RIAA Foiled By "Innocent Infringement" Defense 220
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."
"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.
I'm not sure I buy it (Score:2, Interesting)
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 or has any small amount of knowledge about computers probably knows better.
Of course this never really stopped any of us from doing it. The price was free and most of us had little or no disposable income at the time. Now that I'm older and actually have money of my own I don't bother pirating music. There are plenty of places online where I can listen to it free of charge if I want and decide whether or not I'd like to buy it from iTunes, Amazon, or preferably from the band's website.
Interestingly enough, since I started getting music online, I've never purchased a CD from a store again. In fact the only CD's that I've purchased at all since high school have been from bands if I go to a concert and enjoyed it enough to buy at $10 CD. I can understand keeping physical media around for people who don't want to get their music digitally, but for as much as the RIAA has been fighting online distribution they may have been significantly more successful if there had been an iTunes-like service around when I was in high school that had a good selection at a fair price.
Most people will do the right thing if you give them to opportunity to do so, but if there's only one song off of a CD that a kid wanted, they weren't about to spend $15 on it.
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?
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.
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.
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.
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.
Re:"making available" (Score:1, Interesting)
RIAA investigators? In Texas? Didn't a Texas judge forbid the "RIAA investigators" from operating in Texas without a private investigator license? Did they finally get licensed in Texas or are they in violation of Texas state law and a court order?
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.
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.
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.....
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.
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.
Re:too late (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: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.
Confusion is understandable (Score:3, Interesting)
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.
8th amendment (Score:1, Interesting)
Granny is even more confused than you (Score:1, Interesting)
Ignoring your murder strawman, I find it strange that you start your post admitting that you yourself shouldn't be arguing about IP law with NYCL, and continue to assume that laymen much less concerned with this subject would be able to discern whether they are in violation in many cases, your example being the use of P2P software.
If you would download a book by a US author published in the US between the years 1923-1951 [upenn.edu], I daresay that even you wouldn't know if you were in violation or not. I know that I wouldn't (and expecting me to pay $150/hr to find out is not reasonable in my eyes).