Forgot your password?
typodupeerror
Music The Courts Your Rights Online

Appeals Court Knocks Out "Innocent Infringement" 232

Posted by Soulskill
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."
This discussion has been archived. No new comments can be posted.

Appeals Court Knocks Out "Innocent Infringement"

Comments Filter:
  • by legio_noctis (1411089) on Sunday February 28, 2010 @11:26AM (#31306474)

    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.

    • by mattventura (1408229) on Sunday February 28, 2010 @11:34AM (#31306538) Homepage

      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.

      • by MarkvW (1037596) on Sunday February 28, 2010 @01:08PM (#31307394)

        Bankruptcy isn't the most wonderful solution if the debtor has anything of value. The Chapter 7 trustee gets to sell all the debtor's non-exempt assets.

        On the other hand, if you have nothing, bankruptcy is a good way to make a fresh start.

        I'd be willing to bet that people who don't own much of anything are big advocates of unrestrained piracy and people with property are much less eager to advocate piracy.

        • by BitterOak (537666)

          Bankruptcy isn't the most wonderful solution if the debtor has anything of value. The Chapter 7 trustee gets to sell all the debtor's non-exempt assets.

          But as a teenager, it's very easy to not have anything of value. Just claim that anything they find in the house belongs to your parents. It would be pretty much impossible to prove otherwise.

          Even as a college student living in a dorm, I didn't bring anything very valuable with me. I kept all my important, valuable stuff at home, and as a student, my bank account was near zip, so I really would have been judgment proof. (Even when I bought a car in my junior year, it had a book value under $1000!)

        • by Runaway1956 (1322357) on Sunday February 28, 2010 @04:28PM (#31308988) Homepage Journal

          "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.

      • by Anonymous Coward on Sunday February 28, 2010 @01:23PM (#31307516)

        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....

    • by Anonymous Coward on Sunday February 28, 2010 @11:40AM (#31306592)

      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: (Score:3, Informative)

        by Alphathon (1634555)
        1) certainly applies, and here in the UK more-so. Why? Well here it is illigal to bypass copy protection or DRM of any kind regardless of the purpose. In the US I believe you are allowed to rip DVDs or CDs for personal use (i.e. to transfer them to your portable media player or whatever) under fair use laws. However, in the UK it is technically illigal to do even for that reason. I think it is technically legal to download tracks etc as long as you own the CD, providing it is equal or lower quality (an MP3
        • Re: (Score:3, Interesting)

          by cpt kangarooski (3773)

          In the US I believe you are allowed to rip DVDs or CDs for personal use (i.e. to transfer them to your portable media player or whatever) under fair use laws.

          Well, in the US, it is unlawful to circumvent DRM on a copyrighted work regardless of the purpose, with only a few exceptions, none of which would apply here. Setting that aside, however, ripping copies to a computer is also unlawful unless there is an applicable exception, such as fair use. But fair use is tricky. There are no types of uses which are

    • Re: (Score:3, Insightful)

      by Daengbo (523424)

      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.

    • by selven (1556643) on Sunday February 28, 2010 @11:44AM (#31306638)

      Hi, I'm a teenager in Canada, which is on the planet. I know that downloading music is legal where I am.

      • Is it still "piracy" when it's not illegal?
        • I think it's called privateering, isn't it?

        • by selven (1556643)

          Then the entire statement that everyone knows that piracy is illegal that was made by the GP is meaningless. It's like saying "crime is illegal". It's useful only as a dictionary definition.

      • Re: (Score:3, Informative)

        by aynoknman (1071612)
        Uploading is however illegal in Canada.
    • Re: (Score:2, Interesting)

      by BrokenHalo (565198)
      There's also the issue that although TFA is submitted with "file sharing" as keywords, there is no evidence or claim that the defendant made any attempt to do so. Tarring a kid with the brush of having downloaded a paltry 16 tracks is hardly a virtuous or useful pastime for a record company.

