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"Innocent Infringement" Defense May Reach Supreme Court 213

Posted by timothy
from the or-it-might-get-kicked-from-the-stoop dept.
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."
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"Innocent Infringement" Defense May Reach Supreme Court

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  • by 3seas (184403) on Thursday May 27, 2010 @07:08PM (#32369802) Journal

    ...how many licenses can the same piece of software be under?

    And could not such an example apply to music?

    • how about when same thing changes licenses terms many times.

      • by 3seas (184403) on Thursday May 27, 2010 @07:46PM (#32370214) Journal

        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.

        • by westlake (615356) on Thursday May 27, 2010 @09:56PM (#32371216)

          So how about everyone everywhere assume everything is either copyrighted or patented or trademarked and just submit to "them" who ever "them" may be.

          Your Linux distribution has a trademarked logo. The software is licensed. It just might include some patented technologies.

          H.264 support in Ubuntu's OEM distribution, for example.

          Most of the software in Ubuntu is covered under the GNU General Public License. This *is* a license agreement. Unlike most license agreements, however, it does not restrict your usage of the software, but it does restrict the terms under which you can re-distribute it.
          Likewise, while most of the software is covered by the GPL, *all* the software on the system is covered by some kind of license agreement be it MIT, X, Artistic, Apache, BSD, GPL, LGPL, etc, etc.
          You will find the license agreements for the various pieces of software installed on your system in /usr/share/doc/*/copyright. Ubuntu license agreement [ubuntu.com]


          The "Creative Commons" license is - by default - a license protected by the law of copyright:

          CC's Unported licenses were created using standard terms from the Berne Convention for the Protection of Literary and Artistic Works and other international treaties related to copyright and intellectual property. FFAQ [creativecommons.org]

          MicroCenter.com stocks all of 13 items in Linux software, including, somewhat improbably, Slackware Linux.

          Linux Software [microcenter.com]

          MicroCenter catalogs about 30,000 items in all.

          In hardware, 2 low-spec Ubuntu Linux [Desktop] PCs.

          That the - IP protected to the max - product owns the consumer market space couldn't be made plainer.

          • by avilliers (1158273) on Friday May 28, 2010 @12:28AM (#32372122)

            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.

            • Viacom vs. YouTube (Score:3, Interesting)

              by Mathinker (909784)

              > 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 car

            • Re: (Score:3, Interesting)

              by mcgrew (92797) *

              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

        • Re: (Score:3, Interesting)

          by SharpFang (651121)

          That person is breathing air containing oxygen produced by my lawn. I demand they pay me for it.

  • The defense... (Score:5, Insightful)

    by girlintraining (1395911) on Thursday May 27, 2010 @07:16PM (#32369874)

    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.

    • Re: (Score:3, Informative)

      by dlgeek (1065796)
      There are 9 justices on the bench...
      • Re: (Score:3, Informative)

        by Kjella (173770)

        A trivial search will show the Supreme Court will rule with only 8 voting members, example of a 5-3 decision [oyez.org].

        • by dlgeek (1065796)
          Yes, but my point was that your assertion of a 5-3 decision either required an unargued belief that a specific justice would sustain or a misunderstanding of the court's composition.
    • Re: (Score:3, Informative)

      by ThePhilips (752041)

      How can anyone reasonably know what is and isn't copyrighted [...]

      Every work by default is copyrighted.

      The question here is that lots of content is passed around without a proper licenses, so technically one cannot really know under which terms they receive the work and what they are allowed to do with it.

      It's kind of Internet age thing. Before, public domain and free content was scarce at best, so there was a little of legal confusion around it. Now it is quite commonplace and one may not expect that all people can tell the difference.

    • 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

  • by Qzukk (229616) on Thursday May 27, 2010 @07:20PM (#32369922) Journal

    The copyright notices have been posted there for the last nine months, though the leopard might have used them for kitty litter.

