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RIAA Foiled By "Innocent Infringement" Defense

timothy posted about 6 years ago | from the country-lawyer-my-butt dept.

The Courts 220

NewYorkCountryLawyer writes "In an interesting development in a Texas case against a college-age defendant who was 16 at the time of the infringement, the Judge has denied the RIAA's summary judgment motion and ordered a trial of the damages — even though the defendant admitted copyright infringement using Kazaa — based on the 'innocent infringement' defense, which could reduce the statutory damages to $200 per song file. Relying on BMG v. Gonzalez (PDF), the reasoning of which I have criticized on the 'innocent infringement' issue, the RIAA argued that Ms. Harper does not qualify for the 'innocent infringement' defense, since CD versions of the songs, sold in stores, have copyright notices on them. In its 15-page decision (PDF) the Harper court rejected that contention, holding that 'a question remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting,' since 'In this case, there were no compact discs with warnings.' Finding that there was a factual issue as to what the defendant knew or didn't know at the time of the infringement, the Court ordered a trial of the damages unless the RIAA agrees to accept $200 — rather than the $750-plus it seeks — per infringed song."

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"I am not a pedofork, YOU DORKS!" (-1, Troll)

Anonymous Coward | about 6 years ago | (#24539765)

http://www.youtube.com/watch?v=jcY20lgr3U8 [youtube.com] @ 7:50
also "I love dykes, Dykes, CHINA!" @ 3:55

This guy is the greatest troll evar, and without trying.

Nigger post! (-1, Troll)

Anonymous Coward | about 6 years ago | (#24539787)

I got nearly the first post just so I could say NIGGER. So there. NIGGER!!

Now mod me down. Hurry up now, someone might see that horrible word.

Re:Nigger post! (-1, Troll)

Anonymous Coward | about 6 years ago | (#24540027)

I got nearly the first post just so I could say NIGGER. So there. NIGGER!!

Now mod me down. Hurry up now, someone might see that horrible word.

Shut da fuk up, craka. Yo ass gonna be in GitMo rea soon nah.

Praise Allah!
-Barack

Under age (4, Informative)

Anonymous Coward | about 6 years ago | (#24539797)

A person under 18 cannot sue or be sued, without a hell of a bunch of oppostion.
We seem to forget that.

Re:Under age (4, Insightful)

philspear (1142299) | about 6 years ago | (#24539965)

The RIAA has never cared about opposition. What are you going to do, continue to not buy CDs from them? Even if they were to announce that for every song stolen, they would kill a puppy in a country where there are no animal cruelty laws, they would still keep doing brisk buisness: the teenagers buying mainstream CDs at walmart don't care about things like that.

Re:Under age (1, Insightful)

JohnnyGTO (102952) | about 6 years ago | (#24540229)

I have honestly refused to buy a cd since all this shit started. If you want to support the artist, go to their concerts, buy their swag or send them cash but for Heavens's sake stop enriching those fat bastards at the RIAA. I don't download music either, I just got XM and settle for that.

Go away, you're not 21 (2, Insightful)

tepples (727027) | about 6 years ago | (#24540285)

If you want to support the artist, go to their concerts

Unless your favorite artist won't play at any all-ages venues near you.

Re:Go away, you're not 21 (4, Funny)

Sebilrazen (870600) | about 6 years ago | (#24540661)

Unless your favorite artist won't play at any all-ages venues near you.

Simple solution to that problem, grow up.

I was going to have some terrible meandering reply about trying to pick up girls/guys their own age, but this is /.

Re:Go away, you're not 21 (5, Funny)

Broken Toys (1198853) | about 6 years ago | (#24540817)

You can't figure out how to get into a rock concert if you're slightly underaged?

Kids today have no imagination whatsoever.

Re:Under age (3, Informative)

ronocdh (906309) | about 6 years ago | (#24540663)

I have honestly refused to buy a cd since all this shit started.

I hope you mean that you've refused to buy any CD published by a label represented by the RIAA [riaa.org] . Otherwise it'd just be stupid.

Re:Under age (0)

Anonymous Coward | about 6 years ago | (#24540201)

Just so everyone knows, AC is wrong (in the US at least). Minors can both sue and be sued just as easily as an adult, they just need the appointment of a guardian ad litem to represent their wishes.

Whether or not there is opposition will depend on the case; I doubt anyone would get bent out of shape over suing a minor for material damages after they vandalize a car, for example.

Re:Under age (-1, Redundant)

Anonymous Coward | about 6 years ago | (#24540825)

Wow US law is perverted!
, What genius of an ass allows Children to sue ?
, I asked my 7 year old
He said
  well I don't like these plaintiff people daddy, , just shoot them
Can we just shoot them? In hearing this His 6 year old playmate said : and I quote
I'll Bus a cap in his ass !!

Children suing in the USA ?
No wonder your countries all screwed up!
What is the major religion and ideology of your so called finest legal minds in the USA ?
  And in that country of origin of your so called best legal minds , what condition is that county in today?
  Probably in some type of war!

 

Re:Under age (1)

Anonymous Coward | about 6 years ago | (#24541341)

Sez who. Kids can be sued in tort. If a seventeen year old gets in a car and mows somebody down accidentally you bet your bottom dollar he's liable in tort. He may be judgment proof, but that's a different issue.

Why don't they sell songs at $200 a pop? (4, Insightful)

pembo13 (770295) | about 6 years ago | (#24539807)

If that is the value, why are they taking such a loss on the sale?

Re:Why don't they sell songs at $200 a pop? (-1, Flamebait)

Anonymous Coward | about 6 years ago | (#24539881)

it's called punitive you cock knob

if you infringe someone's patent or copyright, the law doesn't just require you to pay the value of what you infringed...there needs to be a penalty

Re:Why don't they sell songs at $200 a pop? (4, Insightful)

strabes (1075839) | about 6 years ago | (#24540125)

A penalty is fine, but a 2000% penalty? The percentages aren't that high on anything else...