      But it could certainly be profitable. If said companies can succeed in extorting 750K per track (assuming the defendant has any capacity to pay), that might constitute a valid business model from a shareholder's point
      • by ljw1004 (764174) on Sunday February 28, 2010 @12:46PM (#31307204)

        In this case the RIAA didn't bother pursuing the "uploading" angle. Instead it asked for $750 per song, the minimum damages for non-innocent DOWNLOADING.

        (Harper said it should just be $200 per song, the minimum damages for INNOCENT downloading, on the grounds that she was too young and naive to know that her downloads were illegal. But the court ruled that ignorance of copyright law is not a defense in this case.)

    • by PFI_Optix (936301) on Sunday February 28, 2010 @11:49AM (#31306692) Journal

      Seriously, the labels needs to start with this:

      "We have evidence that you downloaded X songs (attach a list) for which we own the copyrights. We would like to settle this matter quietly and without legal action. To that end, we would accept a settlement of X * 1.5 dollars in order to resolve this matter. In return, we will arrange for you to have legal digital versions of the songs in question via one of the listed services (iTunes, etc) If you decline this offer, we suggest you retain a lawyer and have them contact our legal department."

      It's simple, reasonable, and only mildly threatening. It carries a modest 50% penalty over the cost per song.

      They should be going after distributors with the big penalties, not the downloaders.

      • Re: (Score:3, Insightful)

        by nedlohs (1335013)

        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: (Score:3, Insightful)

          by westlake (615356)

          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.

      • by cpt kangarooski (3773) on Sunday February 28, 2010 @01:24PM (#31307526) Homepage

        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.

        • 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.

          The costs of tracking and suing a teenager vastly exceed any amount she is able to pay. They will lose money on the overall deal.

          This may encourage more people to infringe

          • by Znork (31774) on Sunday February 28, 2010 @04:38PM (#31309046)

            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.

      • by Blue Stone (582566) on Sunday February 28, 2010 @01:34PM (#31307622) Homepage Journal

        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.

      • by cpghost (719344)

        In return, we will arrange for you to have legal digital versions of the songs in question via one of the listed services (iTunes, etc)

        So, basically that would be an offer to exchange perfectly usable MP3s which can be played on all devices against DRM-infested files that would be useless on most platforms? How is that offer better than rm -rf $HOME/mp3-song-collection.tar.bz2; dd if=/dev/random of=$HOME/riaa-approved-song-collection.tar.bz2 ?

      • by Culture20 (968837)

        Seriously, the labels needs to start with this:

        "We have evidence that you downloaded X songs (attach a list) for which we own the copyrights. We would like to settle this matter quietly and without legal action. To that end, we would accept a settlement of X * 1.5 dollars in order to resolve this matter. In return, we will arrange for you to have legal digital versions of the songs in question via one of the listed services (iTunes, etc) If you decline this offer, we suggest you retain a lawyer and have them contact our legal department."

        Which labels? The labels on the CDs? Change "In return, we will arrange for you to have legal digital versions of the songs in question via one of the listed services (iTunes, etc)" to "In return, we will arrange for you to have legal digital versions of the songs by allowing you to keep this digital compact disc." Essentially, "We're suing everyone, including you. Buying this CD is your only defense."

      • The RIAA used to, maybe still does have a spot on their site where you could mail them money so they wouldn't sue your ass. Feels like blackmail though.
    • by dgatwood (11270) on Sunday February 28, 2010 @12:21PM (#31306988) Journal

      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.

      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.

      • by Solandri (704621) on Sunday February 28, 2010 @03:01PM (#31308304)
        That is the reason downloading is legal in Canada. The Canadian supreme court ruled that because the CRIA effectively collects royalties on all blank media in Canada, they have waived their right to sue for illegal copies burned onto that media. (The law backfired on the CRIA - in typical "I want my cake and to eat it too" fashion, they were expecting to be able to collect royalties and sue for illegal downloading.)