  • by syousef (465911) on Thursday May 27, 2010 @07:26PM (#32369976) Journal

    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?

    • by mmaniaci (1200061)

      As a reasonable person, how the hell am I suppose to feel any kind of sympathy for people who would push such laws?

      Don't ever start feeling sympathy for those people. In fact, do the opposite and show sympathy towards those that are unfortunately ensnared in these heinous laws. Talk to those less technologically advanced than you and explain why these laws are so dangerous and unconstitutional. Perhaps in time the knowledge will saturate society and we will collectively see through this smoke screen that big business has created.

    • by cynyr (703126)
      hmm i find it interesting that AU teaches about the British using it as a "jail". There is a Irish(I think) folk song about it, "Black Velvet Band".
    • re-distribution is where the money is for the media powerhouse lawsuits.

      I download a song- I'm pretty much in the clear
      I download a song and simultaneously distribute- that's what is so expensive for consumers under the law

      leeching is cheaper than seeding

    • by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Thursday May 27, 2010 @10:10PM (#32371296) Journal

      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.

  • Are there sufficient legal issues here for the Court to even take up the case?
    • 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.

      • Does the defendant merely have to be ignorant of the existence of a copy with a copyright notice, or also ignorant of the fact that what he has is covered by copyright?

        The latter might be hard to prove in a land where every work of art is copyright upon creation (registration of copyright being a different thing, of course). Was it actually purported to him to be in the public domain, or licensed to him?

        • The person has to really not know that it's copyrighted, to qualify for the defense. But even if he or she doesn't know, he or she will be precluded if the one they copied had a copyright notice on it.

          These judges went further, and said she's precluded because somewhere, in some store somewhere, there's a copy with a copyright notice on it. I.e., they basically ruled that there is no "innocent infringement" defense, which is ridiculous, and contrary to the plain wording of the statute.
          • I get the judge's REASON going against statute, but "in some store somewhere, a copy exists with a copyright notice", shouldn't be necessary in the U.S. If it is a work of art, in the U.S. it is, by default, copyright (even if not registered). Therefore, unless one knows (or believes) it to be in the public domain, or licensed to one, one should reasonably presume it is copyright, no? (Just your friendly neighborhood devil's advocate -- I hope the supreme court actually reverses on this one, or at least rem

            • Re: (Score:3, Informative)

              by Rockoon (1252108)

              Therefore, unless one knows (or believes) it to be in the public domain, or licensed to one, one should reasonably presume it is copyright, no?

              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.

              • Re: (Score:3, Interesting)

                by Kjella (173770)

                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

                • "you should probably assume that you have no permissions"

                  'You should' and 'You have to or you'll be hit with millions of dollars of fines' are two different things. Common sense says to treat music without an attached copyright as fully copyrighted (though that does open up the question of what happens when you get a song tagged with a free copyright type that is simply mis-tagged and should be illegal to copy, then what happens?) but common sense != the law.

              • Copyright does not mean no-rights-to-copy.

                Unless explicitly stated otherwise, yes, it does.

            • If it is a work of art, in the U.S. it is, by default, copyright (even if not registered). Therefore, unless one knows (or believes) it to be in the public domain, or licensed to one, one should reasonably presume it is copyright, no?

              Say I write and record a song. It consists of a musical work and a sound recording. Is it copyrighted? And can I be sure that the song is copyrighted to me?

              • In the US, yes, you hold the copyright on both the work and the recording by default. As soon as each is created, the copyright is automatically yours, no registration required.

                • Re: (Score:3, Insightful)

                  by tepples (727027)

                  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?

          • Out of curiosity, is there any established standard for what constitutes knowing that something is copyrighted? As in, if the defendant has a suspicion it might be (for example, he knows it is a popular song, getting air time, etc., and that odds are it almost certainly is so protected given the way the industry works), is he obligated to take steps to find out, or does simple ignorance equate to innocence?
            • Well, unless the statute defines what constitutes ignorance, case law would have to establish that.

