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"Innocent Infringement" Defense May Reach Supreme Court

timothy posted more than 4 years ago | from the or-it-might-get-kicked-from-the-stoop dept.

Music 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."

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First... (1)

vikingpower (768921) | more than 4 years ago | (#32369800)

...subpoena ??

Hmmmmm, you really gotta wonder... (2, Insightful)

3seas (184403) | more than 4 years ago | (#32369802)

...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 m (1)

Joe The Dragon (967727) | more than 4 years ago | (#32369864)

how about when same thing changes licenses terms many times.

Re:how about when same thing changes licenses term (5, Insightful)

3seas (184403) | more than 4 years ago | (#32370214)

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.

Not an unreasonable assumption to make (3, Informative)

westlake (615356) | more than 4 years ago | (#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.

Re:Hmmmmm, you really gotta wonder... (0)

Anonymous Coward | more than 4 years ago | (#32370352)

Doesn't matter, really. Licenses _can't_ automatically apply to you, they require some "agreement" on your part (more on this below). Since the _default_ conditions for a copyrighted work (absent a license) are "all rights reserved", i.e. no copying (except as excepted, e.g. fair use) is permitted unless you agree to a license authorizing such copying. You can't claim additional rights unless you have seen and agreed to some specific permissive license -- any licenses you haven't seen are irrelevant, since you can't possibly have agreed to them. Any restrictive licenses are likewise valid only if you have seen and agreed to them...

Permissive licenses (such as the GPL, or any other open-source license) that let you copy in ways not permitted by "all rights reserved" may be presumed agreed to by such copying -- after all, you either agreed to the license (and are bound by its terms) or didn't (and are infringing by copying).

Restrictive licenses (such as innumerable EULAs) are more tricky -- if you don't agree, you get to do things (e.g. reverse engineering (at least where such is legal -- DMCA bans all general-purpose computers, so let's ignore it)) that would be forbidden if you agree. Whether such things clicking "accept" on a sneakwrap EULA do in fact constitute legal agreement is murky at present -- certainly if they are valid, it seems you'd still be permitted to do reverse engineering on the original installer, bypass the agree-to-my-EULA-or-quit screen, and then install the software without ever seeing or agreeing to the EULA.

The only question with music is ordinarily whether it's copyrighted, because music companies can't push a EULA at you through most media. It's possible that music is released on one disk as "all rights reserved", and on another with, say, a creative commons license -- in such case, it does legally matter which you copy from (even if the tracks are bit-for-bit identical), but unless they can show evidence you've copied from the wrong one, you're fine. I suppose malicious or ignorant suing is possible (wouldn't be the first time one end of a corporation didn't know what the other end was doing), and you might have to provide evidence that they did release it under CC if they denied it, but given factual knowledge of their releases, it's not complicated.

And that, kids.... (1)

Techranman (1352375) | more than 4 years ago | (#32369808)

It seems like copyright notices on CDs and those damn unstoppable and horrendous notices during DVD previews are just preaching to the choir. However, I am glad there are some people working to return sanity to the penalties of the RIAA.

Re:And that, kids.... (1)

h4rr4r (612664) | more than 4 years ago | (#32370570)

Use a better DVD player, $20 chinese ones will skip that crap, so will any competent DVD player software on an HTPC.

The defense... (5, Insightful)

girlintraining (1395911) | more than 4 years ago | (#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:The defense... (2, Informative)

dlgeek (1065796) | more than 4 years ago | (#32369982)

There are 9 justices on the bench...

Re:The defense... (2, Informative)

Kjella (173770) | more than 4 years ago | (#32370156)

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

Re:The defense... (1)

Wyatt Earp (1029) | more than 4 years ago | (#32370354)

Thats fine, but the poster was correct, there are nine members of the Supreme Court.

From your own link - Chief Justice John Roberts, who participated in the case while serving on the DC Circuit Court of Appeals, did not take part in the decision.

Re:The defense... (1)

dlgeek (1065796) | more than 4 years ago | (#32370872)

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:The defense... (0)

Anonymous Coward | more than 4 years ago | (#32370254)

$1.92million dollars in damages, originally. American law is truly broken. Whatever democratic purpose it was supposed to serve, has been utterly undermined. If I was a "politician of the people" I'd be inclined to start holding my own courts, even if the judgment couldn't be enforced immediately.