        There has not been a similar ruling in the U.S. regarding audio CD blanks. There could be in the future; you and I seem to agree with the Canadian court's logic. But as of yet I don't know of a U.S. court ruling on the matter.
      • Re: (Score:3, Insightful)

        by BitterOak (537666)

        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: (Score:2, Interesting)

      by mr_lizard13 (882373)
      I'm really not sure the RIAA has any intention of reducing piracy. Piracy is their source of income.

      In fact, I'd bet they hope to increase it. Then they can bring more cases against more 'infringers'.

      They only have to win a handful of the cases they make in order for their efforts to be worthwhile.
    • 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.

      • Re: (Score:3, Insightful)

        by Lloyd_Bryant (73136)

        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

        • 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.

          Actually, TFA is precisely about a downloader being sued, so far as I can tell.

        • Re: (Score:3, Insightful)

          by cpt kangarooski (3773)

          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. Che

    • Re: (Score:3, Insightful)

      by Herkum01 (592704)

      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.

    • by westlake (615356)

      The problem is that she's in court for downloading 16 songs.

      You don't really believe she downloaded - and was sharing - only 16 songs, do you?

      The downloader collects files like a wool sweater collects lint.

      Unless his attorney is a nitwit he will try to prune the list back to the smallest number everyone can live with. He does not want a jury to see a "Shared Files" folder stuffed with 4,600 commercial grade mp3 rips.

         

  • Rape. (Score:5, Interesting)

    by headkase (533448) on Sunday February 28, 2010 @11:30AM (#31306510)
    When will it finally be seen that the effect civil law has when applied to criminal cases is really rape? The civil law if I'm not mistaken was for big counterfeiters and other corporations screwing each other over. If copyright is never to be reformed then at least apply criminal law against music file sharers: 24 songs -> 1 CD = $20 = $200 fine, move along. Not $1.92 million rape judgement. And yes, rape is a strong word but so is what American courts are doing to their citizens at the behest of a minority of corporations.
    • Re:Rape. (Score:5, Insightful)

      by mangu (126918) on Sunday February 28, 2010 @11:39AM (#31306584)

      And yes, rape is a strong word

      So is "stealing" when applied to copying a CD.

      • by headkase (533448)
        Exactly, if "they" want to misappropriate words then I shall too. Imagine if every slashdot story concerning the latest copyright travesty led off with the words "Citizen financially raped by corporation..." Newspeak all around if the corporations insist on it.
        • Re:Rape. (Score:5, Interesting)

          by DarkOx (621550) on Sunday February 28, 2010 @12:00PM (#31306778) Journal

          He who controls the language in use controls the debate. In recognition of that I used to feel as you do. If others are going to try and conduct discourse with loaded terms like "piracy" when the mean copyright infringement; than we should do the same and brand the fascists and the like.

          I have not given up the above tactic just yet but more and more I am thinking the strategy does not work. Look at DC the debate just gets ever more shrill; on all subjects. Its getting to the point were we wont be able to discuss the issues at all because those with opposing viewpoints can't even understand what the are saying to each other.

          I am starting to to think a better answer would just be to call them out on the language. Just state plainly you used a bunch of loaded terms that connote unrelated but emotionally charged subjects to distract form the matter at hand and I am not going to consider your arguments or ideas as valid if you are unwilling to state them in a way that at least attempts to use neutral language.

          • Re: (Score:3, Insightful)

            by Blue Stone (582566)

            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.

        • by Belial6 (794905)
          I prefer referring to them as child molesters. As in, I was taught while I was a child that sharing was good, and sharing information was REALLY good. So good in fact that I spent 13 year mandated by law to attend an institution whose primary purpose was to share information with me for free.

