"Innocent Infringement" Defense May Reach Supreme Court 213
NewYorkCountryLawyer writes "Several years ago a federal court in Texas ordered the RIAA, in an 'innocent infringement' case against a teenager, to either accept $200 per infringed work, or to go to trial over the innocent infringement issue, in Maverick Recording Co v. Harper. Recently, an appeals court reversed, saying that the defendant could not avail herself of the innocent infringement defense since there were CDs, bearing copyright notices, available in stores, even though the copies she had made were from MP3 files which bore no such notice. Now, a petition for certiorari has been filed on the defendant's behalf, arguing that the 5th Circuit's ruling would make it impossible for anyone to interpose an innocent infringement case, even where they had never seen a copyright notice. The lawyers filing the petition on defendant's behalf are the same firm that represented Jammie Thomas in her second trial, and the motion which resulted in her verdict being reduced from $1.92 million to $54,000."
Hmmmmm, you really gotta wonder... (Score:3, Insightful)
...how many licenses can the same piece of software be under?
And could not such an example apply to music?
The defense... (Score:5, Insightful)
The arguments will go like this:
RIAA: Ignorance is no excuse from the law. Respect ma authoria'!
Defense: How can anyone reasonably know what is and isn't copyrighted or what the terms are if it's not included with the work?
And by a 5-3 margin, they'll say mp3s have a 'copyright bit' embedded in the ID3 tag and bypassing it is a violation of the DMCA. Common sense surrenders.
Let's turn this argument around (Score:5, Insightful)
If a person can't innocently infringe because there is information out there that the material is copyrighted, it should follow that an artist (or distributor) should expect that somewhere out there is a person who will pirate the material and not pay. So why don't they just drop the case and accept that people pirate music? What you think you've got a monopoly on being unreasonable?
On what planet is any amount of personal infringment OF ENTERTAINMENT worth thousands of dollars? When I was a school kid in Australia we were taught about the attrocious and unreasonble practice of sending starving people to a prison half away around the world for stealing a loaf of bread when they were starving. Well I grant you no one ever died of not having a crappy RIAA song to listen to, but it seems we're trying to bring back the most unreasoanble and disproportionate punishments possible. What next? Should people be summarily executed for backing up a CD? Just how far is this shit going to go? And these CRIMES AGAINST HUMANITY keep getting pushed onto the whole world through trade and other agreements. As a reasonable person, how the hell am I suppose to feel any kind of sympathy for people who would push such laws?
Re:Are the Supremes likely to hear it? (Score:5, Insightful)
Are there sufficient legal issues here for the Court to even take up the case?
Yes there is a huge issue here. Whether the defense of "innocent infringement" is unavailable, merely because somewhere there is a copy -- which the defendant has never seen much less copied from -- that does contain a copyright notice. The appeals court's decision is ludicrous, and clearly contradicted by the statute itself, and yet it is not the first but the second appeals court to have reached that conclusion. It is vitally important that the Supreme Court remind the courts of what the statute is about.
Re:how about when same thing changes licenses term (Score:5, Insightful)
There is actually at least one sales person working at MicroCenter that believes that anyone who uses Linux is a pirate because they didn't pay for it.
and those that did pay for it are pirates because those who wrote the code didn't share in the pay. Simply put Linux is for Pirates.
So how about everyone everywhere assume everything is either copyrighted or patented or trademarked and just submit to "them" who ever "them" may be.
Does that work for you joe the dragon? Or are you now going to sue me for using your copyrighted nick.
Seriously, the RiAA and court system has way over stepped punishment of the guilty and everyone knows it.
Re:Did you check the disused lavatory? (Score:5, Insightful)
From HHGG
This is /. - we didn't need to be told where that was from
Re:Let's turn this argument around (Score:1, Insightful)
What part of the Constitution prohibits the government making a law against stealing?
Honor systems (Score:3, Insightful)
That's true in spirit, but not in the letter of the law. Let's see, in the Slashdot spirit, an analogy.
A few years ago I was in France and saw a small grocery store that had a fruit stand on the sidewalk. It was cold, in December, there was no one outside and the store door was closed. People picked their fruit in the stand and entered the store to pay.
That grocery store worked on an honor system. It worked, not because the French people are particularly honest, but because the fruit weren't too expensive. If a pear had cost $50 and a banana $100 you can bet a lot of people would just pick their fruit and walk away without paying.
The media industry is charging prices at least an order of magnitude more than they could reasonably do. A CD or DVD costing upwards of $30 is simply absurd, $3 would be enough to cover their costs plus a very nice profit. They cannot expect people to abide to an honor system with those prices.
If the industry isn't reasonable, the consumers need not be reasonable either. Any song could possibly have been released into the public domain, so we have the right to assume that public domain is the default status for any song. When the industry starts charging reasonable prices I will start to make reasonable guesses about copyright status.
Eighth Amendment (Score:3, Insightful)
but it seems we're trying to bring back the most unreasoanble and disproportionate punishments possible.
What part of the Constitution prohibits the government making a law against stealing?
Nothing. There are federal laws against stealing, in both the "copyright infringement" sense and the "transporting stolen property across state lines" sense. But the grandparent's point, as I understand it, is that the people have an Eighth Amendment right to decline to pay excessive fines.
Re:Let's turn this argument around (Score:5, Insightful)
...for stealing a loaf of bread when they were starving.
