Sweet Lord" because of its similarity to the 1963 Chiffons single "He's So Fine", owned by Bright Tunes. Harrison denied deliberately stealing the song, but he lost the resulting court case in 1976 as the judge accepted that Harrison had "subconsciously" plagiarised "He's So Fine".
My favourite bit:
"the motion which resulted in her verdict being reduced from $1.92 million to $54,000."
In other words, buy a house for some fat RIAA jerk and still concider yourself a lucky slave. A house for a few bits of crap. How much did Manhattan cost and where are the american citizens now?
O.k. here's a really rough idea. All this is about copyright - basically copying their music without paying. But isn't the rule that when you copy something, you have an almost perfect copy of the original? Well that's not the case with most MP3s. When you RIP the original song, you get an entirely different file. A file is just a string of 1s and 0s after all and the"copy" is not really a copy of the original, it's an entirely different string of 1s and 0s that is unique to itself. So If I am distributing my own string of 1s and 0s and not theirs, I don't really see on what ground they can hold me responsible...
RIAA: Ignorance is no excuse from the law. Respect ma authoria'!
Defense: How can anyone reasonably know what is and isn't copyrighted or what the terms are if it's not included with the work?
Defense: Moreover, copyright merely grants the copyright holder the right to control copying. It does not by any means guarantee that such a right is unconditionally asserted, or imply that copying copyrighted content is ipso facto a breach of copyright. In fact, there is a great deal of copyrighted material - including modern music - for which the copyright holder actually encourages copying [Defense counsel might point to the more than 10GB of copyrighted music freely downloadable from SXSW showcases 2003-2010].
Rejection of the "innocent defense" must be contingent on both the copyright status being clear in the work and the denial of the right to copy being clear in the work. These conditions are largely present in movies, but not in music.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
> I have trouble imagining anyone asserting with a straight face that a
> reasonable person would believe the songs were off copyright attached.
The discovery evidence from Viacom vs. YouTube/Google proves you wrong. We can thank Viacom for showing just how possible it might be that "viral"/pirate content is actually being distributed by the rights holder.
Most of us aren't chummy with the **AAs so that we can know what the reality is.
Sorry! Even those of us who still care (and I think that those who care just make sure that the artists they like get some of their money, regardless of the exact strictures of copyright law).
Browse the net much? Every time you visit a new web page you somehow magically first manage to view the license terms found at a totally different page?
That is, if there even is such a license (a lot of amateur pages don't include licenses).
I'm sure that even the US courts would agree that content posted on the net can be assumed to have a certain minimal-rights implicit license just by the fact it was posted where it was posted.
That person is breathing air containing oxygen produced by my lawn. I demand they pay me for it.
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
Considering how we all hate spam, I'm sure you agree that anyone who forwards a chain letter by email to more than one other person should be tarred and feathered.
(Sorry it wasn't a car analogy --- cars are real property.)
The US court system has already ruled that unreasonably large judgments infringe on the right to due process. We're just now starting to see exactly how that's going to be interpreted in the new digital domain.
Why would I want to deal with drug addled service support?
Spiro Agnew, when defending the incredibly unpopular VietNam war, spoke often of the "silent majority". Of course, there was no such silent majority, by the time he and Nixon reached office just about everyone wanted out of the war.
He never finished his Vice Presidency and went to prison for tax evasion, much like Al Capone. He had been charged with of extortion, tax fraud, bribery and conspiracy (see wikipedia link).
Why not just quote Agnew in your sig?
Free Martian Whores!
And why would you leave your laptop in your truck while going into the store?
Better yet, why would you blame the store for the result of your lack of common sense?
The cesspool just got a check and balance.
How do you know the work was created in the US and not in Tuvalu where there is no copyright law
Especially if the site was on a dot TV domain, which ostensibly belongs to Tuvalu.
All BSD licensed work is copyrighted, for example, but you are free to make copies from now until the day you die.
Til I die? I'm an undead, you insensitive clod!
--Joe
Veto time, WE the people need to stand up to these large corperations, let them know that they will be the ones to loose if they continue to battle the people.
If people would get together and say refuse to buy anything on Tuesday or Wednessday. This would show the message to the media freaks that we are in charge, while not really having any other effects. If they still don't get the message, then we can extend it an additional day of the week. Their over priced lawyers need to be drawn and quartered, they get more than the artists they rape and pillage.
Pay the artists directly, if they do not offer their own realistic fees for music, stop buying it. We can always go back to ripping MP3s of radio, there was no problems when I was a kid and making mixed tapes that way. No lawyer threatning to sue, no big wig crying about lost income.
Okay, under the copyright law, everything is copyrighted by default; unless something has sent it to the public domain (age, author release, etc.). Registering a copyright just gives the copyright holder the ability to sue for damages (verses just an injunction). So, every song downloaded is copyrighted. So, I have a hard time accepting the innocent infringement when the individual actively downloads music.
According to the [Copyright Law], the only scenario she might exercise is that "[she] consciously and intentionally copies from the plaintiff's work, with a good faith belief that the conduct is not infringing." And IF she proves this, then the court may "reduce statutory damages below the minimum of $750 to as low as $200." The RIAA was asking for $200 per song anyway.
If you read the rest of the link, then to pull of Innocent Infringement, she has to prove good faith and a reasonable belief the works were not copyrighted. What's reasonable is what a jury can agree to, essentially. So, if you found 12 random people on and asked if it was okay to download known music for free.
[Copyright Law]: http://itlaw.wikia.com/wiki/Innocent_infringement
What those who want activist courts fear is rule by the people.
The person doesn't have to know that the material is "not copyrighted" so much as the person has to know that their actions are against the interest and intent of the copyright holder.
For instance I could record a track of music, put it on my web page with a message "please share this with your friends", and subsequent distribution would not be infringement of my copyright.
And even so, if my record label put out a CD of my work with the same song on it and someone ripped that track and started passing _it_ around things would get tricky.
In both cases there is a copyrighted work, and in both cases there is copying, but there is no _obvious_ way to know if a given file is from the free-to-share or the infringing origin.
Now for any track where the person has no knowledge of either origin, or indeed no knowledge of any origin what so ever, there is still copyright. If that file is being massively shared with the public there really isn't any reason for an uninformed person to presume their action of copying would be improper.
And while there is a lot of infringing work out there, given the scarcity of record contracts, the commonality of stupid marketing gags, the ubiquity of public domain and free-to-share works by independent artists, and the near universal ignorance of the general public to issues like this; well innocent infringement is likely the norm.
At this very moment vivo is "giving away" near-first quality streams of major artists. Their service, via youtube deliberately and directly copies those music videos to my hard disk. It is _trivial_ for me to retain those copies were I to so chose. Are those copies then legal or illegal? What if they are landing on my network server by simple dint of the fact that I have several diskless workstations? What of the copy that ends up in the "wastebasket" (undelete folder)? Since they force-fed me the copy, literally gave it to me with no clear licensing terms, what are my rights? what are my responsibilities? What of my dumb-ass peers who find this stuff accumulating somewhere with no idea of provenance?
The basic fact is that the "content producers" (not even the artists) and their lawyers are trying to present this fantasy of a black-and-white world where everything is black by default and data simply cannot move unless someone exercises deliberate and knowledgeable positive action.
As an exemplar aside: Right now, do you think you _know_ what is in your browser cache? Are you sure there isn't kiddie porn, or at least highly questionable porn? You probably think you do. The state will hold you responsible for it if they find it. But given the near certainty that you have fallen into egregious and disgusting sites of deviant content purely by accident. It's also sure as death that that site put a lot of stuff in your browser cache that you have no idea about what so ever. That you never even saw to begin with because you would have had to click on a gallery link to have even seen it. And even if its all legal, and not embarrassing in the slightest, its all copyrighted and if you back up your computer you are infringing on that copyright with no knowledge of it what so ever.
Innocent infringement is the norm. It happens constantly. It would be exceptionally dangerous if the courts were to just declare that it was impossible per se.
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press