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RIAA Foiled By "Innocent Infringement" Defense 220

Posted by timothy
from the country-lawyer-my-butt dept.
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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RIAA Foiled By "Innocent Infringement" Defense

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  • Under age (Score:4, Informative)

    by Anonymous Coward on Saturday August 09, 2008 @05:15PM (#24539797)

    A person under 18 cannot sue or be sued, without a hell of a bunch of oppostion.
    We seem to forget that.

  • by pembo13 (770295) on Saturday August 09, 2008 @05:16PM (#24539807) Homepage
    If that is the value, why are they taking such a loss on the sale?
  • With the riaa being able to claim actual damages for each song that got provably copied between two people that did not have an existing prior relationship (because then their regular levies apply). That's a pretty tall hurdle.

    Anything less than that and the consequences will be more than you could possibly imagine.

  • "making available" (Score:5, Interesting)

    by l2718 (514756) on Saturday August 09, 2008 @05:19PM (#24539829)

    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.

    • 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.

      And when the defense brings up Atlantic v. Howell, we can hope that even the 'making available' bit goes away.

      • 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

        • Re:too late (Score:4, Interesting)

          by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Saturday August 09, 2008 @05:57PM (#24540059) Homepage Journal

          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.

          • Re: (Score:3, Funny)

            by rts008 (812749)

            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)

              by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Saturday August 09, 2008 @06:24PM (#24540245) Homepage Journal

              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.

              • by rts008 (812749)

                When the judge figures it out, can he/she do anything about it? (obviously IANAL, armchair or real!)

                • Re:too late (Score:5, Interesting)

                  by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Saturday August 09, 2008 @07:04PM (#24540547) Homepage Journal

                  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.

                  • by rts008 (812749)

                    Ahh...I see where this could get tricky.

                    Thanks for the reply.

                  • Re: (Score:3, Interesting)

                    by Andy_R (114137)

                    "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.

    • by Tim C (15259)

      Oddly the lawyer didn't argue that downloading by the RIAA can't be infringement by definition.

      Well the girl wasn't authorised to distribute the songs, so surely it doesn't matter who she distributed them to?

      • Re: (Score:3, Insightful)

        by gnasher719 (869701)

        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 :-)

      • How isn't it important? In the physical world, if you burn a CD and give it to the bands that made the CD it isn't infringement, as long as you legally bough the CD. And the RIAA isn't suing for downloading.
  • by Channard (693317) on Saturday August 09, 2008 @05:29PM (#24539873) Journal
    .. because, leaving aside all the RIAA's bullshit for a minute, I've had a couple of people in my store who thought they could legally download music. Most people just go.. 'yeah, everyone does it..' - but these people bought Kazaa or Audiogalaxy or something for thirty quid and thought that gave them the right down to download music for free. They seemed genuinely surprised when I explained it.
    • Sure, easy to see (Score:5, Insightful)

      by Sycraft-fu (314770) on Saturday August 09, 2008 @05:56PM (#24540049)

      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.

      • Re:Sure, easy to see (Score:5, Interesting)

        by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Saturday August 09, 2008 @06:02PM (#24540087) Homepage Journal

        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.

        • by syousef (465911)

          I know who you are, have respect for you, and realize that I'm out of my depth arguing legalities with you, but I have to ask, how do you consider download software (or a cable descrambler) different to any other tool? I can buy a steak knife and legally use it to cut up my meat but if I use it to kill someone I can hardly argue that I thought I had the right to do so because I bought it legally.

          The descrambler may be a special case - it has only one use. However download software certainly can be used to d

      • Re:Sure, easy to see (Score:4, Interesting)

        by Belial6 (794905) on Saturday August 09, 2008 @06:45PM (#24540409)
        Sure, 'legitimate' businesses are constantly telling people that not only can they get things for very cheap, but that they can get things for "Free". How many offers have you received for a product that said it was "Free". Sure, there is always a catch that leads you to pay money. For example "buy one, get one FREE!". But, the companies that offer things like this, know that most people don't understand money well enough to understand that the object isn't really free. So, if you can get a "Free" cell phone, and "Free" groceries, and "Free" HBO, why wouldn't people think that they can get "Free" music.

        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.
      • 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.