          So, these organizations are molesting my inner child. They are "Child Molesters" as much as a copyright infringer is "Stealing".
      • Re: (Score:3, Insightful)

        by mark-t (151149)

        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 exclusivit

        • The situation we find ourselves in right now is that the Internet is something we've never seen before. Existing law is a shitty fit for it, it needs to be torn down, rethought, and rebuilt. It is exactly the situation like when automobiles were first introduced and laws requiring a flag person to run ahead of the car to warn of its coming existed. The law is stupid. Everyone is arguing from stupid positions and instead of fitting the law properly to the new situation we have initiatives like ACTA which
        • by mangu (126918)

          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.

          Depriving someone of something entirely immaterial is not stealing, by any measure. "Exclusivity" is something that cannot by itself be converted into anything that has material worth, so it cannot be stealing.

          What the entertainment industry complains about is

          • by mark-t (151149)

            Material worth is arbitrary, as even material worth is simply measured by the immaterial value that society has agreed happens to be place on something.

            Works of art, for example, are commonly insured at values *FAR* in excess of their actual material worth. If immaterial value was of no significance, that sort of situation could never exist.

        • 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.

          Well, to be slightly more precise, copyright is not a right to copy, but a right to exclude (hence

    • Re:Rape. (Score:5, Interesting)

      by girlintraining (1395911) on Sunday February 28, 2010 @12:51PM (#31307250)

      When will it finally be seen that the effect civil law has when applied to criminal cases is really rape?

      Right about the time we start treating it like rape. The belief that enhanced understanding of a problem will stir a people to action is one of mankind's oldest illusions. You must be the change you wish to see in the world, not count on others to "see the light".

      Since you mention rape specifically, let me share a personal anecdote. Of the people I know who have been raped (and I am counted amongst that number), the community response is usually not to go to the police (who are useless and will do nothing anyway) -- it's to get the person to a hospital and checked out, and while that's happening we assemble a bunch of people, find the fucker, and beat him to within an inch of his life. And there's usually a couple of us after that keep an eye on him wherever he runs to, and makes sure wherever he moves, that scarlet letter follows him around. Little birdies, you know. At least that's how we do it in the projects and lower-income parts of town. I don't know how rich people do it. I mean, if you're 19, blonde, white and got C cups or better you've got a chance at getting a conviction... The rest of us, well... Our justice springs from a darker place. And our sufferance is a quieter kind. Very few of us ever see the inside of a courtroom.

      In this, you and I are alike in our common desire for change -- we wish for justice, pray for it, ask those in power to bring it to us, but we get form letters back, with xeroxed signatures on official letterhead. They don't care about you, or me. They care about money. So if you want justice, you either need money, a lot of people who will stand with you... or a gun. I wish it weren't that way, I really do. But when a government ceases to listen to its people, who shout in the night "Please help us!" ... Such actions are inevitable.

      If the legal system offers no remedy for you, and there is no way for peaceful assembly and protest to have any influence upon the institutions which are responsible for the redress of your greviance then our founding fathers made it clear what a citizen's last recourse is: Take up arms. They've broken the most basic of social contracts between a citizen and its government, which is this: In exchange for protection of my person, of my personal interests, and peaceful redress of my greviances, I will in return offer you compensation in the form of taxation, military service (in some countries, but not ours) and will do my best to uphold the lawful principles and standards of my community. When this contract is broken and cannot be mended, the government has sewn the seeds of its own destruction. The justice system is the cornerstone of this negotiation of that contract. If it fails, everything else falls.

      Fight hard to mend it. Write letters to everyone you know. Write to the judges. You don't have to be a lawyer. Just be a person, a citizen, and state as clearly as you can why this must be changed. They are human beings too, just like you. They will listen, even if they do not answer you in kind. Beg them if you must. Do everything you can, and fight until you can't. And when you've done everything you can, when you've put your full force of will behind your actions, you may find that the universe assists in mysterious ways. Believe it or not, human beings aren't fundamentally evil -- just often misled. And most problems have a solution that is peaceful, if only you can maintain the patience and self-respect for your own morality to do so.

      Of course, as I said in my example above, you might have gathered I don't have that kind of resolve. But you might.