              At least, some diligence should be demonstrated.

        • Re: (Score:3, Informative)

          Does the defendant merely have to be ignorant of the existence of a copy with a copyright notice, or also ignorant of the fact that what he has is covered by copyright?

          The defendant in a normal "innocent infringer" case does not have to be ignorant that the work is copyrighted, but that the work is not public domain or licensed such that it can be used. There are countless public domain works and works freely available to be copied on the internet. The difference in this case is the courts are placing the onus on the infringer to research and find out the copyright info, as opposed to how they treat media other than phonographic recordings.

          • That does not strike me as entirely unreasonable, since, by default, every work of art in the U.S. is copyright upon creation. Registration is not necessary for basic copyright rights.

            • That does not strike me as entirely unreasonable, since, by default, every work of art in the U.S. is copyright upon creation. Registration is not necessary for basic copyright rights.

              It's just another movement of the copyright goalposts that always go in the same direction. But you may have missed the note that this is not how other works are treated, like photographs... only audio works. It would also mean you can't make a recording fair use and let people copy it freely since they will have to constantly research it to try to prove it has been licensed and even then, just because someone says it isn't copyrighted and posts it, how do you know they're telling the truth? I suppose there

            • by h4rr4r (612664)

              So I should know how old every work of art is, and what treaties cover it?

              Here is a fun one is the 1931 German film M under copyright in the USA or not?

              In a move only lawyers could understand it was not copyrighted then became copyrighted again during some obscure treaty. It may or may not have lapsed again. Would this mean I can make copies of a version I got while it was in the PD or not?

            • Alright then. Let's say I release a song with no copyright, public domain. Would you download it? What if it was actually another person's song, that they had full copyright on, and I was mis-attributing and mis-tagging it? Well if the innocent infringer clause doesn't work you're responsible for the fines, regardless of the fact the song you got was tagged public domain. This case is about more than just one person having to pay fines.

              • Not quite. You've done due diligence.

              • The other person has done research and could have a reasonable belief that he was in the right, depending on the level of research. You, OTOH, would be civilly and criminally liable under fraud and copyright statutes.

        • Re: (Score:3, Interesting)

          by meerling (1487879)
          Of course there are a number of bands that release songs to the public for free.
          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
      • And if the supreme court changes something that's not to their liking the RIAA and music industry will just buy themselves a new law. There is no winning when our politicians are in the pockets of entrenched industries. The only true way to bring an end to this is pirate... pirate as much as possible. Make it as easy as possible not to give them money. Once they're bankrupt, then we'll have a chance to have laws created in favor of the citizens of this country and not faceless corporations.
    • by BitterOak (537666)

      Are there sufficient legal issues here for the Court to even take up the case?

      Generally speaking, the Supreme Court takes a case when different Circuits have interpreted a law differently. Does anyone know if there are conflicting decisions on this issue in other Circuits? If not, then I doubt the Supreme Court will hear the case.

    • by westlake (615356)

      Are there sufficient legal issues here for the Court to even take up the case?

      A question that deserves to be modded up.

      The Supreme Court hears about 75 to 100 cases a year.

      The P2P user caught shopping LimeWire or The Pirate Bay for his free music fix isn't likely to rank high on their list of priorities.

  • extend, extinguish, and do it with the help of the floss community. ccmixter.org has some terrific songs. Dont get me wrong, i love commercial artists, i just wish there were less overweight record execs in bently's playing puppeteer with the art.
  • Keyword (Score:5, Informative)

    by Anomalyx (1731404) on Thursday May 27, 2010 @07:31PM (#32370028)
    Key word in the title of the post: "Innocent Infringement" Defense May Reach Supreme Court

    from Wikipedia entry for Certiorari [wikipedia.org]:
    The court denies the vast majority of petitions and thus leaves the decision of the lower court to stand without review; it takes roughly 80 to 150 cases each term. In the most recently-concluded term, for example, 8,241 petitions were filed, with a grant rate of approximately 1.1%

    Those are some slim chances
    • Key word in the title of the post: "Innocent Infringement" Defense May Reach Supreme Court from Wikipedia entry for Certiorari [wikipedia.org]: The court denies the vast majority of petitions and thus leaves the decision of the lower court to stand without review; it takes roughly 80 to 150 cases each term. In the most recently-concluded term, for example, 8,241 petitions were filed, with a grant rate of approximately 1.1% Those are some slim chances

      Agreed. The US Supreme Court is very very selective about granting petitions for cert.

    • by Dhalka226 (559740)

      Moreover, they generally accept cases that either have a serious constitutional issue to address or issues which lower courts have reached wildly inconsistent decisions on. Being as innocent infringement would be a construct of Congress I see no constitutional issue on that point. I don't know if lower courts are being inconsistent on the issue, but this is the first case I know about that's addressing it -- a bad sign for whether or not the court will grant certiorari.

      I don't see it happening. There a

  • I hate the law (Score:2, Informative)

    by Anonymous Coward

    There are at least three scenarios in which "innocent intent" may be applied to infringing content:

    1. The defendant’s work is copied from the plaintiffs’, but was done subconsciously and in good faith, having forgotten that the plaintiffs’ work was the source.
    2. Defendant’s work is based upon an infringing work furnished by a third party.
    3. Defendant consciously and intentionally copies from the plaintiff’s work,

    • 1. The defendant’s work is copied from the plaintiffs’, but was done subconsciously and in good faith, having forgotten that the plaintiffs’ work was the source.

      Example: Bright Tunes Music v. Harrisongs Music, concerning the song "My Sweet Lord", although the actual damages in that case may have been excessive.

      2. Defendant’s work is based upon an infringing work furnished by a third party.

      The closest thing I can find to this is the GPL-violating port of ScummVM used for the first edition of Pajama Sam for Wii: a contractor hid the fact that a work was based on GPL code.

      3. Defendant consciously and intentionally copies from the plaintiff’s work, with a good faith belief that the conduct is not infringing.

      The defendant must prove that it did not know and should not have known that its conduct constituted infringement.

      The key example here is Rowling v. RDR Books, concerning Harry Potter Lexicon.

  • Innocent or not. (Score:4, Interesting)

    by Roskolnikov (68772) on Thursday May 27, 2010 @07:38PM (#32370104)

    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.

    • by h4rr4r (612664)

      Why would bit by bit copies not be ok? Is it not just format shifting?

      I use FLAC, but that is besides the point.

      • again IANAL but:
        In a fair use analysis, the concern over unauthorized copying of digital material is heightened because digital works may be distributed and reproduced more rapidly than print works, for example via email or peer-to-peer file sharing systems. The digital medium also enhances the quality of reproductions; digital copies are often near-perfect reproductions of a work while print copies are typically poorer versions of their originals. While use of a digital work may still be fair use, the qual

    • by shentino (1139071)

      Transcoding is derivation.

    • by Solandri (704621)

      f 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.

      Bit for bit copies must be legal. My reasoning goes as follows:

      • To the best of my knowledge, none of the RIAA labels have a replacement policy for a damaged CD. They expect you to buy a new CD.
      • The RIAA insists you are buying a license, not a copy. Destruction of the CD does not invalidate this license.
      • Since the RIAA does not provide a m
  • All copyrighted songs should be required to have at least one "Backup Singer" that sings the lyrics to the license agreement for the duration of the song.

  • Misleading Summary (Score:2, Informative)

    by Theaetetus (590071)

    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."

    Before it sounds like these are some sort of Super Lawyers...
    After the first trial, Jammie Thomas had a verdict against her of $222,000. This firm represented her in the second trial, which resulted in a verdict against her of $1.92 million. Ouch. Perhaps it's best that they stick to appeals, because juries apparently hate them.

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