        ...

        So it is quite easy to see how someone might download music and perfectly well believe they were not breaking the law.

        Even when you don't pay for something, there are many situations in our society where it is legal. I don't have to pay to watch the sun set from my porch, or to listen to a song on the radio. Maybe the defendant thought KaZaa was the Internet equivalent of radio.

      • by syousef (465911)

        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

        Huh? You can buy a steak knife or a chain saw. They have legal and legitimate uses. However if I use to tool to commit murder I shouldn't be surprised when I'm arrested and if I tried to defend myself on the basis that "I bought it legally so anything I do with it should be legal" I'd be seeing a shrink.

        Download software is just another tool.

        • by sjames (1099)

          Yes, but if you use most things for the purpose they were obviously sold to do, you're OK.

          For example, you can reasonably expect not to be charged a "steak cutting fee" when you cut a steak with the steak knife you bought.

          You can, in fact, buy a TV and watch various shows and movies for free (except in the UK).

          You can buy a radio and listen to music for free (if you can find any). You can also record that music from the radio and nobody will take you to court for it.

          Of course, most people do understand that

    • Exactly. Just like if I buy pirated software, more often not I am treated as some kind of victim (now, not sure how I would be a victim because I got working software at a decent price, but now the makers want to take that away...)
  • $200 a song.. (Score:2, Insightful)

    by Anonymous Coward

    $200 dollars a song is still eff'in outrageous I can't fathom how they're allowed to charge hundreds of times more than retail price. The guy could walk up to a BMW, bash the windows in and pay less.

  • by Anonymous Coward

    When I was 16 and downloading music from napster, kazaa, or whatever other service was hot at the moment I knew that it was illegal. If I'd have ever been caught and brought to trial (although unlikely as they hadn't started using such intimidation tactics yet.) I would have probably claimed the exact same thing.

    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

    • Re: (Score:3, Insightful)

      by gnasher719 (869701)

      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.

  • by Nymz (905908) on Saturday August 09, 2008 @05:40PM (#24539941) Journal
    Innocent Infringement is an exception made for people that deal with media, like schools, libraries, radio, and tv. If someone acts in accordance with the law, every day, then we aren't going to consider them a criminal because of a single accident. Someone doing nothing but copyright infringement, doesn't qualify under the innocent infringement exception, but is instead ignorant of the law. Whether copyright law is just, or needs updating for the 21st century is another matter.
    • by kaos07 (1113443)
      No, this isn't an "Ignorance of the law" argument. Well that really isn't an argument anyway, I don't think their lawyer would be dumb enough to run it. The thing with copyright is that it's only a "infringement" if the item is indeed under copyright and it's labelled as such. If it isn't labelled how is the person to know whether or not it's under copyright? This is what is being argued here. The defendant saying "It was innocent infringement because whilst I accept downloading the songs I didn't know they
      • The thing with copyright is that it's only a "infringement" if the item is indeed under copyright and it's labelled as such.

        The 'Notice of Copyright' requirement was eliminated in 1989. (sarcasm on) I guess you weren't ignorant of this fact, but simply innocent of it. (sarcasm off)

        • by kaos07 (1113443)
          Then what the hell is the defence argument based on?
          • by praksys (246544)

            Some uses of copyrighted works are illegal,unless you have permission, some uses are legal, even without permission (fair use etc). Ignorance about which uses are legal is ignorance about the law, and ignorance of the law is not an acceptable defense.

            Some songs are copyrighted, some are not. Ignorance about whether a song is copyrighted is ignorance about a matter of fact, and ignorance of fact is often an acceptable defense, or at least a mitigating circumstance.

          • The Big Picture (Score:3, Insightful)

            by Nymz (905908)
            Answering your question requires understanding of 'The Small Picture', which can only be understood in relation to 'The Big Picture'.

            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
            • by kaos07 (1113443)

              Righto, thanks.

              Moral of the story: Copyright law in the US is fucked.

            • 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 create a new copyright paradigm, that most of us will agree to honor, then we will have lots of legal battles.

              Well, I'd say that's nearly right. To be mo

        • by Darundal (891860)
          And rightfully so, I might add. For anyone who is wondering why, just google Night of the Living Dead.
          • No, I disagree. I'm aware of what happened with Night of the Living Dead, and Charade, and several other works. But the notice requirement is important, and does need to be revived.