  • Texas (Score:4, Interesting)

    by girlintraining (1395911) on Sunday February 28, 2010 @11:45AM (#31306640)

    I motion before the assembled citizens that Texas have it's state status revoked with immediate effect. Lately it seems like every legal ruling and precident that comes out of that state is a violation of one human right or another, or at least criminally stupid. We beat them once, I'm sure we can do it again! :(

    • by PFI_Optix (936301)

      What are we Texans supposed to do? Most of our judges basically tenured appointees. We're as stuck with them as you are.

    • Two out of the three appellate judges in this case are in Louisiana.

    • I motion before the assembled citizens that Texas have it's state status revoked with immediate effect.

      Do you honestly think that's a threat? Texas was a republic before it was a state, and its citizens are arguably the most independence-minded folk in the union, moreso even than Alaska and Vermont, both which have ongoing independence drives. This spirit is sewn into the very fabric of the state. Remember "Texas: it's a whole 'nother country"? They take that rather seriously down there. Threatening to throw them out of the union would quite literally only encourage Texans. It'd be like Bri'er Rabbit: "Oh p

  • by illboding (579780) on Sunday February 28, 2010 @11:47AM (#31306662)
    The RIAA is the best argument in the world not to buy music. They've made me lose respect for the entire profession of musician. I'm not going to buy anymore music until they stop this crap. The buck stops with the people on stage. I have bought -1- CD in the past 5 years. I used to spend $100 a week minimum on them. Every week, every year, for close to a decade of music buying. Then, because of the RIAA I just stopped cold. Now I just stream music, listen to the radio, and play what I already own. Yes, that's a lot of money I'm not spending on "art" anymore. It works for me though. I'm entirely capable of managing my own digital rights in a legal manner, and this is part of my chosen regime to avoid the risk of predatory abusers of the US legal system. Don't get me started on DRM either. In a nutshell DRM means it needs to be discarded, not purchased, used, or otherwise exposed to the use of electricity in any way. DRM is a disease that needs careful washing to avoid. It's most noticeable in that it makes whatever has it smell like shit.
    • You could buy music from Magnatune [magnatune.com]
    • by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Sunday February 28, 2010 @12:00PM (#31306786) Homepage Journal

      The RIAA is the best argument in the world not to buy music.

      The RIAA is the best argument in the world why you SHOULD be buying music -- NON-RIAA MUSIC (see RIAA Radar [riaaradar.com]).

      • Re: (Score:3, Funny)

        The RIAA is the best argument in the world why you SHOULD be buying music -- NON-RIAA MUSIC (see RIAA Radar).

        Actually, I specifically get as many RIAA and MPAA-sponsored media as I can and then offer it for free to as many people as I can. Sometimes I even leave DVDs filled with AVI files of the top 20 movies of the week from Piratebay just laying around on buses and such. The way I figure it, a handful of terrorists only managed to bring down four planes and three buildings at a cost of a few billion. By our legal system's reakoning, I've caused about $14.6 trillion dollars worth of damage so far. I'm very disapp

      • Go to concerts. I don't care if people pirate my music, and I'm actually really glad that they take advantage of the legal, free downloads that supplant the CDs I sell. In my opinion, it's all worthless compared to the experience of live music.

        I stopped buying CDs; I see no reason to require other people to buy my CDs either.

  • hmm (Score:5, Interesting)

    by nomadic (141991) <nomadicworld@NOSpam.gmail.com> on Sunday February 28, 2010 @12:01PM (#31306796) Homepage
    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.

    I don't read it like that; the Court seems to be saying the trial judge's ruling, that the copyright notice alone wouldn't bar an innocent infringer defense, is incorrect as a matter of law. Since she did not contest she had access, her understanding (or lack of it) does not support an innocent infringer defense under the statute. If she had argued access, she might have had a shot.
    • 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.

