Appeals Court Knocks Out "Innocent Infringement" 232
Posted
by
Soulskill
from the innocent-infringement-has-a-glass-jaw dept.
from the innocent-infringement-has-a-glass-jaw dept.
NewYorkCountryLawyer writes "A 3-judge panel of the US Court of Appeals for the 5th Circuit has ruled that a Texas teenager was not entitled to invoke the innocent infringement defense in an RIAA file-sharing case where she had admittedly made unauthorized downloads of all of the 16 song files in question, and had not disputed that she had 'access' to the CD versions of the songs which bore copyright notices. The 11-page decision (PDF) handed down in Maverick Recording v. Harper seems to equate 'access' with the mere fact that CDs on sale in stores had copyright notices, and that she was free to go to such stores. In my opinion, however, that is not the type of access contemplated in the statute, as the reference to 'access' in the statute was intended to obviate the 'innocence' defense where the copy reproduced bore a copyright notice. The court also held that the 'making available' issue was irrelevant to the appeal, and that the constitutional argument as to excessiveness of damages had not been preserved for appeal."
Not really the point (Score:5, Insightful)
Whether she was innocently infringing or not isn't really the point because it's fairly obvious that no teenager on the planet who pirates music doesn't know that it's illegal.
The problem is that she's in court for downloading 16 songs. Randomly attacking people who will find it difficult to defend themselves legally isn't the right way to go about reducing piracy.
Re:Not really the point (Score:4, Insightful)
It's the statutory damages used to intimidate would-be pirates into not pirating. They make an example of someone who caused less that $16 dollars of damage to try to convince people to stop downloading. Not that that even directly nets any money, since many people (especially in a recession) pirate things because they're broke.
Also, keep in mind that the RIAA probably isn't even trying to get any money out of the defendant. What will happen is that the defendant will declare bankruptcy after getting a million dollar verdict or something slapped on them. If they RIAA actually wanted get money out of people, they would sue for reasonable amounts, or actually stop suing people and actually do something productive.
Re:Rape. (Score:5, Insightful)
So is "stealing" when applied to copying a CD.
Re:Not really the point (Score:5, Insightful)
I think it's possible for a teenager (or anyone) to not know that downloading music off LimeWire or other systems is not copyright infringement (or worse, 'illegal'), some examples:
1) You download an MP3 of a song that you purchased on CD because you need a digital copy for your portable music player and don't want (or know how) to rip the CD yourself. Copyright infringement? Illegal?
2) Some small artist has a new song that you download. Copyright infringement? Illegal? What if your just mistaken and confused this artist with another small artist that has released their music free on the Internet?
Of course, if said teenager was downloading a Britney Spears song then it is of course wrong, and they should be harshly punished. If they bought the Britney Spears CD then they should probably be executed.
Re:Not really the point (Score:3, Insightful)
I certainly don't believe that she was innocently infringing, but I see no reason why her lawyer wasn't allowed to make that argument and for the court to weigh the evidence.
Re:Rape. (Score:3, Insightful)
An argument _does_ exist that it is stealing... it's just that what one is stealing by doing so isn't what the copier actually cares about, and so doesn't even notice that they took it from the copyright holder.
Copyright is supposed to be an _EXCLUSIVE_ right to copy the work... (right to copy = copyright). Anybody else requires permission by virtue of that exclusivity. If somebody else does it without permission, they literally *DO* deprive the copyright holder of some measure of his or her exclusivity on their right to copy their work, since by definition, exclusive means that nobody else is supposed to be doing it.
As I said, however, somebody who is copying a CD likely isn't thinking about the exclusivity on the copyright they are depriving the copyright holder of, so it tends to go completely unnoticed.
Some might offer the counterpoint that you can't steal something intangible like "exclusivity", but really, how different is it from tangible materials if one can still actually deprive somebody else of it by their actions?
Whether or not such exclusivity on the right to copy is a good idea in the first place is another matter, although without it, copyright loses a lot of its value for most people.
Re:Not really the point (Score:3, Insightful)
It's P2P right? The downloaders are distributors.
And a 50% penalty is ridiculously small. You really think they catch more than 2 out of 3 such infringements? So that's really no penalty at all and you'd be an idiot to buy them upfront if they only cost 150% as much if you happen to get caught.