Re:Why don't they sell songs at $200 a pop? (5, Insightful)

causality (777677) | about 6 years ago | (#24540157)

A penalty is fine, but a 2000% penalty? The percentages aren't that high on anything else...

But, but but this is electronic media! It involves computers and intarwebs and a series of tubes and electrons and stuff, you're supposed to abandon all logic and common sense and instantly enter into Dummy Mode whenever that's the case! Certainly you can't use critical thinking and compare it to the penalties you'd face when dealing with anything else! Why, that might amount to treating IP as though it were like tangible property! Oh, wait...

Re:Why don't they sell songs at $200 a pop? (2, Informative)

Sebilrazen (870600) | about 6 years ago | (#24540723)

A penalty is fine, but a 2000% penalty? The percentages aren't that high on anything else...

It gets worse, it's actually a 20,000% penalty.

Original value = 100% ($.99/song) or ~$1.00
200% = 2 * 100% = ~$2.00
~$20.00 = 2,000%
~$200.00 = 20,000%

Re:Why don't they sell songs at $200 a pop? (3, Insightful)

strabes (1075839) | about 6 years ago | (#24541019)

You're right. 2000% would be a mere $20. Hardly enough to compensate for all the pain caused by downloading a file.

Re:Why don't they sell songs at $200 a pop? (1)

gbjbaanb (229885) | about 6 years ago | (#24540183)

its not, its the value of the loss of sales due to distribution - ie if I use a P2P app and ten people download the song I'm uploading, that's 10x the cost of the song I've cost the RIAA.

At least, that's the excuse for suing for so much. Don't forget the RIAA wants $750 per song, not $200.

Re:Why don't they sell songs at $200 a pop? (4, Insightful)

Tuoqui (1091447) | about 6 years ago | (#24540187)

So they can inflate the piracy numbers. If they sell it at $0.99 they'll be able to claim the other $749.01 as piracy damages. Also known as creative accounting or fraud.

Re:Why don't they sell songs at $200 a pop? (1)

TheRaven64 (641858) | about 6 years ago | (#24540395)

Note that it's $200 per song (actually, per work, as I recall, which might mean per album), not $200 per copy. $200 to produce a song is very cheap.

Copyright violation does not work like other theft (0)

Anonymous Coward | about 6 years ago | (#24541431)

The damages are not the same.

In normal theft the damages are easy to figure out. If I run up to the local grocer and steal a banana the loss is pretty clear. What does 1 banana cost? $10? That $10 is easy to see as the banana is gone and the possible sale is not possible.

If I stole a book from B&N. The damages to the company would be minimal. How much does a book cost nowadays? Maybe $100? Another easy loss to figure out.

But what happens when I put a representation of the book on the line? Say I take this scanner and make a PDF of the book. This time the damages go to the publisher (I think; I do not know how books actually work.) Is it so easy to figure out? How many sales are lost due to my actions?

Anywise, I hate copyright as much as anyone (20 years with a 10 year extension would be my limit--though the Berne Convention kind of prohibits that.) Copyright is for the stupid and uncreative--yet it is helpful as other assholes cannot live off of your work, but the extensions have been done solely to allow that strangely enough. But I do understand there is a difference between stealing a single record and stealing multiple licenses for a record.

I still don't understand (1)

AlphaLop (930759) | about 6 years ago | (#24539811)

How the RIAA can claim that someone downloading a song that could be purchased on Itunes for a buck or two is worth that much money in damages. I am so tired of the government using its power to prop up failed business models.

This at least has a basis (4, Informative)

way2trivial (601132) | about 6 years ago | (#24540013)

it's punitive, and can be reasonable -it is meant to be a deterrent-- it is reasonable to make the financial recompse for a crime more than what the thing is worth at retail

if you shoplift, many state laws allow the store to require recompensation in
excess of the item stolen, this to repay the costs of having the security that the thieves make necassary.

Re:This at least has a basis (5, Insightful)

decoy256 (1335427) | about 6 years ago | (#24540083)

The question is not whether there should be punishment, the question is whether the punishment fits the crime. $200 a song is outrageous (let alone the $750 normally fined). There is a huge difference between punishment and enslavement. This person would have to work forever to pay off this debt. That hardly fits the crime. Make him pay 2, 3, 4 or even 6 times the cost of the song and that would be punishment enough... but 200 times?!? That is unconscionable. The RIAA needs to be taken down a few notches and SHAME on the courts for allowing them to run their racket as long as they have.

Re:This at least has a basis (3, Interesting)

NewYorkCountryLawyer (912032) | about 6 years ago | (#24540107)

The question is not whether there should be punishment, the question is whether the punishment fits the crime. $200 a song is outrageous (let alone the $750 normally fined). There is a huge difference between punishment and enslavement. This person would have to work forever to pay off this debt. That hardly fits the crime. Make him pay 2, 3, 4 or even 6 times the cost of the song and that would be punishment enough... but 200 times?!? That is unconscionable. The RIAA needs to be taken down a few notches and SHAME on the courts for allowing them to run their racket as long as they have.

I agree, decoy. Hopefully, though, the judges are starting to get wise to the fraud that has been put over on them.

Re:This at least has a basis (1, Insightful)

stewbacca (1033764) | about 6 years ago | (#24540175)

something about not being able to do the time comes to mind...

Re:This at least has a basis (5, Insightful)

decoy256 (1335427) | about 6 years ago | (#24540287)

Yes, and something from the Constitution comes to mind... something about cruel and unusual punishment. If you can't be sent to prison for life for shoplifting, why should the RIAA be able to charge you 750 times the sale price (the court was going "easy" on the defendant here by only fining him 200 times the sale price) of their crappy music? Again, read my post... I don't necessarily have a problem with the existence of punishment for these crimes... it is the severity of the punishment that I think is outrageous. You don't see a 20,000% mark-up a little unconscionable?