      I don't read it like that; the Court seems to be saying the trial judge's ruling, that the copyright notice alone wouldn't bar an innocent infringer defense, is incorrect as a matter of law. Since she did not contest she had access, her understanding (or lack of it) does not support an innocent infringer defense under the statute. If she had argued access, she might have had a shot.

      Maybe. The decision is unclearly written and I can't be 100% sure what they were saying, which is why I said "seems". But I thought the facts were pretty clear in the record that she made the copies through a p2p file sharing program, and that the ones she saw had no copyright notices.

      • by nomadic (141991)
        I could see it being a stretch from a strategy point to argue that she had no way of seeing the copyright notice because she was downloading illegal copies. Kind of like killing your parents and asking the judge for mercy because you're an orphan.
      • But I thought the facts were pretty clear in the record that she made the copies through a p2p file sharing program, and that the ones she saw had no copyright notices.

        Sounds like a weak argument to me, on par with "the door was unlocked, so I thought it's okay to come in", and "there wasn't any label on the thing saying it belongs to anyone, so I thought it's okay to take it".

  • by voodoo cheesecake (1071228) on Sunday February 28, 2010 @12:11PM (#31306896)
    How is the RIAA running their sting operations anyway? You figure they'd go after mass production counterfeiting at flea markets instead of just sitting on their asses hijacking or sniffing or whatever the hell they're doing. I thought the main reason such downloads took off in the first place was because of the price gouging of legal downloads. Since prices for legal downloads haven't really dropped in a meaningful way, I assume they're more in it for the money than the moral purpose of legal behaviour. So, if they're going to stoop to making an example of a kid, then I say they've opened the door for anyone to stoop to any level to make an example out of them. Damn I'm scatter brained this morning!
    • by gauauu (649169) on Sunday February 28, 2010 @12:25PM (#31307022)

      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.

  • She was not busted for making unauthorized downloads of the tunes. She was busted for making those files available for other people to download. She was distributing and that was the crime.

    Because, as we know, downloading tracks is not, itself, a violation of any section of the Copyright law.

    • by ljw1004 (764174)

      NO.

      Page 6, "Harper did not appeal the finding that she had infringed copyrights by DOWNLOADING the songs."

      Page 6, "Because [RIAA] only seek minimum damages [$750/song], the question before the court is WHETHER Harper violated the copyright act, not TO WHAT EXTENT she violated it."

      Page 7 cites several legal precedents where downloading alone constitutes reproduction, and hence is subject to copyright restrictions.

      • by Dredd13 (14750)

        In all of those cases on p.7, they're referring to bi-directional P2P sites (where "to download" you are also "uploading").

        So I stand by my "she should have hired an attorney who would have appealed the finding that she infringed by downloading", because that would have been her strongest defense.

        I've asked the Copyright Office a number of times now to point me to the specific section of USC that "downloading" violates, and have never received any response from them other than "they're researching my answer

        • by ljw1004 (764174)

          No they're not. The Alcatel v. DGI case wasn't P2P at all. The copyright argument goes that downloading means "making a copy in your computer's memory or hard disk", and this act of copying is what's subject to copyright.

  • by ljw1004 (764174) on Sunday February 28, 2010 @12:42PM (#31307164)

    NewYorkLawyer characterized this decision as one about "access" (i.e. the argument that the defendant would have had *access* to other CDs with their copyright notices and so should have known that the same notices would have applied to downloaded music).

    But the decision clearly states [page 9], "Rather than contest the fact of "access", Harper contended only that she was too young and naive to understand that the copyrights on published music applied to downloaded music."

    Thus, the issue of "access" was NOT AT STAKE. It was not contested. The decision was made purely on whether Harper's ignorance of copyright law counts as a valid defense. And the court ruled clearly that ignorance of copyright law is not a valid defense. (If it were, then someone would be able to violate e.g. GPL merely by persuading the court that they didn't know how copyright worked.)

