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Comments: 220 +- Your Rights Online: RIAA Foiled By "Innocent Infringement" Defense on Saturday August 09 2008, @04:09PM
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NewYorkCountryLawyer writes "In an interesting development in a Texas case against a college-age defendant who was 16 at the time of the infringement, the Judge has denied the RIAA's summary judgment motion and ordered a trial of the damages — even though the defendant admitted copyright infringement using Kazaa — based on the 'innocent infringement' defense, which could reduce the statutory damages to $200 per song file. Relying on BMG v. Gonzalez (PDF), the reasoning of which I have criticized on the 'innocent infringement' issue, the RIAA argued that Ms. Harper does not qualify for the 'innocent infringement' defense, since CD versions of the songs, sold in stores, have copyright notices on them. In its 15-page decision (PDF) the Harper court rejected that contention, holding that 'a question
remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting,' since 'In this case, there were no compact discs with warnings.' Finding that there was a factual issue as to what the defendant knew or didn't know at the time of the infringement, the Court ordered a trial of the damages unless the RIAA agrees to accept $200 — rather than the $750-plus it seeks — per infringed song."
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Under age (Score:4, Informative)
A person under 18 cannot sue or be sued, without a hell of a bunch of oppostion.
We seem to forget that.
Re:Under age (Score:5, Insightful)
The RIAA has never cared about opposition. What are you going to do, continue to not buy CDs from them? Even if they were to announce that for every song stolen, they would kill a puppy in a country where there are no animal cruelty laws, they would still keep doing brisk buisness: the teenagers buying mainstream CDs at walmart don't care about things like that.
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Go away, you're not 21 (Score:3, Insightful)
If you want to support the artist, go to their concerts
Unless your favorite artist won't play at any all-ages venues near you.
Re:Go away, you're not 21 (Score:4, Funny)
Unless your favorite artist won't play at any all-ages venues near you.
Simple solution to that problem, grow up.
/.
I was going to have some terrible meandering reply about trying to pick up girls/guys their own age, but this is
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Bands don't exist forever (Score:3, Funny)
Simple solution to that problem, grow up.
Bands tend to break up or have their lead singer die during the time it takes for that to happen.
Re:Bands don't exist forever (Score:4, Funny)
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Re:Bands don't exist forever (Score:4, Funny)
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Re:Go away, you're not 21 (Score:5, Funny)
You can't figure out how to get into a rock concert if you're slightly underaged?
Kids today have no imagination whatsoever.
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Re: (Score:3, Informative)
I have honestly refused to buy a cd since all this shit started.
I hope you mean that you've refused to buy any CD published by a label represented by the RIAA [riaa.org]. Otherwise it'd just be stupid.
Re: (Score:3, Funny)
Wait, you mean my boycott of blank CD-RWs is stupid?
Damn it, here I am backing up all my media to floppies for nothing...
Re:Under age (Score:4, Informative)
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Why don't they sell songs at $200 a pop? (Score:5, Insightful)
Re:Why don't they sell songs at $200 a pop? (Score:5, Insightful)
So they can inflate the piracy numbers. If they sell it at $0.99 they'll be able to claim the other $749.01 as piracy damages. Also known as creative accounting or fraud.
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Re:Why don't they sell songs at $200 a pop? (Score:5, Insightful)
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Re:Why don't they sell songs at $200 a pop? (Score:5, Insightful)
A penalty is fine, but a 2000% penalty? The percentages aren't that high on anything else...
But, but but this is electronic media! It involves computers and intarwebs and a series of tubes and electrons and stuff, you're supposed to abandon all logic and common sense and instantly enter into Dummy Mode whenever that's the case! Certainly you can't use critical thinking and compare it to the penalties you'd face when dealing with anything else! Why, that might amount to treating IP as though it were like tangible property! Oh, wait...
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indeed, punitive damages can't be (Score:5, Informative)
The Supreme Court has held that punitive damages can virtually never exceed a 10:1 ratio of actual damages. Whether that ruling would extend to statutory damages has never been tested, but it's possible it might. Certainly the RIAA would not want to argue that the purpose of statutory damages is to be punitive, if it wishes to avoid such an extension.
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Re:Why don't they sell songs at $200 a pop? (Score:4, Insightful)
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"making available" (Score:5, Interesting)
It seems comments don't carry over from the firehose posting?
In any case, in addition to the (partial) win on the damages, the girl lost an argument with much wider implications. Her laywer tried to argue that only for the files the RIAA's investigator actually downloaded was there actual evidence for infringement (these were 6 among 39 song she's being sued over). Oddly the lawyer didn't argue that downloading by the RIAA can't be infringement by definition. The court instead agreed with the RIAA that merely making a file available was sufficient to establish infringement. This will now give the RIAA further ammunition when the continue using the argument.