Re:This at least has a basis (2, Insightful)

stewbacca (1033764) | about 6 years ago | (#24540665)

If you want to posit that seeking $200 in damages for a $1 song is "cruel and unusual" punishment, then we have nothing to discuss, because you are crazy. If I steal something from a grocery store (say a stick of gum) I wouldn't expect to be let of for less than THOUSANDS of dollars. The 8th ammendment also only applies criminal cases. If the RIAA is suing, then it isn't a criminal case. If it IS a criminal case, then the RIAA doesn't get to set the penalty, so stop blaming the RIAA.

Re:This at least has a basis (4, Informative)

decoy256 (1335427) | about 6 years ago | (#24540827)

The 8th ammendment also only applies criminal cases. If the RIAA is suing, then it isn't a criminal case. If it IS a criminal case, then the RIAA doesn't get to set the penalty, so stop blaming the RIAA.

Where did you go to law school?

The 8th amendment applies to government actions. Here, the government action is in establishing the law that permits the RIAA to obtain punitive damages 200 times in excess of any actual damages. If there was no such law, the RIAA would have to prove the justification for punitive damages in every case. But the RIAA paid off a few congressmen and got this sweatheart deal passed through.

The government established a law and that governmental action must be scrutinized under the Constitutional limitations put on Congress, in this case the 8th amendment.

Re:This at least has a basis (1)

stewbacca (1033764) | about 6 years ago | (#24540949)

Please tell me where I made a factual mistake. The 8th ammendment applies to criminal cases, period. If the RIAA is suing, then it is a civil case. If the guy is being prosecuted, then it is a criminal case, and the RIAA has no say in what the penalties are. So yes, the 8th ammendment scrutinizes the government actions (which is exactly what I mean when I say the RIAA is not to blame here, because the RIAA is not the one "supposedly" violating the constitution). Blame the government, blame the law, don't blame the RIAA for following the laws that are in place. If you don't like it, challenge it to the Supreme Court (and good luck with the "cruel and unusua" bit, or even the "excessive fines" bit, because $199 on top of the cost of something is hardly excessive.

Re:This at least has a basis (3, Informative)

decoy256 (1335427) | about 6 years ago | (#24541203)

Please tell me where I made a factual mistake. The 8th ammendment applies to criminal cases, period.

The 8th amendment has not been applied only to criminal cases. In Austin v. United States, 509 U.S. 602 (1993), the Court noted that the application of the excessive fines clause to civil forfeiture did not depend on whether it was a civil or criminal procedure, but rather on whether the forfeiture could be seen as punishment.

In addition, punitive damages are established by the state either through case law or legislation, so regardless of how it is used in civil cases by private parties, it still originates from governmental action and therefore triggers the 8th amendment.

So yes, the 8th ammendment scrutinizes the government actions (which is exactly what I mean when I say the RIAA is not to blame here, because the RIAA is not the one "supposedly" violating the constitution). Blame the government, blame the law, don't blame the RIAA for following the laws that are in place.

Except that it was the RIAA and its lobbyists that got the law on the books in the first place, so I can blame the RIAA.

If you don't like it, challenge it to the Supreme Court (and good luck with the "cruel and unusual" bit, or even the "excessive fines" bit, because $199 on top of the cost of something is hardly excessive.

No, it's $750+, the $200 was the "nice-guy" discount. That is 750 times actual damages. The Supreme Court has previously stated that punitive damages in excess of 4 times actual damages was unconstitutional and has stated in dicta that anything over 10 times is pretty much automatically unconstitutional

Here, you have the RIAA getting legislation that permits punitive damages in excess of 750 times actual damages. And you're going to tell me that the RIAA is innocent in this travesty? I think not.

Re:This at least has a basis (1)

Yvan256 (722131) | about 6 years ago | (#24540179)

Especially since people who download tunes don't stop at one tune.
  Let's say 100 tunes x 4$ = 400$. That's not something you can easily push aside as being "outrageous" or "taking forever to pay back" even for low-income people (even if it takes, say, 8 months to pay it all).

Even at four times the iTunes cost (4x1$), it could cost a lot pretty quickly. And slashdotters wouldn't be so mad at the RIAA, I suppose (a fine of 400% would be a reasonable punishment, especially compared to 2000% or even 7500%).

Re:This at least has a basis (1)

decoy256 (1335427) | about 6 years ago | (#24540305)

Thank you, that is exactly my point. If this guy download 1 CD worth of songs (10 songs), they are going to fine him $2,000 dollars. That is pretty darn steep. But more than likely, he downloaded more than just 1 CD worth... he probably download 10 or 50 or 100 CDs worth. So he's looking at maybe $200,000 in fines. The RIAA should not have that kind of power... no one should.

well now.... (3, Interesting)

way2trivial (601132) | about 6 years ago | (#24540275)

200 times might be pretty severe, but $200 as a minimum amount is not.

Let's put it this way.
for one song- what do you expect would be the minimum legal costs to the RIAA to track you down?
a lawyer, writing a subpeona, filing it, and contacting the ISP, and contacting the individual.

that would be a reasonable minimum per user who is downloading songs.

this has nothing to do with RIAA tactics vs. B&M stores-- it's about allowing a reasonable recovery of costs..

so lets say- 1500 -2500 (we are talking about a national search, not limited to the interior of one store) for cost recovery- not per song-- but per person/IP tracked down.
Remember- they are using lawyers, not LP (loss prevention) security guard types--

then we tack on damages as well.

what do you estimate the RIAA's damages for one song to be?

at some point, you have to acknowledge that breaking the law has consequences, and people who own property are entitled to recovery of costs in protecting their property.

I haven't had a run in with the **AA's I have had experience with youthful offender civil crimes.. personal experience and knowledge of the experience of others.

and a little shoplifting can easily cost a few grand.....