  • by d_jedi (773213) on Saturday August 09, 2008 @05:40PM (#24539949)

    IANAA (not an American :->) and IANAL, so I don't know what this concept is.

    • Re: (Score:2, Informative)

      by Fumus (1258966)
      JFGI.

      Copyright infringement is the violation of any exclusive right held by the copyright owner. Infringement may be intentional or unintentional. Often called "innocent infringement," unintentional infringement occurs when an author creates an ostensibly new work that later proves to be a mere reproduction of an existing work, though the author was unaware of the identity between the two at the time the copy was made. For example, former Beatle musician George Harrison was guilty of innocent infringement when he released the song "My Sweet Lord," which a court found was the same song as the Chiffons' "He's So Fine," only with different words. The court said that Harrison had "subconsciously" borrowed the Chiffons' unique motif.

    • by Kjella (173770)

      If you are or should be aware that you're infringing copyright it's 750-150000$ per work, if you're not it's 200-30000$. Since it's a liability issue, the reasoning is that even if you weren't aware you were breaking any copyright, the copyright holder has still suffered damage and must be compensated. Of course, since they cost 99 cents at iTunes any such logic is out the window.

  • by whoever57 (658626) on Saturday August 09, 2008 @05:46PM (#24539979) Journal

    including without limitation by using the internet or any online media distribution system to reproduce (i.e., download) any of Plaintiffs' Recordings,

    This looks like an injunction against the use of iTMS or any other online music store. Am I reading this correctly?

  • by Anonymous Coward

    It seems inflation has taken a huge toll in media prices in USA. You can buy a whole cd here for $10, usually with 20-40 songs. That means you pay around 50 cents per song. If the song price is $200 in USA, I don't wonder you guys prefer to pirate, with CD prices probably being around $4000 USD.

  • by syousef (465911) on Saturday August 09, 2008 @07:15PM (#24540629) Journal

    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.

  • only you could call $750 to $200 per song "foiled". nothing like spinning.

    • Slashdot gives me very little space in which to put the headline. How would you have put it in the same amount of space?

      By the way, I think the RIAA feels 'foiled'... the last thing they want to do is now start preparing for a trial, in San Antonio, Texas, of the issue of whether this sweet young lady was a deliberate copyright infringer. (1) It will cost the plaintiffs at least $50,000, maybe even more, the way their lawyers bill. (2) They will lose. (3) They will look like total idiots.
      • Oh, and the next to last thing they want to do is accept $200 per song file, and in so doing be deemed to have acquiesced in a reduction of their nationwide $750 per song file theory, which has informed every one of their 40,000 or so cases. So I guess you could say they're between a rock and a hard place.
    • by Khaed (544779)

      I'd say $550 difference per song is "foiled." Yeah, $200 is still outrageous. But it's less than a third of what they wanted.

  • Foiled Again!

  • by Bones3D_mac (324952) on Saturday August 09, 2008 @11:17PM (#24542327)

    When the music industry decided not to embrace online distribution of their content right away, they inadvertently left the door open for people to become convinced that the ability to download music for free was simply another function of the internet as common as browsing the web. Unfortunately, this has led to a generation of internet users were such activity is seen as nothing unusual enough to question whether or not it's even legal.

    To these people, the concept of paying to download music isn't much different from how many of us view subscription-based websites as a waste compared to the abundance of other websites containing the same exact information for free.

    To further complicate matters, many who download music through file sharing on a regular basis often become confused when told that obtaining music in this manner isn't necessarily legal, as it conflicts with their personal experience and the fact that the "illegal" files are still regularly available on these services. They regard this fact as proof their not in violation of any laws because no one has forced these files to be removed or forced the service to shut down... while completely unaware of the dynamic nature of these services that prevents any actual enforcement due to the lack of a centralized server in a tangible location.

    To them, it's exactly like any other internet service, connecting to a specific machine somewhere else.

    The real question these **AA groups need to ask is how to educate these people about the issues involved and allow them a chance to change their activities rather than immediately pulling them into life-destroying lawsuits.

We don't know one millionth of one percent about anything.

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