Re:too late (Score:4, Interesting)
And when the defense brings up Atlantic v. Howell, we can hope that even the 'making available' bit goes away.
It's too late for the defense to raise new sources: the court has already ruled on this dispute. If they wanted to cite Atlantic v. Howell they should have done it already. Now the judge says that since it was agreed that files were "made available", infringement has already been established and all that remains is to decide on the damages. This is really serious -- the problem is the reverse of what you claim. Now whenever a defendants will cite Atlantic v. Howell, the RIAA will cite Maverick v. Harper in return.
I don't think it's as serious as all that. But I can't go into detail, wouldn't want to tip my hand. The RIAA is not celebrating this decision; believe me.
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Re: (Score:3, Funny)
Well, when you do tip your hand I hope that the RIAA feels properly violated in a most uncomfortable fashion.
With your history here, I expect you will share the joy with us.
Keep fighting the good fight for us Ray, your efforts leave me all warm and fuzzy inside! :)
Re:too late (Score:4, Interesting)
Well, when you do tip your hand I hope that the RIAA feels properly violated in a most uncomfortable fashion. With your history here, I expect you will share the joy with us. Keep fighting the good fight for us Ray, your efforts leave me all warm and fuzzy inside! :)
I have a hunch the RIAA's going to take their $200 and run. They don't want to be around when this judge figures out he's been sold a bill of goods.
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Re:too late (Score:5, Interesting)
When the judge figures it out, can he/she do anything about it?
Yes.
The real question is whether the judge will find out about it. If the case gets closed out now, he may never find out about it. If the case goes to trial, he likely will find out about it.
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Re: (Score:3, Interesting)
"The real question is whether the judge will find out about it."
Ok, stupidly obvious question here, but I suspect the reply might give some interesting insight into the US legal system...
Why doesn't someone simply tell the judge about it?
Re: (Score:3, Informative)
Why doesn't someone simply tell the judge about it?
Defendant is represented by counsel. I'm sure her counsel will tell the judge about it, if it comes up. If the RIAA takes the judge's offer, though, it might not come up.
Re: (Score:3, Insightful)
Well the girl wasn't authorised to distribute the songs, so surely it doesn't matter who she distributed them to?
Well, if the copyright holder himself asks you for a copy, or an authorised agent of the copyright holder, then it surely is authorised.
:-)
If Bill Gates' laptop crashes and he needs a new copy of the OS, you can give him your copy to install it. That is as long as he uses Linux or Windows, not if its MacOS X
Innocent? It could happen... (Score:5, Insightful)
Sure, easy to see (Score:5, Insightful)
I mean most people think, and correctly so in most cases, that if you pay for something, that means it is legal for you to use/have it. Whatever the seller wishes to charge is their business. If you pay what they asked, then the deal is done. If they want to give you a good deal, that's up to them and there is, as they say on the playground "No take backs." If the seller realizes after the sale they sold it for less then they wanted to, too bad.
So it is easy to see how people, especially those who are up on technical news, could be fooled. I remember getting a call from my mom about buying the Adobe Creative Suite. She was searching online to see if she could get a better price, since it is very expensive. Well, she found a place that indeed had a MUCH better price. Now she's pretty clever and realized that it sounded too good. Well, sure as shit, the site was selling pirated software. However, it is easy to see how someone might be fooled. After all, I've got some smoking deals on all kinds of products in a quite legitimate manner. People might figure this is just the same thing.
So it is quite easy to see how someone might download music and perfectly well believe they were not breaking the law.
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Re:Sure, easy to see (Score:5, Interesting)
I mean most people think, and correctly so in most cases, that if you pay for something, that means it is legal for you to use/have it.
That is so true. I remember a 'cable descrambler' case that occurred about 10 years ago. A guy bought this thing in a big chain electronics store; it was the featured item on display in the front of the store; it cost a small fortune, about 2 or 3 times what a VCR cost at the time; he assumed there was some kind of license fee built into it.
Apparently, there wasn't.
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Re:Sure, easy to see (Score:4, Interesting)
In fact, companies like Coke, Pepsi, and AOL have spent millions advertising that you can get "Free" music, and it is not uncommon for bands to actually host tracks online that really are free (not just called free). It is perfectly reasonable for people to think that downloading music is legal.