Re:well now.... (3, Informative)

decoy256 (1335427) | about 6 years ago | (#24540351)

No, sir, it is $200 PER SONG and that's if you get the "innocent infringement" defense. Otherwise it will be $750 PER SONG. In addition, the RIAA does not go after someone for downloading 1 song... they go after someone who has downloaded probably thousands of songs. The total fines can easily reach $1 million or more. That is unconscionable in my book.

in this case, (1)

way2trivial (601132) | about 6 years ago | (#24541283)

apparently they went after someone sharing 39 songs
http://yro.slashdot.org/comments.pl?sid=641131&cid=24539829 [slashdot.org]

I don't disagree that 1 million is reasonable against an individual
  -- but I ask you/others to consider

What is reasonable?

there are two prongs to the penalty.
1- to recover costs of protecting intellectual property, make whole the damaged party.

2- to punish those who broke the law-- as a deterrent to others.

I have downloaded in the past large #'s of songs.. I don't do it anymore-- not because music is crap, not because I'm afraid of the RIAA
but I've realized, it's just wrong....

Re:This at least has a basis (1)

dirk (87083) | about 6 years ago | (#24540555)

The reason most people think the fines are unreasonable is they think of them in terms of what it costs to buy a song. The mistake though is that this isn't about a person downloading a song that they don't have the right to have a copy of, but it's about a person distributing a song they don't have the rights to distribute. You can't base the fine on what it costs to buy a song but what it would cost to have the rights to distribute the song. If I went to the RIAA (well technically to the label) and asked what it would cost for me have the rights to allow anyone who visits my website to download a copy of that song, what do you think it would cost (assuming they even would agree to it)? That is what the fine is (and should be) based on. It's not the cost of purchasing a song, but of distributing the song.

Re:This at least has a basis (1)

decoy256 (1335427) | about 6 years ago | (#24540713)

Except that is not what the legislation fines you for... it fines you for downloading the songs, not for distributing them. And that is not what this individual is being fined for.

Re:This at least has a basis (1)

Darundal (891860) | about 6 years ago | (#24541427)

Yeah, but the $750+ penalty was mandated because the damages from the distribution were too hard to calculate (the idea there being that they are holding person A responsible for the downloading of B and C, plus whoever downloads from them, and so on, and so on). The fine is based on the idea that if you downloaded, you probably distributed too.

Re:This at least has a basis (1)

Hope Thelps (322083) | about 6 years ago | (#24540417)

it is reasonable to make the financial recompse for a crime more than what the thing is worth at retail

Although there are circumstances in which copyright infringement can amount to a crime, nobody has alleged that such is the case here. This is a purely civil matter.

Re:I still don't understand (4, Insightful)

philspear (1142299) | about 6 years ago | (#24540043)

It's not the government using it's power to prop up a failed buisness model. This is the RIAA using the legal system to try to prop up their diminishing buisness by bullying people who share music.

There are certainly some people in government who are sympathetic to the RIAA because of legal bribes in the form of lobbyists and campaign contributions, but that's not the whole government and in this instance, the biggest government involvement is that the legal system is being used by the RIAA.

What you're talking about would be if the government subsidized the RIAA's DRM attempts or things like that. Maybe they do that already, I don't know, but this isn't that.

Anyway, as to why it's so much, it's because sharing music is actually illegal (note that I am not saying it should be or that the RIAA has morality on their side or their tactics are justified, or even that they shouldn't all be shot). It's like asking why tickets for possession of pot are so high. You're not causing any damage to anyone, the fines don't make sense in that reguard.

The only answer is because it's illegal and in many cases, some people have interests in seeing the law enforced even when there's no real benefit to society in it. They fine you for posession because it's illegal, they don't think they like pot smokers, and they can.

Re:I still don't understand (4, Interesting)

causality (777677) | about 6 years ago | (#24540127)

It's not the government using it's power to prop up a failed buisness model. This is the RIAA using the legal system to try to prop up their diminishing buisness by bullying people who share music.

There are certainly some people in government who are sympathetic to the RIAA because of legal bribes in the form of lobbyists and campaign contributions, but that's not the whole government and in this instance, the biggest government involvement is that the legal system is being used by the RIAA.

What you're talking about would be if the government subsidized the RIAA's DRM attempts or things like that. Maybe they do that already, I don't know, but this isn't that.

The perception occurs because anytime the RIAA/MPAA asks for tougher, more punitive copyright laws, they get what they ask for with little or no opposition. I doubt very strongly that any of the Congresscritters who pass such laws are under the illusion that the RIAA/MPAA have no intention of using them. So, directly like what you describe or indirectly, the government has been their best friend for some time now when it comes to delaying the inevitable. The inevitable, of course, is that eventually there will be little or no need for a middleman like the record companies to control distribution, at which point the RIAA/MPAA's current business model is fully obsolete. What will replace it? I could speculate but I don't really know. I do know that I'd like to find out; I honestly believe that the finest music in the world isn't worth the corruption and the intimidation and the persecution that the *AAs have perpetrated in the name of their financial interests.

Re:I still don't understand (5, Insightful)

strabes (1075839) | about 6 years ago | (#24540143)

By definition any industry that needs a subsidy is a "failed business model," except that it hasn't failed yet because there are government subsidies. (example: US farms - although they would probably not fail, they'd just have to innovate instead of get paid to not grow anything).

Poor RIAA... (1)

m3j00 (606453) | about 6 years ago | (#24539821)

I guess they'll have to settle for a 20,000% markup on the songs instead of the desired 75,000%

this should end someday (1)

jacquesm (154384) | about 6 years ago | (#24539823)

With the riaa being able to claim actual damages for each song that got provably copied between two people that did not have an existing prior relationship (because then their regular levies apply). That's a pretty tall hurdle.

Anything less than that and the consequences will be more than you could possibly imagine.

