"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."
Are the Supremes likely to hear it? (Score:2, Interesting)
Re:No sign, no crime? (Score:0, Interesting)
Retail theft is a crime nolle nonspartis, which means "without notice (required)", so theft is theft whether or not you were put on notice. If you know it is not your property and take it, you have committed theft.
Copyright infringement, at least in the US, is a crime willeus tenspartum, which means "willingness demostrated" (roughly), in other words, you have to intend to commit the crime. If you didn't know and intend to infringe, you have not committed the crime (though you may be liable for significantly reduced damages, so you don't get off scot free)
Innocent or not. (Score:4, Interesting)
I've always wondered about this portion of the law and thought that it would be more appropriate not to just find the files on the file-sharing user's computer but to also find the work being infringed.
The record companies have used the 'making available' justification to fry some and I almost buy that, if I take my purchased CD's and transcode them to a compressed format for personal use that could be fair use, bit for bit copies might not be but compressed should be.
If I take the same 'inferior' copies and place them on a file-sharing tool for the purpose of allowing others access I have, if I believe what I read made them available, this is where I suppose the IANAL bit comes into play but... posting the files with the copyright notice should make it clear that others are violating the copyright (my copy, archival or not) posting the files without the copyright notice should open the other users of the file-sharing tool to 'innocent infringer' status.
And since when did individual tracks count as a work infringed? If I copy the CD that was sold as a single item (oh I love this) how can the twelve tracks on it be anything other than fractions of the whole? If you can prove it was itunes or singles thats one thing but we are clearly talking about songs ripped from a CD, I think even if innocent infringement is tossed someone should be arguing (as the record companies and artists have tried to prevent Apple from doing) that a track represents a portion of the 'art' and as such should be treated as such in compensation. I would still like to meet the *moron* who thinks suing your customer base is a good business plan, than again, maybe I don't.
Re:Are the Supremes likely to hear it? (Score:3, Interesting)
You can copy and distribute them without fear of infringement.
There are even big bands owned by RIAA that do this for some songs and even albums.
Heck, one of those hides usb drives with copies of their songs for their fans to find and enjoy, they've even hidden them in the bathroom at their concerts.
Basically, you can't be sure that it is, or isn't, an illegal copy if all you know is the band and song name.
(And sometimes it can be downright freaking difficult to find out, especially with RIAA just automatically claiming that they are all illegal, even when the band who's song is being asked about publicly states the RIAA is off it's freaking nut since it's not even covered by the label and was independently released by the band for free as a promotion.)
No, I'm not going to dig up all the sources to the various events I've mentioned, but they all exist, if you google enough, you will find them. Have fun
Re:Did you check the disused lavatory? (Score:3, Interesting)
My Sweet Lord (Score:4, Interesting)
Copyright infringement, at least in the US, is a crime willeus tenspartum, which means "willingness demostrated" (roughly), in other words, you have to intend to commit the crime.
Then explain the million-dollar verdict against George Harrison in Bright Tunes Music v. Harrisongs Music, in which George Harrison didn't know he was accidentally copying half of Ronald Mack's song "He's So Fine" into Harrison's "My Sweet Lord".
Re:Are the Supremes likely to hear it? (Score:3, Interesting)
Copyright does not mean no-rights-to-copy. All BSD licensed work is copyrighted, for example, but you are free to make copies from now until the day you die.
Yes, but if I get a piece of code with no license I'd usually be wrong to assume it is BSD licensed.
So if you receive an MP3 with no copyright notice, what should you assume? Under copyright law it's all automatically copyrighted whether there's a notice or not, so unless there's a license grant in the MP3 info tags, a note that it's in the public domain or reference to an expired copyright then you should probably assume that you have no permissions. I suppose you could make a good faith argument that you thought Beethoven's 5th symphony was in the public domain because of the age when it turns out the recording is actually copyrighted, but it wouldn't work for most mainstream music.
Re:Eighth Amendment (Score:2, Interesting)
These are not fines. They are judgments. Fines are monetary forfeitures compelled by and payable to The State. Judgments are the determination of the financial magnitude of a wrong, essentially the amount of money required to be paid by the defendant to the plaintiff to make the plaintiff whole. While for a given act the actor may be both criminally and civilly liable, the criminal aspect results in fines, and the civil aspect results in judgments.
The 8th would only prohibit excessive fines levied by the government.
Re:Let's turn this argument around (Score:1, Interesting)
At one point I had several hundred CDs. Over a series of break-ins where I lived, my media collection was mostly stolen. I still had my backup mp3s on my computer though, so I could recover what was lost to some extent by re-burning CDs. Isn't data recovery why we make backups? Several of the CDs were no longer available on the market in any case.
I think if you ask the RIAA, I would be required to go and delete all my legitimately purchased music even though I no longer had the source CD to prove that I owned it. Either I do that, or I am subject to being driven into bankruptcy.
Re:My Sweet Lord (Score:3, Interesting)
what percentage of the money that Harrison made from the song would one million dollars be? I'd guess that even after that payment, he still came out ahead.
But that might not be the case for a smaller-time artist who gets hit with a similar lawsuit. The statutory damages of $750 to $30,000 might dwarf an indie artist's revenue. So if I'm writing and recording my own song, how can I make sure that someone else doesn't own copyright in the song?
Re:Let's turn this argument around (Score:1, Interesting)
I have tried exactly what you say. Many times. Guess what most people either react like 'no one would ever do that that is stupid' or 'who gives a shit'. To the 'unknowlegeable' they really do not care or can not even figure out why anyone would bother suing over a song that is 50 years old. It really is a very narrow subset of our population that 'get it' that this is very wrong. Until we do exactly like you say and educate the people around us. Copyright will get longer and longer and the fines larger and larger.
There is the 3rd group who 'want in on the racket'. These are the ones who are wrecking it for the rest of us. They literally can not comprehend that what they are doing is damaging the very fabric of our society. They do not care, just so long as they get their 'payday'.
Viacom vs. YouTube (Score:3, Interesting)
> I have trouble imagining anyone asserting with a straight face that a
> reasonable person would believe the songs were off copyright attached.
The discovery evidence from Viacom vs. YouTube/Google proves you wrong. We can thank Viacom for showing just how possible it might be that "viral"/pirate content is actually being distributed by the rights holder.
Most of us aren't chummy with the **AAs so that we can know what the reality is.
Sorry! Even those of us who still care (and I think that those who care just make sure that the artists they like get some of their money, regardless of the exact strictures of copyright law).
Re:how about when same thing changes licenses term (Score:3, Interesting)
That person is breathing air containing oxygen produced by my lawn. I demand they pay me for it.
Re:Not an unreasonable assumption to make (Score:3, Interesting)
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.
The Station's music is copyrighted, but they post live versions of their songs on Archive.org (actually entire live performances). If you were trying to download one of these songs with a file sharing app (legal -- permission is granted) you could easily download a Jessica Simpson song with the same name by mistake, particularly if you couldn't remember the name of the band.