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Innocence vs Ignorance (Score:5, Informative)
The Big Picture (Score:3, Insightful)
The Big Picture:
The idea of copyright is a societal agreement with creators, as a fair method to pay them for contributing to society. Over time, our environment has changed, and the old copyright paradigm is an ill fit for today, and so great is the ill-fitting-ness that a large section of society chooses to ignore it to some extent. Until such a day that we as a society
What is "innocent infringement"? (Score:5, Interesting)
IANAA (not an American :->) and IANAL, so I don't know what this concept is.
She can't make legal downloads now? (Score:4, Interesting)
This looks like an injunction against the use of iTMS or any other online music store. Am I reading this correctly?
RIAA foiled? Hardly! (Score:5, Funny)
The difference between $200/song and $750/song goes something like this.
RIAA: She knew what she was doing.
Ms Harper: No I didn't. I was 16 and everyone was doing it.
Judge: Okay, I'll accept that. You'll have to take her house, her parent's house and her car as damages, but she can keep the shirt on her back.
RIAA: But your honour, it's a lovely purple coloured silk shirt, and she really did know what she was doing.
Judge: No. She can keep her shirt. Let that be a lesson to you RIAA.
This at least has a basis (Score:5, Informative)
it's punitive, and can be reasonable -it is meant to be a deterrent-- it is reasonable to make the financial recompse for a crime more than what the thing is worth at retail
if you shoplift, many state laws allow the store to require recompensation in
excess of the item stolen, this to repay the costs of having the security that the thieves make necassary.
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Re:This at least has a basis (Score:5, Insightful)
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Re:This at least has a basis (Score:4, Interesting)
The question is not whether there should be punishment, the question is whether the punishment fits the crime. $200 a song is outrageous (let alone the $750 normally fined). There is a huge difference between punishment and enslavement. This person would have to work forever to pay off this debt. That hardly fits the crime. Make him pay 2, 3, 4 or even 6 times the cost of the song and that would be punishment enough... but 200 times?!? That is unconscionable. The RIAA needs to be taken down a few notches and SHAME on the courts for allowing them to run their racket as long as they have.
I agree, decoy. Hopefully, though, the judges are starting to get wise to the fraud that has been put over on them.
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well now.... (Score:4, Interesting)
200 times might be pretty severe, but $200 as a minimum amount is not.
Let's put it this way.
for one song- what do you expect would be the minimum legal costs to the RIAA to track you down?
a lawyer, writing a subpeona, filing it, and contacting the ISP, and contacting the individual.
that would be a reasonable minimum per user who is downloading songs.
this has nothing to do with RIAA tactics vs. B&M stores-- it's about allowing a reasonable recovery of costs..
so lets say- 1500 -2500 (we are talking about a national search, not limited to the interior of one store) for cost recovery- not per song-- but per person/IP tracked down.
Remember- they are using lawyers, not LP (loss prevention) security guard types--
then we tack on damages as well.
what do you estimate the RIAA's damages for one song to be?
at some point, you have to acknowledge that breaking the law has consequences, and people who own property are entitled to recovery of costs in protecting their property.
I haven't had a run in with the **AA's I have had experience with youthful offender civil crimes.. personal experience and knowledge of the experience of others.
and a little shoplifting can easily cost a few grand.....
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Re: (Score:3, Informative)
Re:This at least has a basis (Score:5, Insightful)
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Re: (Score:3, Insightful)
Re:This at least has a basis (Score:4, Informative)
The 8th ammendment also only applies criminal cases. If the RIAA is suing, then it isn't a criminal case. If it IS a criminal case, then the RIAA doesn't get to set the penalty, so stop blaming the RIAA.
Where did you go to law school?
The 8th amendment applies to government actions. Here, the government action is in establishing the law that permits the RIAA to obtain punitive damages 200 times in excess of any actual damages. If there was no such law, the RIAA would have to prove the justification for punitive damages in every case. But the RIAA paid off a few congressmen and got this sweatheart deal passed through.
The government established a law and that governmental action must be scrutinized under the Constitutional limitations put on Congress, in this case the 8th amendment.
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Re: (Score:3, Informative)
Please tell me where I made a factual mistake. The 8th ammendment applies to criminal cases, period.
The 8th amendment has not been applied only to criminal cases. In Austin v. United States, 509 U.S. 602 (1993), the Court noted that the application of the excessive fines clause to civil forfeiture did not depend on whether it was a civil or criminal procedure, but rather on whether the forfeiture could be seen as punishment.