You're not a good writer. (1, Insightful)

Anonymous Coward | about 6 years ago | (#24539847)

Your first sentence is not a complete sentence at all. Your second one is a little better. Your third one appears completely out of context (i.e. less than what? what consequences?) probably because you botched the first sentence so badly. So, what the hell are you saying? Try again, this time while making sense. Thank you.

Petty, trigger-happy mods (-1, Offtopic)

Anonymous Coward | about 6 years ago | (#24539901)

To the trigger-happy mods, it was an honest inquiry. I truly do not know what jacquesm was trying to say. If I see green grass, I am not going to pretend it is blue to suit someone else. When I see writing that isn't very good, I am not going to say it's great and pretend like I know what the guy is saying when I don't. Asking someone to clarify is not trolling. No wonder I see so many shitty moderations, if this is what people are willing to waste modpoints on. This is why I am downright harsh when metamoderating. If I can find even the slightest reason for it, I mark "Flamebait", "Troll", and "Off-Topic" moderations as "Unfair" because I'm tired of it.

Re:Petty, trigger-happy mods (-1, Troll)

Anonymous Coward | about 6 years ago | (#24539977)

Oh no, more fagdot cock grabbers decide to post someone offtopic for bitching about people wasting their mod points on inconsequential posts. What is the fucking deal? There's no reason to have modded the first AC as a troll for an honest inquiry, and second, there was no need to have modded further posts from the same? AC as offtopic. However, if you fuckwits enjoy wasting your mod points on stupid shit, please mod this down too. The less points you morons have to use on legitimate shit, the better off the community will be. It's clear you lack the necessary intelligence to use your mod points wisely.

Everything you don't like is Offtopic or Troll (-1, Troll)

Anonymous Coward | about 6 years ago | (#24540039)

I love you. In a manly heterosexual type of way, of course. Now someone will decide they don't like this, which will automatically make it Flamebait or Offtopic or Troll, of course. You have to feel sorry for these petty little twerps who are so pathetic and powerless and weak in their own lives that they abuse Slashdot moderation points to feel better about themselves. Hell, I'm doing a public service to Slashdot by depriving shitty moderators of their modpoints before they go and use them on someone who's not posting anonymously.

Re:Everything you don't like is Offtopic or Troll (0)

Anonymous Coward | about 6 years ago | (#24540165)

They must believe we're trolling at a 12th grade level to already have had four of them waste mod points on us. I'm not sure these boobs understand what real trolling is.

Re:Everything you don't like is Offtopic or Troll (0)

Anonymous Coward | about 6 years ago | (#24540357)

I think they understand just fine. They're just cowards who feel brave now that they finally have a way to affect another person with impunity, albeit in an entirely negligible way. It's funny really. The person who mods this down will read it and know that it's true, but they'll still mod it down anyway. Probably _because_ they know it's true and are upset with me for pointing out just how pathetic they must be to perpetrate such a waste of perfectly good mod points. Besides, 12th grade is probably well beyond the literacy level of anyone who would bother modding down this entire thread.

Re:Everything you don't like is Offtopic or Troll (0)

Anonymous Coward | about 6 years ago | (#24540515)

The only thing missing from this thread...

...is the NECROTIC DOG PENIS!!!111



nurrrrrrrrrrrrrrrrrrrrr

Re:You're not a good writer. (3, Interesting)

jacquesm (154384) | about 6 years ago | (#24540099)

let me try again, sorry, it's late and I'm tired :)

The RIAA is claiming far more then the actual damage for copying a single song (this has happened many times), imagine the owner of a car being able to claim damages 10 fold or 100 fold to the value of the item stolen or damaged.

Then there's the fact they seem to be able to do so on the *possibility* of infringement, without being held to any substantial burden of proof that an infringement actually took place.

I can't even come up with a good real world analogy to that, but it's clearly bogus.

The only way I can see this end is when the RIAA or whatever agency is the one to go after infringement is able to prove conclusively:

"That two people that have not had prior contact infringed" (otherwise it's covered under various blank media levies)

Technically that's a pretty tall hurdle to cross (it can really only be proven by knowing a lot about the parties and by sniffing the traffic), if they get away with establishing a lesser standard then all kinds of parties with claims as superficial as the RIAA's will suddenly think they have a case and may be able to use the RIAA's cases as precedent.

Better now ?

j.

Re:You're not a good writer. (0)

Anonymous Coward | about 6 years ago | (#24540341)

It's a civil case. Any lawyers can correct me if I'm wrong, but I believe the burden of proof in these cases is only a preponderance of the evidence.

I'm not saying they've proven their case, but it really shouldn't take much to prove their case unless the defense actually has a defense. I'm guessing that in most cases their defenses are pretty weak.

Re:You're not a good writer. (1)

jacquesm (154384) | about 6 years ago | (#24540413)

except that me saying you could have stolen my stuff is not much of an offence at all. And that's the level at which the current cases are being waged, there literally is NO PROOF of infringement in the traditional sense (I have proof because I have a copy that you have distributed to some third party that had no business having it).

That's the whole problem with these cases. At a minimum there should be two parties to a transaction, not one potential and a party that already had the rights.

"making available" (4, Interesting)

l2718 (514756) | about 6 years ago | (#24539829)

It seems comments don't carry over from the firehose posting?

In any case, in addition to the (partial) win on the damages, the girl lost an argument with much wider implications. Her laywer tried to argue that only for the files the RIAA's investigator actually downloaded was there actual evidence for infringement (these were 6 among 39 song she's being sued over). Oddly the lawyer didn't argue that downloading by the RIAA can't be infringement by definition. The court instead agreed with the RIAA that merely making a file available was sufficient to establish infringement. This will now give the RIAA further ammunition when the continue using the argument.

Re:"making available" (1)

Volante3192 (953645) | about 6 years ago | (#24539911)

The court instead agreed with the RIAA that merely making a file available was sufficient to establish infringement. This will now give the RIAA further ammunition when the continue using the argument.

