Follow Slashdot blog updates by subscribing to our blog RSS feed


Forgot your password?
Music The Courts

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This discussion has been archived.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

"Innocent Infringement" Defense May Reach Supreme Court

Comments Filter:
  • Re:The defense... (Score:3, Informative)

    by dlgeek ( 1065796 ) on Thursday May 27, 2010 @07:27PM (#32369982)
    There are 9 justices on the bench...
  • 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 []:
    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
  • I hate the law (Score:2, Informative)

    by Anonymous Coward on Thursday May 27, 2010 @07:34PM (#32370066)

    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, 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.

  • Re:The defense... (Score:3, Informative)

    by Kjella ( 173770 ) on Thursday May 27, 2010 @07:41PM (#32370156) Homepage

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

  • by Anonymous Coward on Thursday May 27, 2010 @07:50PM (#32370250)

    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)

    You have no clue what you're talking about, throwing out nonsensical Latin jargon. Nolle is an actual Latin word meaning "to not be willing," I'll give you that -- but "nonspartis" is nonsense, and so is "willeus" and "tenspartum." Nolle prosequi is a Latin legal term meaning "to not be willing to prosecute" (literally) -- where someone will not pursue further legal action on a case. IANAL, however. You should have saved everyone the trouble and not posted, given that you are clearly no lawyer, either.

  • 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.
  • by 99BottlesOfBeerInMyF ( 813746 ) on Thursday May 27, 2010 @07:57PM (#32370314)

    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.

  • by Rockoon ( 1252108 ) on Thursday May 27, 2010 @08:21PM (#32370548)

    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.

  • Copyrighted and illegal to download are two different things, or more specifically copyrighted + illegal to download doesn't apply to all copyrighted songs. Independent artists and even some major artists release songs for free all the time.

    The existence of a single free to download mainstream song renders the argument that 'all mainstream music is illegal to download' invalid, and there's plenty of songs on torrents that are actually legal to download and listen too.

  • 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 []

    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 [] stocks all of 13 items in Linux software, including, somewhat improbably, Slackware Linux.

    Linux Software []

    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.

  • Re:Eighth Amendment (Score:3, Informative)

    by nabsltd ( 1313397 ) on Thursday May 27, 2010 @10:08PM (#32371288)

    The 8th would only prohibit excessive fines levied by the government.

    Since the government wrote the numbers of "how big can this type of judgement be" into a law, I think a good lawyer could argue that the 8th Amendment applies.

    If the law said the maximum was "$100 per infringed work" or "three times the retail price of the infringed work", then although it still could add up to a lot for multiple infringements, it wouldn't be "cruel and unsual". Instead, the number is $30K per work for non-willful infringement, which is grossly excessive for something that retails for $1 and would add around $0.30 to the copyright holder's pocket.

  • Re:The defense... (Score:1, Informative)

    by Anonymous Coward on Thursday May 27, 2010 @10:55PM (#32371562)

    There's a reasonable party standard at work here.

    If a reasonable party (in practice the court) would assume the work is copyrighted, then you are liable for damages if you copy it.
    If a reasonable party would assume the work is NOT copyrighted, and NEITHER DID YOU, then you have an innocent infringement defense.

    Also note that an innocent infringement defense isn't actually exculpatory. It simply bears on damages.

    So if you violate my copyright, and the court agrees it was innocent infringement, you STILL violated my copyright and are STILL liable for damages. The court will generally reduce the damages in such a case as opposed to willful infringement, but its legally analogous to the difference between murder and manslaughter.

  • 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.

  • Re:The defense... (Score:3, Informative)

    by ThePhilips ( 752041 ) on Friday May 28, 2010 @05:43AM (#32373340) Homepage Journal

    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.

  • Re:The defense... (Score:3, Informative)

    by nine-times ( 778537 ) <> on Friday May 28, 2010 @03:33PM (#32380322) Homepage

    Yes, but I don't need to copy a book to read it, and I do need to copy a webpage to read it. By the time a webpage has reached my eyes, I have probably caused a couple of copies of that page to be created, and therefore I have copied a copyrighted work.

Adding manpower to a late software project makes it later. -- F. Brooks, "The Mythical Man-Month"