Re:What exactly are the ethics of the RIAA? (Score:4, Insightful)
Nope, the reason they don't go after the counterfeiters at flea markets is because that's not the "threat" to them...(how many people do you know that buy fake cds at flea markets)...kids downloading songs off bittorrent is. The price of legal downloads has very little to do with it...yes there are a few people out there that make choices of pirate vs buy based on price/value/etc, but for most, it's "free vs pay?" and free always wins. (yes, you can argue that YOU would just buy instead of pirate if it was just cheap enough, for whatever magical value of "cheap enough" you've defined, but if so you are either a minority or a liar)
So they go after kids who download, and shoot for as big a penalty as possible. Not because they themselves even believe that the penalty is correct, but because they are trying to scare other people away from downloading. If people think "wow, my life will be ruined if I get caught" then the RIAA believes just maybe less people will illegally download.
Now I'm not saying it's right, but it's at least reasonably logical.
Re:NewYorkLaywer gives another dishonest summary (Score:3, Insightful)
Re:Not really the point (Score:1, Insightful)
It really is. I say we publicly lynch the record company executives and the IP lawyers that do their bidding for them.
I'm not even kidding.
Re:Not really the point (Score:3, Insightful)
You are totally right, that there is no free music on the internet and that RIAA is representative for all musicians on the planet and should be the sole determinant of who is, and is not infringing.
Re:Not really the point (Score:5, Insightful)
I could get behind this theory if we applied it to other situations - for instance, if the penalty for running a giant bank into the ground so hard that the government had to spend $17 trillion dollars cleaning it up was, say, public execution. But instead what we get is a system that somehow only manages to hand out draconian punishments to the poor and (typically) non-white.
Steal a set of golf clubs and get three-striked? Jail for life.
Steal billions of shareholder dollars via mismanagement and outright fraud? Giant "severance package" and a cushy new job.
Something's just slightly fucked up there....
Re:Not really the point (Score:4, Insightful)
Well, the issues that instantly spring to mind are:
1) The costs of tracking someone down in order to connect a person with the observed infringing behavior, and then sending out the nasty letter, are likely to exceed 1/3 of the amount demanded (assuming that the other 2/3 are to make the copyright holder, etc. 'whole' for the infringing copy). Thus, they still lose money on the overall deal.
2) Because they can't observe every infringement, and can't successfully track down every infringer that they did observe, many, perhaps most, infringers will get away scot-free. This may encourage more people to infringe in the future, if they think that the money they save when they don't get caught will be greater than the money they would spend legitimately, or would lose if they did get caught. This having been said, enforcement efforts currently only deter people from going to court if they have been caught; the odds against being caught are low enough that they don't seem to deter anyone.
3) If there is another person who had their rights infringed, who isn't represented by the authors of the letter, they could still sue, using the infringer's acceptance of the settlement offer as evidence of infringement. Unless the infringers are protected from this in some way -- by the letter-writers offering to indemnify them for any other damages caused by the infringement at issue -- then the infringers aren't made safe. And the letter-writers are never going to willingly accept that kind of risk for such a low reward.
Re:Not really the point (Score:5, Insightful)
I was with you up until your solution for the 'distributors'.
These people are generally one and the same as the 'downloaders' with the vast majority of non-commercial copyright infringement.
If on the other hand you changed "big penalties" to, I dunno, 5x cost, maybe you'd have a solution worth talking about.
Of course however reasonable the penalties were - assuming the impossible were to happen and your solution was operational - the copyright cartels would lobby to make them higher and higher, and want more draconian laws enacted. It's the nature of copyright and the people who are in the business of making money through using it's monopoly to restrict distribution that they are draconian: the illusion of 'property' is a strong one and goes against the nature of the medium which is inherently copyable and distributable. They want strict property laws because they believe they own the copyrighted material in much the same way as they own their trousers or their TV, and that means that every infringement (lawful or otherwise) is viewed as intolerable - it violates their control.
They stand against your solution as vehemently as they would if you proposed the abolishment of copyright: it would diminish them as masters of their own 'property' and they could only see it as a defeat.