And when the defense brings up Atlantic v. Howell, we can hope that even the 'making available' bit goes away.

too late (1)

l2718 (514756) | about 6 years ago | (#24540001)

And when the defense brings up Atlantic v. Howell, we can hope that even the 'making available' bit goes away.

It's too late for the defense to raise new sources: the court has already ruled on this dispute. If they wanted to cite Atlantic v. Howell they should have done it already. Now the judge says that since it was agreed that files were "made available", infringement has already been established and all that remains is to decide on the damages. This is really serious -- the problem is the reverse of what you claim. Now whenever a defendants will cite Atlantic v. Howell, the RIAA will cite Maverick v. Harper in return.

Re:too late (3, Interesting)

NewYorkCountryLawyer (912032) | about 6 years ago | (#24540059)

And when the defense brings up Atlantic v. Howell, we can hope that even the 'making available' bit goes away.

It's too late for the defense to raise new sources: the court has already ruled on this dispute. If they wanted to cite Atlantic v. Howell they should have done it already. Now the judge says that since it was agreed that files were "made available", infringement has already been established and all that remains is to decide on the damages. This is really serious -- the problem is the reverse of what you claim. Now whenever a defendants will cite Atlantic v. Howell, the RIAA will cite Maverick v. Harper in return.

I don't think it's as serious as all that. But I can't go into detail, wouldn't want to tip my hand. The RIAA is not celebrating this decision; believe me.

Re:too late (2, Funny)

rts008 (812749) | about 6 years ago | (#24540189)

Well, when you do tip your hand I hope that the RIAA feels properly violated in a most uncomfortable fashion.
With your history here, I expect you will share the joy with us.

Keep fighting the good fight for us Ray, your efforts leave me all warm and fuzzy inside! :)

Re:too late (3, Interesting)

NewYorkCountryLawyer (912032) | about 6 years ago | (#24540245)

Well, when you do tip your hand I hope that the RIAA feels properly violated in a most uncomfortable fashion. With your history here, I expect you will share the joy with us. Keep fighting the good fight for us Ray, your efforts leave me all warm and fuzzy inside! :)

I have a hunch the RIAA's going to take their $200 and run. They don't want to be around when this judge figures out he's been sold a bill of goods.

Re:too late (1)

rts008 (812749) | about 6 years ago | (#24540393)

When the judge figures it out, can he/she do anything about it? (obviously IANAL, armchair or real!)

Re:too late (4, Interesting)

NewYorkCountryLawyer (912032) | about 6 years ago | (#24540547)

When the judge figures it out, can he/she do anything about it?

Yes.

The real question is whether the judge will find out about it. If the case gets closed out now, he may never find out about it. If the case goes to trial, he likely will find out about it.

Re:too late (1)

rts008 (812749) | about 6 years ago | (#24540745)

Ahh...I see where this could get tricky.

Thanks for the reply.

Re:too late (2, Interesting)

Andy_R (114137) | about 6 years ago | (#24540943)

"The real question is whether the judge will find out about it."

Ok, stupidly obvious question here, but I suspect the reply might give some interesting insight into the US legal system...

Why doesn't someone simply tell the judge about it?

Re:too late (2, Informative)

NewYorkCountryLawyer (912032) | about 6 years ago | (#24541035)

Why doesn't someone simply tell the judge about it?

Defendant is represented by counsel. I'm sure her counsel will tell the judge about it, if it comes up. If the RIAA takes the judge's offer, though, it might not come up.

Re:"making available" (1, Interesting)

Anonymous Coward | about 6 years ago | (#24540111)

RIAA investigators? In Texas? Didn't a Texas judge forbid the "RIAA investigators" from operating in Texas without a private investigator license? Did they finally get licensed in Texas or are they in violation of Texas state law and a court order?

Re:"making available" (1)

Tim C (15259) | about 6 years ago | (#24540129)

Oddly the lawyer didn't argue that downloading by the RIAA can't be infringement by definition.

Well the girl wasn't authorised to distribute the songs, so surely it doesn't matter who she distributed them to?

Re:"making available" (2, Insightful)

gnasher719 (869701) | about 6 years ago | (#24540161)

Well the girl wasn't authorised to distribute the songs, so surely it doesn't matter who she distributed them to?

Well, if the copyright holder himself asks you for a copy, or an authorised agent of the copyright holder, then it surely is authorised.

If Bill Gates' laptop crashes and he needs a new copy of the OS, you can give him your copy to install it. That is as long as he uses Linux or Windows, not if its MacOS X :-)

Re:"making available" (1)

Darkness404 (1287218) | about 6 years ago | (#24540219)

How isn't it important? In the physical world, if you burn a CD and give it to the bands that made the CD it isn't infringement, as long as you legally bough the CD. And the RIAA isn't suing for downloading.

Re:"making available" (0)

Anonymous Coward | about 6 years ago | (#24540267)

Read this post/thread>/a>.

No "so surely" in law (0)

Anonymous Coward | about 6 years ago | (#24540407)

Read here. [slashdot.org]

Don't forget... (1, Funny)

Anonymous Coward | about 6 years ago | (#24539845)

and that mangy mutt.

Innocent? It could happen... (4, Insightful)

Channard (693317) | about 6 years ago | (#24539873)

.. because, leaving aside all the RIAA's bullshit for a minute, I've had a couple of people in my store who thought they could legally download music. Most people just go.. 'yeah, everyone does it..' - but these people bought Kazaa or Audiogalaxy or something for thirty quid and thought that gave them the right down to download music for free. They seemed genuinely surprised when I explained it.

Sure, easy to see (4, Insightful)

Sycraft-fu (314770) | about 6 years ago | (#24540049)

I mean most people think, and correctly so in most cases, that if you pay for something, that means it is legal for you to use/have it. Whatever the seller wishes to charge is their business. If you pay what they asked, then the deal is done. If they want to give you a good deal, that's up to them and there is, as they say on the playground "No take backs." If the seller realizes after the sale they sold it for less then they wanted to, too bad.