No sign, no crime? (0, Troll)

nephilimsd (936642) | more than 4 years ago | (#32369898)

Well, I didn't see a sign in the store telling me it was illegal to steal stuff...

Re:No sign, no crime? (0, Funny)

Anonymous Coward | more than 4 years ago | (#32369984)

Nice logic work there, chief. Except that it isn't - you moronic sack of crap.

Re:No sign, no crime? (0, Interesting)

Anonymous Coward | more than 4 years ago | (#32370020)

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)

Re:No sign, no crime? (4, Informative)

Anonymous Coward | more than 4 years ago | (#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.

Re:No sign, no crime? (1)

meerling (1487879) | more than 4 years ago | (#32370340)

imo legalese is nonsense, even when they (mis)use common english words

Re:No sign, no crime? (1)

quickOnTheUptake (1450889) | more than 4 years ago | (#32370950)

The question is who modded him to +5.
My sig gets truer every day.

Re:No sign, no crime? (1)

djconrad (1413667) | more than 4 years ago | (#32371282)

Yep. My Black's Law Dictionary has two entries for nolle prosequi: a notice a suit has been abandoned, and the action taken in order to abandon a suit. None of the AC's terms occur in my dictionary.

Re:No sign, no crime? (3, Funny)

Ihmhi (1206036) | more than 4 years ago | (#32370454)

The RIAA can lick my scrotus humungous.

My Sweet Lord (3, Interesting)

tepples (727027) | more than 4 years ago | (#32370590)

Copyright infringement, at least in the US, is a crime willeus tenspartum, which means "willingness demostrated" (roughly), in other words, you have to intend to commit the crime.

Then explain the million-dollar verdict against George Harrison in Bright Tunes Music v. Harrisongs Music, in which George Harrison didn't know he was accidentally copying half of Ronald Mack's song "He's So Fine" into Harrison's "My Sweet Lord".

Re:My Sweet Lord (1)

Dragonslicer (991472) | more than 4 years ago | (#32370862)

Then explain the million-dollar verdict against George Harrison in Bright Tunes Music v. Harrisongs Music, in which George Harrison didn't know he was accidentally copying half of Ronald Mack's song "He's So Fine" into Harrison's "My Sweet Lord".

Not that this is necessarily a valid legal argument, but what percentage of the money that Harrison made from the song would one million dollars be? I'd guess that even after that payment, he still came out ahead.

Re:My Sweet Lord (2, Interesting)

tepples (727027) | more than 4 years ago | (#32371012)

what percentage of the money that Harrison made from the song would one million dollars be? I'd guess that even after that payment, he still came out ahead.

But that might not be the case for a smaller-time artist who gets hit with a similar lawsuit. The statutory damages of $750 to $30,000 might dwarf an indie artist's revenue. So if I'm writing and recording my own song, how can I make sure that someone else doesn't own copyright in the song?

Re:My Sweet Lord (1)

h4rr4r (612664) | more than 4 years ago | (#32371086)

You can't. The same way if you write just about any useful code you are probably infringing on dozens of patents.

Re:No sign, no crime? (1)

Thiez (1281866) | more than 4 years ago | (#32370464)

If only she'd stolen the music she wouldn't have to pay 2 million dollars.

Re:No sign, no crime? (0)

Anonymous Coward | more than 4 years ago | (#32370600)

You mean if she went into a record store and shoplifed the music in question -

Your right - she would be looking at jail time instead of just (huge) fines.

Re:No sign, no crime? (1)

Xaositecte (897197) | more than 4 years ago | (#32370734)

For Petty Theft? With a good attorney, you're looking at paying a fine - the amount depends on the judge and jurisdiction, but certainly less than 2 million - Maybe a few months jail time if you don't have the money for a good lawyer.

Re:No sign, no crime? (1)

Jarjarthejedi (996957) | more than 4 years ago | (#32370908)

Well here in AZ she'd be looking at a fine of about the retail price ($10*number of cd's, let's assume 10 for the sake of argument) and a fine of either $100 or $250 on top of that depending on whether you're a minor or not. So somewhere in the ballpark of $200-$350 dollars if you steal the music from a store, >1 million dollars if you pirate it.

Hmm...I wonder what cd's the borders near my house has...(kidding, kidding :P)

Actually as a petty offense I don't think you can be forced to pay more than $300 for a minor shoplifting incident, like stealing 10 CD's (mind you that's ~120 songs, which is way more than the million dollar fine was for)..

IANAL, just grabbed the info from my state law.

Did you check the disused lavatory? (4, Funny)

Qzukk (229616) | more than 4 years ago | (#32369922)

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

Re:Did you check the disused lavatory? (0, Redundant)

Zarel (900479) | more than 4 years ago | (#32370060)

"But Mr Dent, the plans have been available in the local planning office for the last nine month."

"Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them had you? I mean like actually telling anybody or anything."

"But the plans were on display ..."

"On display? I eventually had to go down to the cellar to find them."

"That's the display department."

"With a torch."

"Ah, well the lights had probably gone."

"So had the stairs."

"But look, you found the notice didn't you?"

"Yes," said Arthur, "yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying Beware of the Leopard."

From HHGG [wikipedia.org]

Re:Did you check the disused lavatory? (4, Insightful)

Anonymous Cowpat (788193) | more than 4 years ago | (#32370336)

From HHGG

This is /. - we didn't need to be told where that was from

Re:Did you check the disused lavatory? (2, Interesting)

Rockoon (1252108) | more than 4 years ago | (#32370492)

Is that too much to be considered fair use?

Is this the best they could find? (0)

Anonymous Coward | more than 4 years ago | (#32369948)

The lawyers filing the petition on defendant's behalf are the same firm that represented Jammie Thomas in her second trial,

Considering their history of abject failure, I don't think I'd want them defending me.

Let's turn this argument around (5, Insightful)

syousef (465911) | more than 4 years ago | (#32369976)

If a person can't innocently infringe because there is information out there that the material is copyrighted, it should follow that an artist (or distributor) should expect that somewhere out there is a person who will pirate the material and not pay. So why don't they just drop the case and accept that people pirate music? What you think you've got a monopoly on being unreasonable?

On what planet is any amount of personal infringment OF ENTERTAINMENT worth thousands of dollars? When I was a school kid in Australia we were taught about the attrocious and unreasonble practice of sending starving people to a prison half away around the world for stealing a loaf of bread when they were starving. Well I grant you no one ever died of not having a crappy RIAA song to listen to, but it seems we're trying to bring back the most unreasoanble and disproportionate punishments possible. What next? Should people be summarily executed for backing up a CD? Just how far is this shit going to go? And these CRIMES AGAINST HUMANITY keep getting pushed onto the whole world through trade and other agreements. As a reasonable person, how the hell am I suppose to feel any kind of sympathy for people who would push such laws?

Re:Let's turn this argument around (1)

mmaniaci (1200061) | more than 4 years ago | (#32370160)

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.

Re:Let's turn this argument around (1, Insightful)

EmagGeek (574360) | more than 4 years ago | (#32370494)

What part of the Constitution prohibits the government making a law against stealing?

Eighth Amendment (2, Insightful)

tepples (727027) | more than 4 years ago | (#32370610)

but it seems we're trying to bring back the most unreasoanble and disproportionate punishments possible.

What part of the Constitution prohibits the government making a law against stealing?

Nothing. There are federal laws against stealing, in both the "copyright infringement" sense and the "transporting stolen property across state lines" sense. But the grandparent's point, as I understand it, is that the people have an Eighth Amendment right to decline to pay excessive fines.

Re:Eighth Amendment (2, Interesting)

EmagGeek (574360) | more than 4 years ago | (#32370852)

These are not fines. They are judgments. Fines are monetary forfeitures compelled by and payable to The State. Judgments are the determination of the financial magnitude of a wrong, essentially the amount of money required to be paid by the defendant to the plaintiff to make the plaintiff whole. While for a given act the actor may be both criminally and civilly liable, the criminal aspect results in fines, and the civil aspect results in judgments.

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

Re:Eighth Amendment (1)

tepples (727027) | more than 4 years ago | (#32370958)

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

What is the key case interpreting the 8th to apply only to fines and not to statutory or punitive damage judgments?

Re:Eighth Amendment (1)

Martin Blank (154261) | more than 4 years ago | (#32371154)

'Grossly excessive' punitive judgments were generally prohibited by the Supreme Court in Gore v. BMW as a violation of the Due Process clause of the Fourteenth Amendment. That seems to separate judgments from the Eighth Amendment.

Re:Eighth Amendment (0)

Anonymous Coward | more than 4 years ago | (#32371158)

Not so! Punitive damages have been limited under the eighth, exactly the situation here. See Exxon v. Alaska for details iirc. ianal.

Re:Let's turn this argument around (0)

Anonymous Coward | more than 4 years ago | (#32370738)

The Eighth Amendment. It's not actually stealing it's copyright infringement, btw.

Re:Let's turn this argument around (0, Troll)

Interoperable (1651953) | more than 4 years ago | (#32370226)

...for stealing a loaf of bread when they were starving.

Yes, not wanting to pay $20 for a CD is exactly the same thing as starving.

...CRIMES AGAINST HUMANITY...

Having to file for personal bankruptcy does qualify as having a crime against humanity committed against you.

Re:Let's turn this argument around (4, Insightful)

syousef (465911) | more than 4 years ago | (#32370848)

...for stealing a loaf of bread when they were starving.

Yes, not wanting to pay $20 for a CD is exactly the same thing as starving.

Excuse me but isn't that exactly what I said?

...CRIMES AGAINST HUMANITY...

Having to file for personal bankruptcy does qualify as having a crime against humanity committed against you.

Ruining someone's life such that they can't hold certain jobs etc. over a piece of entertainment is certainly a crime against humanity. I haven't had to file for bankruptcy but then I don't pirate things. Doesn't mean I agree with the tactics used.

Re:Let's turn this argument around (0)

Anonymous Coward | more than 4 years ago | (#32371252)

Though you are pointing out hyperbole, you're also showing his point is valid. If these are pithy-less crimes, why do the monetary amounts owed vastly exceed those owed for much more serious crimes?

Re:Let's turn this argument around (1)

cynyr (703126) | more than 4 years ago | (#32370288)

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:Let's turn this argument around (0)

Anonymous Coward | more than 4 years ago | (#32370538)

It's a simple matter of economics. When people who commit a crime are only rarely caught, then the punishment has to be extreme in order to act as a deterrent.

In Edmonton, LRT stations are unmanned. Riding on the LRT without buying a $3 ticket "should" be punishable by a $3 fine. But because there are so few people patrolling the subway for freeloaders, the actual penalty is far greater. (The higher fine also helps to recoup costs from the other freeloaders who do not pay.)

Millions of people illegally download music. They all cannot be caught. So the very few who ARE caught are given exceptionally large punishments to act as a deterrent to others and make up for others' piracy. Whether you think that is "just" depends on what you think the goal of "justice" is.

Re:Let's turn this argument around (1)

h4rr4r (612664) | more than 4 years ago | (#32370742)

No, the fine should be $9, triple damages.

Deterrence generally does not work, it sounds nice in theory but in practice it seems not to have much impact.

Re:Let's turn this argument around (1)

syousef (465911) | more than 4 years ago | (#32370880)

It's a simple matter of economics. When people who commit a crime are only rarely caught, then the punishment has to be extreme in order to act as a deterrent.

Well since we're throwing porpotionality and justice out the window, maybe they should just behead them instead? Or perhaps their whole family.

If the punishment for a crime isn't proportional or people aren't given a chance to defend themself and the enforcement is weak, the punishment becomes an incentive not a deterent. "Might as well do the crime if I might do the time anyway".

Re:Let's turn this argument around (1)

twidarkling (1537077) | more than 4 years ago | (#32371138)

In Edmonton, LRT stations are unmanned. Riding on the LRT without buying a $3 ticket "should" be punishable by a $3 fine. But because there are so few people patrolling the subway for freeloaders, the actual penalty is far greater. (The higher fine also helps to recoup costs from the other freeloaders who do not pay.)

Ugh, fucking tell me about it. I dropped my damn transfer, and got checked. I even offered to hand over another ticket, but no, that wasn't fucking good enough. I didn't have a valid transfer *right then* so I got a $90 fine. Which, at the time, was MORE than a monthly bus pass. I pointed that out to the guy, saying that if I couldn't afford a monthly pass before, I sure as hell couldn't now. He ever so kindly gave me 90 days to pay the fine. It was all I could do to keep from tearing him a new one, since by the time I found out the amount of the fine, he already had my ID. I'd thought it was going to be something, you know, reasonable.

Re:Let's turn this argument around (1, Interesting)

Anonymous Coward | more than 4 years ago | (#32370886)

At one point I had several hundred CDs. Over a series of break-ins where I lived, my media collection was mostly stolen. I still had my backup mp3s on my computer though, so I could recover what was lost to some extent by re-burning CDs. Isn't data recovery why we make backups? Several of the CDs were no longer available on the market in any case.

I think if you ask the RIAA, I would be required to go and delete all my legitimately purchased music even though I no longer had the source CD to prove that I owned it. Either I do that, or I am subject to being driven into bankruptcy.

infringement is worth shit (1)

way2trivial (601132) | more than 4 years ago | (#32371108)

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

Re:Let's turn this argument around (0)

Anonymous Coward | more than 4 years ago | (#32371142)

So why don't they just drop the case and accept that people pirate music?

The law is often interpreted against the infringer as the copyright cases are based on laws and regulations. I guess even in the US the "ignorantia juris nocent" principle, that is, the ignorance of the law can't reduce the liability, is held. If the non-infringement of the copyright would be customary or a "normal" way of behaving, without a law or a regulation behind it, then the issue of the "not knowing" might limit the liability or even remove it altogether.
  The right amount of liability is another issue. There also should not exist punitive damages in my opinion, as the infringer has not caused bodily harm during the infringement. But this is American system and not an European where there might exist a prohibition against getting rich at the defendants expense.

but it seems we're trying to bring back the most unreasoanble and disproportionate punishments possible.

This is probably mostly American thingy. You don't apparently have a settlement procedure which takes into consideration the conditions surrounding the case, namely, the differences of the capability and resources between the infringer and the RIAA. Perhaps someone familiar with the American law could give some pointers?

Are the Supremes likely to hear it? (2, Interesting)

e9th (652576) | more than 4 years ago | (#32369988)

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

Re:Are the Supremes likely to hear it? (5, Insightful)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#32370068)

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

Yes there is a huge issue here. Whether the defense of "innocent infringement" is unavailable, merely because somewhere there is a copy -- which the defendant has never seen much less copied from -- that does contain a copyright notice. The appeals court's decision is ludicrous, and clearly contradicted by the statute itself, and yet it is not the first but the second appeals court to have reached that conclusion. It is vitally important that the Supreme Court remind the courts of what the statute is about.

Re:Are the Supremes likely to hear it? (1)

e9th (652576) | more than 4 years ago | (#32370130)

Ah, I see. I assumed that "innocent infringement" was already well defined. Yes, I hope the Court takes up the case. Thank you.

Re:Are the Supremes likely to hear it? (0)

Anonymous Coward | more than 4 years ago | (#32370132)

Oh please. The songs that this person was infringing were clearly copyrighted. You'd have to be a moron or living under a rock all your life to not know so.

Honor systems (2, Insightful)

mangu (126918) | more than 4 years ago | (#32370550)

The songs that this person was infringing were clearly copyrighted. You'd have to be a moron or living under a rock all your life to not know so

That's true in spirit, but not in the letter of the law. Let's see, in the Slashdot spirit, an analogy.

A few years ago I was in France and saw a small grocery store that had a fruit stand on the sidewalk. It was cold, in December, there was no one outside and the store door was closed. People picked their fruit in the stand and entered the store to pay.

That grocery store worked on an honor system. It worked, not because the French people are particularly honest, but because the fruit weren't too expensive. If a pear had cost $50 and a banana $100 you can bet a lot of people would just pick their fruit and walk away without paying.

The media industry is charging prices at least an order of magnitude more than they could reasonably do. A CD or DVD costing upwards of $30 is simply absurd, $3 would be enough to cover their costs plus a very nice profit. They cannot expect people to abide to an honor system with those prices.

If the industry isn't reasonable, the consumers need not be reasonable either. Any song could possibly have been released into the public domain, so we have the right to assume that public domain is the default status for any song. When the industry starts charging reasonable prices I will start to make reasonable guesses about copyright status.

Honor systems work when they're honorable (0)

Anonymous Coward | more than 4 years ago | (#32370620)

And the RIAA is not. Not in terms of pricing, not in terms of how they treat their customers, not in terms of their corporate ethics, etc. etc.

Cheers,

Re:Are the Supremes likely to hear it? (2, Insightful)

Jarjarthejedi (996957) | more than 4 years ago | (#32370938)

How do you know that? I know of at least two major artists* that have released songs for free download themselves. Did I miss out on getting the 'immediately sense when someone somewhere has claimed copyright to something' sensor when they were being passed out? Or how are you telling the 'free to download' songs from the 'not free to download' songs when both are posted without copyright?

*Jonathan Coulton and Weird Al

Re:Are the Supremes likely to hear it? (0)

Anonymous Coward | more than 4 years ago | (#32371228)

Calling any of them a "major artist" is a stretch.

Re:Are the Supremes likely to hear it? (1)

Rene S. Hollan (1943) | more than 4 years ago | (#32370170)

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?

Re:Are the Supremes likely to hear it? (4, Informative)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#32370296)

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.

Re:Are the Supremes likely to hear it? (0)

Anonymous Coward | more than 4 years ago | (#32370378)

The person has to really not know that it's copyrighted, to qualify for the defense.

One would have to be an idiot to not know that pretty much all mainstream music being shared is copyrighted.

Re:Are the Supremes likely to hear it? (4, Informative)

Jarjarthejedi (996957) | more than 4 years ago | (#32370956)

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.

Re:Are the Supremes likely to hear it? (1)

masmullin (1479239) | more than 4 years ago | (#32371100)

or a teenager. teens are pretty fucking stupid you know.

Re:Are the Supremes likely to hear it? (2)

Rene S. Hollan (1943) | more than 4 years ago | (#32370408)

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 remands for review of the statute.)

IOW, I don't think "I didn't know it was copyright because there was no notice" would be an adequate defense because every work of art is copyright by default. The statute may offer ignorance of the copyright/non-copyright status as an affirmative defense, but I don't think that ignorance can be established unless one can show it was expressly purported to be in the public domain, or licensed to one.

Re:Are the Supremes likely to hear it? (2, Informative)

Rockoon (1252108) | more than 4 years ago | (#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.

Re:Are the Supremes likely to hear it? (2, Interesting)

Kjella (173770) | more than 4 years ago | (#32370686)

Copyright does not mean no-rights-to-copy. All BSD licensed work is copyrighted, for example, but you are free to make copies from now until the day you die.

Yes, but if I get a piece of code with no license I'd usually be wrong to assume it is BSD licensed.

So if you receive an MP3 with no copyright notice, what should you assume? Under copyright law it's all automatically copyrighted whether there's a notice or not, so unless there's a license grant in the MP3 info tags, a note that it's in the public domain or reference to an expired copyright then you should probably assume that you have no permissions. I suppose you could make a good faith argument that you thought Beethoven's 5th symphony was in the public domain because of the age when it turns out the recording is actually copyrighted, but it wouldn't work for most mainstream music.

Re:Are the Supremes likely to hear it? (1)

Jarjarthejedi (996957) | more than 4 years ago | (#32370964)

"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.

Re:Are the Supremes likely to hear it? (1)

Dragonslicer (991472) | more than 4 years ago | (#32370916)

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

Unless explicitly stated otherwise, yes, it does.

Copyright in a song I have written (1)

tepples (727027) | more than 4 years ago | (#32370650)

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?

Re:Copyright in a song I have written (1)

Martin Blank (154261) | more than 4 years ago | (#32371186)

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:Are the Supremes likely to hear it? (1)

quickOnTheUptake (1450889) | more than 4 years ago | (#32371076)

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?