Re:Rape. (Score:3, Insightful)
Don't forget to mention that only people who have a weak case use inflamatory language to bolster their argument that viewed in the cold light of day would barely arouse any sympathy.
And that's why the copyright cartels will never submit to your proposed reasonableness.
Re:No bling for the sing bitches. (Score:3, Insightful)
> you should have to pay the consequences
The "consequences" should not be glorified sharia law.
We even have a bit of constitutional law here in the US of A to that effect.
Re:Not really the point (Score:3, Insightful)
Downloading music is illegal now? I live in the US and am aware of laws to stop the *distributing* of copyrighted works, but I have never seen any legal restrictions on downloading or possession. I am also under the impression that the MPAA/RIAA has never been able to show that an IP address is a person, and thus bound by the distribution laws.
The act of downloading to your computer is the creation of a copy of that work. Which is forbidden, unless you are authorized by the rightsholder to create said copy.
That said, the RIAA et. al. will never sue just over downloading. Because if you are caught having downloaded x number of illegal copies, you can definitively prove the amount of damages (x times cost per track), and as such can avoid those ludicrous "statutory damages" that are at the heart of the record industry's terror campaign.
As for the "IP address is not a person" issue - they're ignoring that one, and just claiming that the "owner" of the IP addresses (whoever it's assigned to at the time of the alleged infringement) is automagically liable for any damages resulting from the infringement. Which is, unfortunately, enough to get most people to roll over and pay the extortion money rather than risk the huge court costs of fighting them.
Re:Not really the point (Score:3, Insightful)
It's P2P right? The downloaders are distributors.
Which is why statutory damages come into play.
If it was possible to trace downloads back to their sources, the geek would be the first to scream for a statutory limit on damages.
There have been over 200 million downloads of LimeWire from CNET alone.
Re:Not really the point (Score:3, Insightful)
Actually, by my reading of the Audio Home Recording Act [wikipedia.org] is that, while uploading is illegal, downloading is completely legal as long as you burn it to an audio CD (a CD with royalties paid as part of its sale price). So an affirmative defense would be simply to produce such a piece of plastic and tell the RIAA lawyers to get bent.
But if you read the ruling, you'll see she was indeed caught uploading. Quoting from page 2 of the ruling: "MediaSentry fully downloaded six of the audio files from Harper’s 'shared folder'.”
Re:Not really the point (Score:5, Insightful)
"Intellectual" property isn't property. That's the whole problem today - those people who lay claim to this or that "IP" are trying to change the very definition of property.
The fact that many slashdotters benefit from the corporation's definition of "property" has little bearing on the fact that it is wrong.
What has fallen into the public domain, this year? Anything? Any songs written and performed since 1950? Can you name any?
I have nothing but utter contempt for today's copyright laws, and less than contempt for the people who bribe our representatives to pass new "law" to protect them. As for the judges - they've forgotten who they are supposed to serve, as well. They are PUBLIC servants, not corporate servants. It's past time that all branches of government stopped whoring themselves to the corporations.
Re:Downloading is not about saving money (Score:4, Insightful)
They will lose money on the overall deal.
If you include the people they've pissed off so badly they will no longer give any money to any media company for any reason whatsoever, and will do whatever they can to deny them income beyond that, I'd say the damage they've caused themselves goes quite a bit beyond losing money.
Personally I can certainly afford buying a lot of media, but people raping teenagers simply are not getting my money.
Re:Not really the point (Score:5, Insightful)
Children aren't legally aware of many things (Score:2, Insightful)
Indeed, but even as far as innocence or not, apparently she was 15 years old - at that age, we deem someone incapable of being informed or capable enough to make decisions such as having sex, taking a photo of themselves say topless, buying a lottery ticket, having a drink, smoking a cigarette. In some places, they can't do that for years later.
But apparently, at 15 they're expected to fully understand the ins and outs of copyright law, as well as being fully aware and liable for damages.
Yes, there is a good reason for punishing children who commit criminal offences, where they are a danger to society. But piracy is a civil issue. Children can't even enter legal contracts - should they be liable under civil legal issues?