So it is easy to see how people, especially those who are up on technical news, could be fooled. I remember getting a call from my mom about buying the Adobe Creative Suite. She was searching online to see if she could get a better price, since it is very expensive. Well, she found a place that indeed had a MUCH better price. Now she's pretty clever and realized that it sounded too good. Well, sure as shit, the site was selling pirated software. However, it is easy to see how someone might be fooled. After all, I've got some smoking deals on all kinds of products in a quite legitimate manner. People might figure this is just the same thing.

So it is quite easy to see how someone might download music and perfectly well believe they were not breaking the law.

Re:Sure, easy to see (5, Interesting)

NewYorkCountryLawyer (912032) | about 6 years ago | (#24540087)

I mean most people think, and correctly so in most cases, that if you pay for something, that means it is legal for you to use/have it.

That is so true. I remember a 'cable descrambler' case that occurred about 10 years ago. A guy bought this thing in a big chain electronics store; it was the featured item on display in the front of the store; it cost a small fortune, about 2 or 3 times what a VCR cost at the time; he assumed there was some kind of license fee built into it.

Apparently, there wasn't.

Re:Sure, easy to see (3, Interesting)

Belial6 (794905) | about 6 years ago | (#24540409)

Sure, 'legitimate' businesses are constantly telling people that not only can they get things for very cheap, but that they can get things for "Free". How many offers have you received for a product that said it was "Free". Sure, there is always a catch that leads you to pay money. For example "buy one, get one FREE!". But, the companies that offer things like this, know that most people don't understand money well enough to understand that the object isn't really free. So, if you can get a "Free" cell phone, and "Free" groceries, and "Free" HBO, why wouldn't people think that they can get "Free" music.

In fact, companies like Coke, Pepsi, and AOL have spent millions advertising that you can get "Free" music, and it is not uncommon for bands to actually host tracks online that really are free (not just called free). It is perfectly reasonable for people to think that downloading music is legal.

Re:Innocent? It could happen... (1)

Darkness404 (1287218) | about 6 years ago | (#24540253)

Exactly. Just like if I buy pirated software, more often not I am treated as some kind of victim (now, not sure how I would be a victim because I got working software at a decent price, but now the makers want to take that away...)

$200 a song.. (2, Insightful)

Anonymous Coward | about 6 years ago | (#24539893)

$200 dollars a song is still eff'in outrageous I can't fathom how they're allowed to charge hundreds of times more than retail price. The guy could walk up to a BMW, bash the windows in and pay less.

I'm not sure I buy it (2, Interesting)

Anonymous Coward | about 6 years ago | (#24539899)

When I was 16 and downloading music from napster, kazaa, or whatever other service was hot at the moment I knew that it was illegal. If I'd have ever been caught and brought to trial (although unlikely as they hadn't started using such intimidation tactics yet.) I would have probably claimed the exact same thing.

Of course it's possible that if someone doesn't have a decent understanding of how the software works, it's plausible that a person could honestly be ignorant, but for anyone who frequents slashdot or has any small amount of knowledge about computers probably knows better.

Of course this never really stopped any of us from doing it. The price was free and most of us had little or no disposable income at the time. Now that I'm older and actually have money of my own I don't bother pirating music. There are plenty of places online where I can listen to it free of charge if I want and decide whether or not I'd like to buy it from iTunes, Amazon, or preferably from the band's website.

Interestingly enough, since I started getting music online, I've never purchased a CD from a store again. In fact the only CD's that I've purchased at all since high school have been from bands if I go to a concert and enjoyed it enough to buy at $10 CD. I can understand keeping physical media around for people who don't want to get their music digitally, but for as much as the RIAA has been fighting online distribution they may have been significantly more successful if there had been an iTunes-like service around when I was in high school that had a good selection at a fair price.

Most people will do the right thing if you give them to opportunity to do so, but if there's only one song off of a CD that a kid wanted, they weren't about to spend $15 on it.

Re:I'm not sure I buy it (1)

Slashdot Suxxors (1207082) | about 6 years ago | (#24539961)

When I was 16 and downloading music from napster, kazaa, or whatever other service was hot at the moment I knew that it was illegal.

Yes, but you're not the average joe. Average Joe's don't read Slashdot. (Or average jane in this case.)

Re:I'm not sure I buy it (2, Insightful)

gnasher719 (869701) | about 6 years ago | (#24540241)

Of course it's possible that if someone doesn't have a decent understanding of how the software works, it's plausible that a person could honestly be ignorant, but for anyone who frequents slashdot or has any small amount of knowledge about computers probably knows better.

I have seen advertisements for software that really did sound as if you could download millions of songs legally (that's what it advertised: Download millions of songs legally). Maybe a lawyer with a very suspicious mind would have figured it out just by reading the advert, I figured it out because I _know_ there are no millions of songs that you can get legally and for free and therefore knew what words to look for in the advert, but to anyone who doesn't know about that subject it looked totally genuine. I thought it was disgusting.

If you download music illegally, and you know what you're doing, that's fine with me; you know the risk, you take your chances. But that kind of advert could get someone into deepest trouble who doesn't have the slightest idea they are doing anything wrong.

Innocence vs Ignorance (4, Informative)

Nymz (905908) | about 6 years ago | (#24539941)

Innocent Infringement is an exception made for people that deal with media, like schools, libraries, radio, and tv. If someone acts in accordance with the law, every day, then we aren't going to consider them a criminal because of a single accident. Someone doing nothing but copyright infringement, doesn't qualify under the innocent infringement exception, but is instead ignorant of the law. Whether copyright law is just, or needs updating for the 21st century is another matter.

