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"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."
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
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.
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
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.
Are there sufficient legal issues here for the Court to even take up the case?
Yes there is a huge issue here. Whether the defense of "innocent infringement" is unavailable, merely because somewhere there is a copy -- which the defendant has never seen much less copied from -- that does contain a copyright notice. The appeals court's decision is ludicrous, and clearly contradicted by the statute itself, and yet it is not the first but the second appeals court to have reached that conclusion. It is vitally important that the Supreme Court remind the courts of what the statute is about.
Ray Beckerman +5 Insightful
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.
Retail theft is a crime nolle nonspartis, which means "without notice (required)", so theft is theft whether or not you were put on notice. If you know it is not your property and take it, you have committed theft.
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. If you didn't know and intend to infringe, you have not committed the crime (though you may be liable for significantly reduced damages, so you don't get off scot free)
You have no clue what you're talking about, throwing out nonsensical Latin jargon. Nolle is an actual Latin word meaning "to not be willing," I'll give you that -- but "nonspartis" is nonsense, and so is "willeus" and "tenspartum." Nolle prosequi is a Latin legal term meaning "to not be willing to prosecute" (literally) -- where someone will not pursue further legal action on a case. IANAL, however. You should have saved everyone the trouble and not posted, given that you are clearly no lawyer, either.
The person has to really not know that it's copyrighted, to qualify for the defense. But even if he or she doesn't know, he or she will be precluded if the one they copied had a copyright notice on it.
These judges went further, and said she's precluded because somewhere, in some store somewhere, there's a copy with a copyright notice on it. I.e., they basically ruled that there is no "innocent infringement" defense, which is ridiculous, and contrary to the plain wording of the statute.
Ray Beckerman +5 Insightful
The RIAA can lick my scrotus humungous.
Random Thoughts From A Diseased Mind (Not For Dummies)
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".
Copyrighted and illegal to download are two different things, or more specifically copyrighted + illegal to download doesn't apply to all copyrighted songs. Independent artists and even some major artists release songs for free all the time.
The existence of a single free to download mainstream song renders the argument that 'all mainstream music is illegal to download' invalid, and there's plenty of songs on torrents that are actually legal to download and listen too.
There are two kinds of fool One says 'This is old therefore good' Another says 'This is new therefore better'- Dean Ing
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.
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 have never seen this crap you speak of. Must be removed by the nice people who give me movies and music and programs for free from the torrent thingee.
The RIAA can lick my scrotus humungous.
You may want to get that checked out.
"Never let your sense of morals prevent you from doing what is right" - Salvor Hardin
What are you talking about? Both phrases show up if you google them, and the results tell me they mean precisely what the AC said they mean!
> 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).