Re:Are the Supremes likely to hear it? (1)

Rene S. Hollan (1943) | more than 4 years ago | (#32371114)

Well, unless the statute defines what constitutes ignorance, case law would have to establish that.

At least, some diligence should be demonstrated.

Re:Are the Supremes likely to hear it? (2, Informative)

99BottlesOfBeerInMyF (813746) | more than 4 years ago | (#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.

Re:Are the Supremes likely to hear it? (1)

Rene S. Hollan (1943) | more than 4 years ago | (#32370440)

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.

Re:Are the Supremes likely to hear it? (1)

99BottlesOfBeerInMyF (813746) | more than 4 years ago | (#32370700)

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 are audio search programs/databases now, but no free ones I know of.

Re:Are the Supremes likely to hear it? (1)

h4rr4r (612664) | more than 4 years ago | (#32370784)

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?

Re:Are the Supremes likely to hear it? (1)

Jarjarthejedi (996957) | more than 4 years ago | (#32370978)

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.

Re:Are the Supremes likely to hear it? (1)

Rene S. Hollan (1943) | more than 4 years ago | (#32371080)

Not quite. You've done due diligence.

Re:Are the Supremes likely to hear it? (1)

Martin Blank (154261) | more than 4 years ago | (#32371218)

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:Are the Supremes likely to hear it? (2, Interesting)

meerling (1487879) | more than 4 years ago | (#32370422)

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 be downright freaking difficult to find out, especially with RIAA just automatically claiming that they are all illegal, even when the band who's song is being asked about publicly states the RIAA is off it's freaking nut since it's not even covered by the label and was independently released by the band for free as a promotion.)

No, I'm not going to dig up all the sources to the various events I've mentioned, but they all exist, if you google enough, you will find them. Have fun :)

Re:Are the Supremes likely to hear it? (1)

Charliemopps (1157495) | more than 4 years ago | (#32370348)

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.

Re:Are the Supremes likely to hear it? (1)

BitterOak (537666) | more than 4 years ago | (#32370346)

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.

Re:Are the Supremes likely to hear it? (1)

quickOnTheUptake (1450889) | more than 4 years ago | (#32371168)

The petition argues that there are.

Re:Are the Supremes likely to hear it? (1)

westlake (615356) | more than 4 years ago | (#32370574)

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.

embrace (1)

nimbius (983462) | more than 4 years ago | (#32370000)

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 (5, Informative)

Anomalyx (1731404) | more than 4 years ago | (#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

Re:Keyword (1)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#32370196)

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.

I hate the law (2, Informative)

Anonymous Coward | more than 4 years ago | (#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.

http://itlaw.wikia.com/wiki/Innocent_infringement

Examples of these three scenarios (1)

tepples (727027) | more than 4 years ago | (#32370728)

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. (3, Interesting)

Roskolnikov (68772) | more than 4 years ago | (#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.

Re:Innocent or not. (1)

h4rr4r (612664) | more than 4 years ago | (#32370832)

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

I use FLAC, but that is besides the point.

Re:Innocent or not. (1)

shentino (1139071) | more than 4 years ago | (#32371240)

Transcoding is derivation.

Re:Innocent or not. (1)

currently_awake (1248758) | more than 4 years ago | (#32371248)

Each -individual- song is copyrighted. There is a copyright infringement suite for each copyright broken. As for the law, doesn't the riaa just buy what they want?

Simple solution: Watermarks (5, Funny)

VortexCortex (1117377) | more than 4 years ago | (#32370244)

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.

I have a solution to the whole problem. (1)

lexsird (1208192) | more than 4 years ago | (#32371284)

Frankly this whole issue is revolving around old and dead tech and it just needs to die off and let something fresh and new take its place. With broadband being close to everywhere in so many forms, a universal subscription service for all music would be the smart way to solve this. A monthly fee to listen to whatever you want, whenever or where ever you want. The artists are paid according to a percentage based off of how much each of their works are played. This would provide a level playing field for artists, and give the subscribers fresh music as well as an archive. Seriously, consider how outdated the concept of "storing" ones music becomes with the ability for it to be accessed from a central storage.

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