Re:Innocence vs Ignorance (1)

kaos07 (1113443) | about 6 years ago | (#24540339)

No, this isn't an "Ignorance of the law" argument. Well that really isn't an argument anyway, I don't think their lawyer would be dumb enough to run it. The thing with copyright is that it's only a "infringement" if the item is indeed under copyright and it's labelled as such. If it isn't labelled how is the person to know whether or not it's under copyright? This is what is being argued here. The defendant saying "It was innocent infringement because whilst I accept downloading the songs I didn't know they were under copyright".

Notice of Copyright 1989 (1)

Nymz (905908) | about 6 years ago | (#24540675)

The thing with copyright is that it's only a "infringement" if the item is indeed under copyright and it's labelled as such.

The 'Notice of Copyright' requirement was eliminated in 1989. (sarcasm on) I guess you weren't ignorant of this fact, but simply innocent of it. (sarcasm off)

Re:Notice of Copyright 1989 (1)

kaos07 (1113443) | about 6 years ago | (#24540849)

Then what the hell is the defence argument based on?

Re:Notice of Copyright 1989 (1)

praksys (246544) | about 6 years ago | (#24541257)

Some uses of copyrighted works are illegal,unless you have permission, some uses are legal, even without permission (fair use etc). Ignorance about which uses are legal is ignorance about the law, and ignorance of the law is not an acceptable defense.

Some songs are copyrighted, some are not. Ignorance about whether a song is copyrighted is ignorance about a matter of fact, and ignorance of fact is often an acceptable defense, or at least a mitigating circumstance.

Re:Notice of Copyright 1989 (1)

kaos07 (1113443) | about 6 years ago | (#24541349)

That was exactly my point and the guy who replied apparently shot that down...

The Big Picture (2, Insightful)

Nymz (905908) | about 6 years ago | (#24541361)

Answering your question requires understanding of 'The Small Picture', which can only be understood in relation to 'The Big Picture'.

The Big Picture:
The idea of copyright is a societal agreement with creators, as a fair method to pay them for contributing to society. Over time, our environment has changed, and the old copyright paradigm is an ill fit for today, and so great is the ill-fitting-ness that a large section of society chooses to ignore it to some extent. Until such a day that we as a society create a new copyright paradigm, that most of us will agree to honor, then we will have lots of legal battles.

The Small Picture:
In a legal battle, the simple footsoldier known as a lawyer is not necessarily motivated to make the world a better place, but is motivated to defend his client, be they innocent or guilty. With success defined in such a way, a lawyer may sacrifice less valued big ideals, in order to achieve higher valued small wins.

Your Answer:
A lawyer may take laws and legal rules to their extremes, like a competitive athlete may take their training to extremes, but at those extremes are gray areas. Gray areas like the difference between supplements and steroids, or plausible deniability like claiming the guy injecting you said "it was just an all-natural supplement" so how could you have known. In this case, the "Innocent Infringement" idea is being stretched, and twisted, in hopes that it might just work well enough to help his client.

Re:The Big Picture (1)

kaos07 (1113443) | about 6 years ago | (#24541453)

Righto, thanks.

Moral of the story: Copyright law in the US is fucked.

What is "innocent infringement"? (4, Interesting)

d_jedi (773213) | about 6 years ago | (#24539949)

IANAA (not an American :->) and IANAL, so I don't know what this concept is.

Re:What is "innocent infringement"? (2, Informative)

Fumus (1258966) | about 6 years ago | (#24540195)

JFGI.

Copyright infringement is the violation of any exclusive right held by the copyright owner. Infringement may be intentional or unintentional. Often called "innocent infringement," unintentional infringement occurs when an author creates an ostensibly new work that later proves to be a mere reproduction of an existing work, though the author was unaware of the identity between the two at the time the copy was made. For example, former Beatle musician George Harrison was guilty of innocent infringement when he released the song "My Sweet Lord," which a court found was the same song as the Chiffons' "He's So Fine," only with different words. The court said that Harrison had "subconsciously" borrowed the Chiffons' unique motif.

Re:What is "innocent infringement"? (1)

Kjella (173770) | about 6 years ago | (#24540259)

If you are or should be aware that you're infringing copyright it's 750-150000$ per work, if you're not it's 200-30000$. Since it's a liability issue, the reasoning is that even if you weren't aware you were breaking any copyright, the copyright holder has still suffered damage and must be compensated. Of course, since they cost 99 cents at iTunes any such logic is out the window.

She can't make legal downloads now? (3, Interesting)

whoever57 (658626) | about 6 years ago | (#24539979)

including without limitation by using the internet or any online media distribution system to reproduce (i.e., download) any of Plaintiffs' Recordings,

This looks like an injunction against the use of iTMS or any other online music store. Am I reading this correctly?

$200 per song! My the inflation... (2, Funny)

Anonymous Coward | about 6 years ago | (#24540113)

It seems inflation has taken a huge toll in media prices in USA. You can buy a whole cd here for $10, usually with 20-40 songs. That means you pay around 50 cents per song. If the song price is $200 in USA, I don't wonder you guys prefer to pirate, with CD prices probably being around $4000 USD.

RIAA foiled? Hardly! (5, Funny)

syousef (465911) | about 6 years ago | (#24540629)

The difference between $200/song and $750/song goes something like this.

RIAA: She knew what she was doing.
Ms Harper: No I didn't. I was 16 and everyone was doing it.
Judge: Okay, I'll accept that. You'll have to take her house, her parent's house and her car as damages, but she can keep the shirt on her back.
RIAA: But your honour, it's a lovely purple coloured silk shirt, and she really did know what she was doing.
Judge: No. She can keep her shirt. Let that be a lesson to you RIAA.

Re:RIAA foiled? Hardly! (0)

Anonymous Coward | about 6 years ago | (#24540667)

I wanted to mod this up, but the RIAA took my points after I downloaded Garrison Keillor's Songs of Cats.

lol (2)

dodgedodge (166122) | about 6 years ago | (#24541359)

only you could call $750 to $200 per song "foiled". nothing like spinning.

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