In addition, punitive damages are established by the state either through case law or legislation, so regardless of how it is used in civil cases by private parties, it still originat
the Supreme Court has ruled a number of times (Score:5, Informative)
There is a significant body of Supreme Court jurisprudence invoking the Due Process Clause to limit punitive damage awards in civil cases. The most recent significant decision was 2003's State Farm v. Campbell, which gave a strong presumption to the unconstitutionality of multipliers greater than single digits, and summarized some of the past decisions. To quote from the majority opinion in that case [cornell.edu]:
"We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. In Haslip, in upholding a punitive damages award, we concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. We cited that 4-to-1 ratio again in Gore. The Court further referenced a long legislative history, dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish. While these ratios are not binding, they are instructive. They demonstrate what should be obvious: Single-digit multipliers are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution, than awards with ratios in range of 500 to 1, or, in this case, of 145 to 1."
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Re:I still don't understand (Score:5, Insightful)
It's not the government using it's power to prop up a failed buisness model. This is the RIAA using the legal system to try to prop up their diminishing buisness by bullying people who share music.
There are certainly some people in government who are sympathetic to the RIAA because of legal bribes in the form of lobbyists and campaign contributions, but that's not the whole government and in this instance, the biggest government involvement is that the legal system is being used by the RIAA.
What you're talking about would be if the government subsidized the RIAA's DRM attempts or things like that. Maybe they do that already, I don't know, but this isn't that.
Anyway, as to why it's so much, it's because sharing music is actually illegal (note that I am not saying it should be or that the RIAA has morality on their side or their tactics are justified, or even that they shouldn't all be shot). It's like asking why tickets for possession of pot are so high. You're not causing any damage to anyone, the fines don't make sense in that reguard.
The only answer is because it's illegal and in many cases, some people have interests in seeing the law enforced even when there's no real benefit to society in it. They fine you for posession because it's illegal, they don't think they like pot smokers, and they can.
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Re:I still don't understand (Score:5, Interesting)
The perception occurs because anytime the RIAA/MPAA asks for tougher, more punitive copyright laws, they get what they ask for with little or no opposition. I doubt very strongly that any of the Congresscritters who pass such laws are under the illusion that the RIAA/MPAA have no intention of using them. So, directly like what you describe or indirectly, the government has been their best friend for some time now when it comes to delaying the inevitable. The inevitable, of course, is that eventually there will be little or no need for a middleman like the record companies to control distribution, at which point the RIAA/MPAA's current business model is fully obsolete. What will replace it? I could speculate but I don't really know. I do know that I'd like to find out; I honestly believe that the finest music in the world isn't worth the corruption and the intimidation and the persecution that the *AAs have perpetrated in the name of their financial interests.
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Re:I still don't understand (Score:5, Insightful)
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Re:I still don't understand (Score:4, Interesting)
That's absurd. Any business that relies on free road transport--which is a massive subsidy from the government--is by your definition following a failed model. So is any business that depends on its workers having received public education, rather than teaching them to read and count itself. Just about every business benefits from something it doesn't have to produce itself, from free fire protection to law enforcement to low-priced electricity. The only meaningful policy questions are which subsidies/price structures are good ones.
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Re:You're not a good writer. (Score:4, Interesting)
let me try again, sorry, it's late and I'm tired :)
The RIAA is claiming far more then the actual damage for copying a single song (this has happened many times), imagine the owner of a car being able to claim damages 10 fold or 100 fold to the value of the item stolen or damaged.
Then there's the fact they seem to be able to do so on the *possibility* of infringement, without being held to any substantial burden of proof that an infringement actually took place.
I can't even come up with a good real world analogy to that, but it's clearly bogus.
The only way I can see this end is when the RIAA or whatever agency is the one to go after infringement is able to prove conclusively:
"That two people that have not had prior contact infringed" (otherwise it's covered under various blank media levies)
Technically that's a pretty tall hurdle to cross (it can really only be proven by knowing a lot about the parties and by sniffing the traffic), if they get away with establishing a lesser standard then all kinds of parties with claims as superficial as the RIAA's will suddenly think they have a case and may be able to use the RIAA's cases as precedent.
Better now ?
j.
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Re: (Score:3, Insightful)
Of course it's possible that if someone doesn't have a decent understanding of how the software works, it's plausible that a person could honestly be ignorant, but for anyone who frequents slashdot or has any small amount of knowledge about computers probably knows better.
I have seen advertisements for software that really did sound as if you could download millions of songs legally (that's what it advertised: Download millions of songs legally). Maybe a lawyer with a very suspicious mind would have figured it out just by reading the advert, I figured it out because I _know_ there are no millions of songs that you can get legally and for free and therefore knew what words to look for in the advert, but to anyone who doesn't know about that subject it looked totally genuine.