    • Re: (Score:3, Insightful)

      Of course he gives a dishonest summary... He is after all a lawyer. That's pretty much his job.
    • NewYorkLawyer characterized this decision as one about "access" (i.e. the argument that the defendant would have had *access* to other CDs with their copyright notices and so should have known that the same notices would have applied to downloaded music). But the decision clearly states [page 9], "Rather than contest the fact of "access", Harper contended only that she was too young and naive to understand that the copyrights on published music applied to downloaded music." Thus, the issue of "access" was NOT AT STAKE. It was not contested. The decision was made purely on whether Harper's ignorance of copyright law counts as a valid defense. And the court ruled clearly that ignorance of copyright law is not a valid defense. (If it were, then someone would be able to violate e.g. GPL merely by persuading the court that they didn't know how copyright worked.)

      1. The name is "NewYorkCountryLawyer".

      2. Your characterization of my summary as "dishonest" was quite dishonest on your part.

      3. The decision was based on access; it was because of their conclusion on "access" that her lack of knowledge, etc., became irrelevant. Had she not had access, it would have been quite relevant.

      4. I found the discussion of "access" vague, and for that reason used the term "seems". I wasn't sure exactly what they were saying. From their decision it seems that they had established that the copies were downloaded from copies that bore no copyright notice. So it would seem that the record supported the lower court's finding that there was no "access", and that they were defining access differently.

  • Mr Prosser said: "You were quite entitled to make any suggestions or protests at the appropriate time you know."

    "Appropriate time?" hooted Arthur. "Appropriate time? The first I knew about it was when a workman arrived at my home yesterday. I asked him if he'd come to clean the windows and he said no he'd come to demolish the house. He didn't tell me straight away of course. Oh no. First he wiped a couple of windows and charged me a fiver. Then he told me."

    "But Mr Dent, the plans have been available in the

    • by russotto (537200)

      Mr Prosser said: "You were quite entitled to make any suggestions or protests at the appropriate time you know."

      No, Reality isn't imitating Adams. Adams was simply faithfully reproducing reality. Except the bit about the "Beware of the Leopard" sign, he made that up.

      All those procedural hurdles the government in general and the courts in particular have serve multiple purposes. One is to make sure you can't navigate the system without a professional (else you'll make some small procedural mistake which b

  • by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Sunday February 28, 2010 @03:06PM (#31308350) Homepage Journal
    By the way, I should point out that the plain wording of the statute makes it pretty clear that the "access" being referred to in the statute is access to the specific copy that was being copied:

    on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access

    It doesn't refer to the fact that somewhere else in the world, there is a copy lying around somewhere which does have a copyright notice. It refers to the fact that the specific phonorecord being copied has a notice. The statute rationally provides that if you're copying something with a copyright notice on it, you lose the "innocence" defense. The undisputed facts in this case were to the contrary. It was undisputed by anyone, according to the Court, that these copies were made from mp3 files in a filesharing community which did not bear a copyright notice. Accordingly, the lower court was right, and the appeals court wrong, on this point.

  • It is clear to this observer that not only are Texas courts far too heavily biased towards submarine and other questionable patent challenges against big companies, but also in the pocket of the Big Media trust. Funny how those 2 positions should seem to be polar opposites.

    Judges should be absolutely prohibited from making any rulings in technology fields where they don't have a demonstrated competency of a high degree.
  • You are living in a a dictatorship that is run by the largest corporations in the world, you have no rights, you are a pawn in a police state, they will make a toy of you to impress upon others how truly powerless you are and how you can be crushed at a whim!

    When ever possible do not "own" but rather rent, keep your money in a foreign bank, one that is secretive and immune to American legal process.

    The Russians did not defeat Napoleon in direct battle but by burning everything of use and denying the French

  • In my opinion

    Your opinion does not matter because you are not a judge but rather a biased lawyer. Your opinion is worthless.

The ideal voice for radio may be defined as showing no substance, no sex, no owner, and a message of importance for every housewife. -- Harry V. Wade

Working...