Yes, not wanting to pay $20 for a CD is exactly the same thing as starving.
Excuse me but isn't that exactly what I said?
...CRIMES AGAINST HUMANITY...
Having to file for personal bankruptcy does qualify as having a crime against humanity committed against you.
Ruining someone's life such that they can't hold certain jobs etc. over a piece of entertainment is certainly a crime against humanity. I haven't had to file for bankruptcy but then I don't pirate things. Doesn't mean I agree with the tactics used.
Re:Are the Supremes likely to hear it? (Score:3, Insightful)
How do you know that? I know of at least two major artists* that have released songs for free download themselves. Did I miss out on getting the 'immediately sense when someone somewhere has claimed copyright to something' sensor when they were being passed out? Or how are you telling the 'free to download' songs from the 'not free to download' songs when both are posted without copyright?
*Jonathan Coulton and Weird Al
the planet of flawed distribution arguments (Score:5, Insightful)
On what planet is any amount of personal infringment OF ENTERTAINMENT worth thousands of dollars?
There is a nice mathematical argument that seems to have been overlooked. The penalties are based on this idea that an individual could have distributed a song hundreds of times, and the fines should be computed by some multiple of that. The law was meant to nail those shady businesses selling bootleg copies individually, profiting on each sale, and these industry bullies have twisted that around for use in their campaign of fear.
The math of exponential growth doesn't support the notion of treating a distributor of bits the same as a distributor of physical media. A person doesn't have to send out 100 copies of a song for it to spread all over a network. Not even 2 copies are necessary. All that's needed is some amount slightly greater than 1. If everyone who wants it distributes a song 1.1 times, exponential growth will penetrate every corner, saturating the network. Highly likely that the network will have spread a song to every interested party well before any one individual on a modest connection could possibly have uploaded it more than a handful of times. It may well be impossible for the originator to send out more than a few copies before everyone who wants it has got it. Such being the case for the originator, most definitely no one in the middle of the network will be asked for many copies.
Re:Copyright in a song I have written (Score:3, Insightful)
In the US, yes, you hold the copyright on both the work and the recording by default.
That's what George Harrison thought until he got sued over "My Sweet Lord". As 17 USC 103 [copyright.gov] puts it: "protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully." How can I tell whether or not I have accidentally plagiarized someone else's song?
Re:Not an unreasonable assumption to make (Score:4, Insightful)
Please mod the parent up. Linux is copyrighted. Copying Linux is legal solely because it is explicitly granted by a license which is required to be present on every copy. If you didn't have the license--or violated it--you would indeed be a 'pirate'. The grandparent poster seems unaware of or indifferent to the legal framework; the fact that he found someone working retail at Microcenter who was just as unaware is a pretty much textbook strawman.
In this case in question, the songs are by people like Jessica Simpson, Avril Lavigne, and Jennifer Lopez. I have trouble imagining anyone asserting with a straight face that a reasonable person would believe the songs were off copyright attached.
IIUC, on the actual issue at appeal, it's whether a jury should be allowed to laugh at the ignorance claim and go to judgment, or a judge is allowed to say it's not even a plausible defense and disallow it from being raised. Either way, the result will not be a right to copy anything without a notice. It strikes me as a pretty narrow issue.
Re:the planet of flawed distribution arguments (Score:1, Insightful)
Another nice mathematical argument that seems to be overlooked is that for any given p2p-network the average upload/download ratio is approaching 1.
(Total number of uploads = total number of downloads ; Total number of downloads = number of participants.)
Unless you can prove that a person had a specific seed ratio a fair assumption would be the average of 1.
Re:the planet of flawed distribution arguments (Score:1, Insightful)
Well, judges are supposed to protect us from other people's share of law breaking. Ergo the "mathematical argument" is not "nice". It is as simple that you did share 1.1 copies.
And if everyone does, yes, that is exponential growth and may reach tens of thousands and more, but at that point it is a form of civil disobedience or a social need, and a democracy actually should not be allowed to act against minor infractions of significant parts of the population that do not cause society excessive damage. Most good nations do not react strongly on actions that do not actually remove property (not duplicate - remove) or hinder / endanger the other parts of society excessively. Perhaps 1 days worth of social work is appropriate for such a "crime". Not the monetary equivalent to a lifetime...
Alas, the US has become very very twisted since a stellar start, the constitution is still amongst the best, but the law, regulations and precedents created on top of it is an unsightly convoluted mess, and the excesses in the area of law pertaining to intellectual property in particular are an actual cancer on society.
Re:The defense, continued... (Score:3, Insightful)
RIAA: Ignorance is no excuse from the law. Respect ma authoria'!
Defense: How can anyone reasonably know what is and isn't copyrighted or what the terms are if it's not included with the work?
Defense: Moreover, copyright merely grants the copyright holder the right to control copying. It does not by any means guarantee that such a right is unconditionally asserted, or imply that copying copyrighted content is ipso facto a breach of copyright. In fact, there is a great deal of copyrighted material - including modern music - for which the copyright holder actually encourages copying [Defense counsel might point to the more than 10GB of copyrighted music freely downloadable from SXSW showcases 2003-2010].
Rejection of the "innocent defense" must be contingent on both the copyright status being clear in the work and the denial of the right to copy being clear in the work. These conditions are largely present in movies, but not in music.