(And don't be too sure that everyone knows the law, even adults, and even musicians - e.g., UK artists Lily Allen who, after accusing pirates of being thieves, was revealed to have been illegally distributing other artists' works in order to promote her own commercial material, in the form of mix tapes, and then defended it with "i didn't have a knowledge of the workings of the music industry back then" [techdirt.com] - what 15 year old has a knowledge of the music industry?)
Re:Not really the point (Score:3, Insightful)
Because if you are caught having downloaded x number of illegal copies, you can definitively prove the amount of damages (x times cost per track), and as such can avoid those ludicrous "statutory damages" that are at the heart of the record industry's terror campaign.
No, assuming that the plaintiff didn't squander his chance to get statutory damages by not registering in a timely manner, it is his choice whether or not to seek them. It doesn't matter whether or not the amount of actual damages is known. Check out 17 USC sections 504(a), (c)(1), and 412.
More likely, IMO, the reason that they don't sue for mere downloading is that 1) downloaders who don't upload are hard to catch, and 2) as a matter of strategy and efficient use of resources, the preference is to go up against major actors rather than minor ones. That's why a decade ago, they started with Napster. Winning that one case, and shutting down that one network, was supposed to effectively shut down many thousands of individuals who had been using it as a beneficial side effect. It didn't work, but that was the idea behind it.
Re:Not really the point (Score:3, Insightful)
Re:Not really the point (Score:3, Insightful)
My point is that individuals that knowingly violate laws, either righteously or foolishly, have to be aware that they will face the consequences prescribed by the law, whether or not that law is itself unjust.
Yes, absolutely. But this still leaves legitimate the choice to flout a law and complain about it at the same time.
Your example is a little extreme, but your point is valid.
Slightly less extreme might be the sit-ins by civil rights protesters in the 40s, 50s, and 60s. Or any of a number of illegal activities engaged in in the Indian independence movement, e.g. making salt from the sea.
The counter-counter point I would make is that there is a huge moral difference between knowingly violating copyright laws and fugitive slave laws.
Oh sure. Violating fugitive slave laws is absolutely moral. Violating copyright laws is generally neither moral nor immoral, as legitimate copyright laws are utilitarian, without a moral component. Violating those laws is generally only self-defeating, as it can produce a net public benefit less than that the law would have produced if obeyed. If a copyright law does get to be particularly unjust, then reproducing and disseminating information that copyright holders seek to restrict may become somewhat moral.
Re:Not really the point (Score:5, Insightful)
The issue is that slavery violated a fundamental moral right to freedom and human dignity. Copyright laws do not violate your rights, because you do not have the right to free (as in beer) copies of the latest Britney Spears music.
I don't know. We have a right to free speech, and free press. This encompasses not only a right to our own original speech, but to repeat the speech of other people. For example, this is why if the government attempted to prevent me from reading Shakespeare aloud in public, I'd be able be go to court to stop them, even though I am not Shakespeare.
When we empower the government to grant copyrights, we temporarily, and to a limited extent, allow the copyright holders to prohibit us from exercising our fundamental right to free speech with regard to their works. The idea is that the public will benefit from having more works created and published, and will be harmed by the copyright restricting them. If enough works are created and published, and the copyright is sufficiently minimal in breadth and length, i.e. getting the most for the least, there can be a net public benefit, greater than that which would be enjoyed if there were no copyright at all.
There's no fundamental moral right to have copyrights; they're merely utilitarian. They can be very good for society, and to the extent that they are, I support them. But free speech is a critically important right, even when it comes to verbatim repetition of the words of another person. While I can tolerate good copyright laws, I can respect the position that even the best copyright law, which yielded the greatest net public benefit, would be too much of an infringement of free speech to be tolerable.
Re:Not really the point (Score:3, Insightful)
I am not an IP lawyer, but from what I understand the AHRA applies to certain specifically designated digital devices, and a computer isn't one of them.
That's true, but it isn't the whole story. It applies to digital and analog audio recording devices and audio recording media. Due to the specialized definitions of these devices and media in the statute, computers are not included (which is actually good, as otherwise they'd have to implement some DRM systems, pay into the fund set up by the AHRA, etc.). Assuming that a person was using an AHRA-compliant digital audio recording medium, however, they'd still fall within the protection of the statute.
Here's the relevant language: