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Supreme Court Refuses P2P 'Innocent Sharing' Case

CmdrTaco posted more than 3 years ago | from the i-need-some-dinner dept.

Music 351

yoyo81 writes "The Supreme Court has refused to hear an 'innocent infringement case' in which Whitney Harper shared some music on the family computer when she was a teenager and was subsequently hit with a lawsuit from the RIAA. An appeals court overturned an earlier ruling from a federal court that reduced damages to $200 instead of the statutory $750 claiming 'innocence' was no defense, especially since copyright notices appear on all phonorecords. She appealed to the Supreme Court, which refused to hear her case, but Justice Alito stated, 'This provision was adopted in 1988, well before digital music files became available on the Internet' and further, 'I would grant review in this case because not many cases presenting this issue are likely to reach the Courts of Appeals.' For now, though, Harper's verdict remains in place: $750 for each of the 37 songs at issue, or $27,750."

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Who could imagine? (-1, Troll)

Anonymous Coward | more than 3 years ago | (#34396520)

The Supreme Court isn't interested in making waves.

Somebody has to pay their brib...salaries.

Stupid (4, Insightful)

Antisyzygy (1495469) | more than 3 years ago | (#34396548)

"This provision was adopted in 1988, well before digital music files became available on the Internet"

So in other words "We get to bend the law to suit our corporate overlord's desires."

Re:Stupid (3, Insightful)

MozeeToby (1163751) | more than 3 years ago | (#34396608)

It's not as though supreme court justices need to be reelected every few years. Once they're in they're pretty much in for as long as they want to be. So, unless the record companies are remodeling their houses or sending personal 'gifts' for the holidays, I see it as less likely than usual that this a case of corruption. Now, the actual laws that the justices are interpreting... there you have a point.

Re:Stupid (2, Interesting)

Antisyzygy (1495469) | more than 3 years ago | (#34396880)

I understand the finer details. I was mainly making a joke. I think what it really is, is that the RIAA/MPAA has succeeded in its propaganda effort geared towards those in government. The Judge may in fact believe it causes significant damage to share a song, he also probably makes quite a bit of money so 27750 dollars seems like an adequate punishment to him, but its clearly excessive for any person that makes less than 60,000 a year. He is mistaken simply because he hasn't heard the whole truth and is not this woman's peer. He cannot understand how excessive this punishment truly is.

Re:Stupid (1)

CrimsonAvenger (580665) | more than 3 years ago | (#34397164)

The Judge may in fact believe it causes significant damage to share a song, he also probably makes quite a bit of money so 27750 dollars seems like an adequate punishment to him, but its clearly excessive for any person that makes less than 60,000 a year. He is mistaken simply because he hasn't heard the whole truth and is not this woman's peer.

If you read Alito's comment (even the part listed above), you might notice that he was in favour of hearing the case.

Your comment rather suggests the opposite. Which, in turn, suggests that you shouldn't let your prejudices blind you so often....

Re:Stupid (1)

Antisyzygy (1495469) | more than 3 years ago | (#34397302)

He wishes to hear it on a precedent that does no justice to anything I have said.

Re:Stupid (2, Interesting)

Swanktastic (109747) | more than 3 years ago | (#34397176)

I doubt being "out of touch" is the reason they declined to hear the case. Supreme Court justices aren't just sitting in some dusty old room reading law books alone, they have an entire organization of clerks to do research and advise them. It's common for 25 year olds (the top of the classes from Harvard/Yale law) to have tremendous sway over the court and our nations' laws through their clerk duties. A justice here and there may say something dumb, but the Court as a whole is quite well informed.

This particular case is beyond stupid, and not the one anyone who hates current copyright law should want to see before the Supreme Court. At issue (IMO) is the fact that laws written for Organized Criminals are being enforced in casual/personal usage situations. [Aside- I happen to believe they probably ARE appropriate for folks making their living off copyright violations.] Her claim of innocence does not strike at the root cause for our problems.

Re:Stupid (5, Insightful)

tjhart85 (1840452) | more than 3 years ago | (#34396656)

Wow, so their explanation of why they won't hear the case is based on the fact that she saw the copyright notice on the CD that she doesn't have? That's almost as bad as an EULA INSIDE the product you by and if you don't agree with it, you can't return the product since you've opened it.

Re:Stupid (5, Insightful)

yoyo81 (598597) | more than 3 years ago | (#34396730)

Not quite. That's precisely why Alito says they SHOULD hear the case. The reason why they're not hearing the case is because there is no dissent among the lower courts, so really they have no grounds to hear it. He hopes to eventually hear this case when the lower courts do disagree, as written in the summary, he thinks that the law is outdated. He also acknowledges what you're saying - that she did not have access to the copyright notice.

Re:Stupid (1)

WrongSizeGlass (838941) | more than 3 years ago | (#34396812)

He also acknowledges what you're saying - that she did not have access to the copyright notice.

I propose each and every song released from now on should have the copyright notice read allowed by the performer at the beginning of the song. That should make for some interesting radio indeed.

Re:Stupid (2, Funny)

Yvan256 (722131) | more than 3 years ago | (#34396986)

Could be worst. It could be the entire lyrics [wikipedia.org] .

Re:Stupid (5, Insightful)

DragonWriter (970822) | more than 3 years ago | (#34397010)

Not quite. That's precisely why Alito says they SHOULD hear the case. The reason why they're not hearing the case is because there is no dissent among the lower courts, so really they have no grounds to hear it.

This is not correct. The Supreme Court has "grounds" to hear any case appealed on a question of law from a lower court (as well as those cases within its original jurisdiction.) The Supreme Court's apellate jurisdiction is, however, generally discretionary, so it may choose whether or not to here any case that someone wants it to hear on appeal. An inconsistency between the Courts of Appeals on a legal issue is one factor that is often cited, in the Court's decisions on whether or not to here an appeal, as weighing in factor of the Court exercising its discretionary jurisdiction, but it is not a prerequisite, and cases are not-infrequently heard where this condition does not apply.

He hopes to eventually hear this case when the lower courts do disagree, as written in the summary, he thinks that the law is outdated.

No, he says they should hear this specific case now, citing one of the specific factors that is frequently cited as weighing in favor of the Supreme Court exercising its discretionary jurisdiction when there is not a division among the Courts of Appeals -- specifically, the fact that "not many cases presenting this issue are likely to reach the Courts of Appeals". His position was a dissent from the decision of the court to not hear the appeal.

Re:Stupid (5, Informative)

Tom Boz (1570397) | more than 3 years ago | (#34396678)

I think you misinterpreted what Justice Alito said - he *wanted* to hear the case; that sentence comes from his dissent. He would prefer to reexamine the laws which were written before a new medium was available (or at least widely available).

Re:Stupid (1, Funny)

RasputinAXP (12807) | more than 3 years ago | (#34397046)

If i had the mod points, I'd throw them to you. +1

Re:Stupid (1)

Antisyzygy (1495469) | more than 3 years ago | (#34397154)

It was a politically-charged joke. However, counter-point: Why are some laws still taken so seriously after 50-200 years and others simply re-evaluated because "(some new thing) happened"? New things happen all the time. We recognize that firearms are no longer needed for 1. Hunting because you can just get a steak at the store, 2. Protection from animal attacks because we have simply killed off or made irrelevant most predator species, and 3. Protection from criminals because we have a standing police force. So why bother with it? Furthermore, owning firearms wouldn't amount to diddly squat against the modern military. Lets just repeal the second amendment. Its clearly no longer valid.

Point is, the "Innocent Infringer" defense does apply in this case. Its too easy to share a file on the internet, and its feasible a younger person or a immature/naive adult would think that sharing a song is OK since it was and continues to be so popular and is easy to do.

Re:Stupid (1)

xkr (786629) | more than 3 years ago | (#34397172)

yes, duh.

Re:Stupid (3, Insightful)

DigiShaman (671371) | more than 3 years ago | (#34396688)

No, SCOTUS is doing exactly what it's supposed to be doing. It interpolates *existing* laws, it doesn't (or shouldn't) legislate from the bench. If you want the laws changed, write/speak to your congress (wo)man. FYI , we have three branches of government in the US. Legislative, Executive, and Judicial. Know their proper function please.

Re:Stupid (1)

camperdave (969942) | more than 3 years ago | (#34396832)

Can the Supreme Court not strike down an existing law? (Curious non-USian)

Re:Stupid (0)

Anonymous Coward | more than 3 years ago | (#34396936)

Only if the law is unconstitutional

Re:Stupid (2, Insightful)

NiceGeek (126629) | more than 3 years ago | (#34396954)

Yes they can, and have if they find that the law is unconstitutional.

Re:Stupid (1)

eepok (545733) | more than 3 years ago | (#34397160)

Or if they find it in contradiction of other more established laws. It's a common misunderstanding that they can only deal with strictly constitutional issues because, normally, only constitutional issues make it all the way through the appeals.

Their general charter, if you will, is to ensure the development of orderly federal law.

Re:Stupid (2, Interesting)

DragonWriter (970822) | more than 3 years ago | (#34397098)

Can the Supreme Court not strike down an existing law? (Curious non-USian)

The Supreme Court can rule that, e.g., an Act of Congress purporting to be a law is not a law, because it is outside of Congress's Constitutional authority, or that a state law, because it conflicts with federal law (whether the Constitution, statute, treaty, etc.) cannot be enforced by the State. These actions are often described as "striking down existing law", but they are, actually, interpreting existing law.

Re:Stupid (1)

DragonWriter (970822) | more than 3 years ago | (#34397068)

No, SCOTUS is doing exactly what it's supposed to be doing. It interpolates *existing* laws

First, I think you mean "interpret".

Second, in refusing to hear the case here which raised a question of whether the lower court correctly applied the existing law to the facts of this case, the Supreme Court isn't interpreting any law (except, implicitly, the Constitutional provision granting it discretionary rather than mandatory appellate jurisdiction), it is choosing not to bother to here the arguments and interpret the existing law.

This is, of course, completely within its discretionary power, but it has nothing to do with your argument that its role is to interpret existing law rather than change the law.

Re:Stupid (2)

cheekyjohnson (1873388) | more than 3 years ago | (#34397102)

write/speak to your congress (wo)man.

The same ones bowing down to large corporations? It likely won't work.

Re:Stupid (0, Troll)

Antisyzygy (1495469) | more than 3 years ago | (#34397256)

I interpolate that the second amendment is no longer relevant. You can buy steaks at the store. Predator species are no longer a threat to humans, and criminals can be taken care of by the police. Furthermore, you would not stand a chance against the modern military with semi-automatic firearms and no explosives. Thus, you have no reason and thus no right to own firearms.

In corporate America .... (0)

Anonymous Coward | more than 3 years ago | (#34396732)

In corporate America, you serve corporations!

No, .. corporations serve you! Oh God! No fucking way!

Hold on....

In corporate America, justice serves corporations!

Ah no ... not quite....

Ah, fuck it! We're screwed!

Re:Stupid (0)

Anonymous Coward | more than 3 years ago | (#34396794)

he was arguing in favor of reviewing the case dumbass.

Re:Stupid (0)

Anonymous Coward | more than 3 years ago | (#34396810)

The interesting thing was that the lone dissent was Alito, whose dissent make it sound like he was giving serious consideration to protecting innocent infringement.

That one really surprised me. There may be hope for him yet.

This is how I see it (3, Insightful)

Stregano (1285764) | more than 3 years ago | (#34396620)

I guess it is time to get my weekly -1 since some of this stuff I have a different opinion than others:

She knew exactly what she was doing. That would be like me shoplifting from a store that did not have a Shoplifters will be prosecuted sign" and claiming that I did not know I could not shoplift.

Look. I pirate and many others on /. do as well. Everybody knows it is illegal and there is a chance of getting caught. I am just glad I am not the one getting caught, and I would be in trouble for much more than 37 songs.

If you do something illegal and get caught, even if we think the penalty is horrible, the excuses some people use are ridiculous. If she was so naive to think that there was nothing illegal about downloading the music and not paying for it, then how in the hell did she figure out how to do it in the first place. I am trying to say that every single person that pirates knows it is illegal. Well, most people do. If you show grandma how to download Elvis songs, it is possible she could have no idea, but those cases are so far and few between, that I would put them in to 1% of all pirates in a study I made up myself to help out my argument.

If you are going to download music, there is always a chance of getting caught. This excuse is a horrible excuse as well

Re:This is how I see it (0)

Anonymous Coward | more than 3 years ago | (#34396714)

Look. I pirate and many others on /. do as well. Everybody knows it is illegal and there is a chance of getting caught. I am just glad I am not the one getting caught, and I would be in trouble for much more than 37 songs.

I don't know if that's a thing to be telling around, since in http://slashdot.org/comments.pl?sid=1889784&cid=34394998 [slashdot.org] :

I have the same first and last name of a rockstar by coincidence, so I always have cool stuff going on when I google my name.

you could figure out who you are by very long process of elimination. FOOL!

Re:This is how I see it (5, Insightful)

tycoex (1832784) | more than 3 years ago | (#34396722)

True but the penalty is ridiculous. If you get caught stealing 3 cd's at a store and you aren't even an adult yet, they will most likely just take them from you and call your parents. At most you will get a small fine for stealing under $100 worth of goods, which is only a misdemeanor.

If this becomes the norm we might as well start actually stealing from stores, since the penalty is so much smaller.

Re:This is how I see it (0)

Anonymous Coward | more than 3 years ago | (#34396788)

Aww hell no. You did not just equate copyright infringement with stealing up on my slashdot. Hold on to your jimmy hats boys, it's about to go down!

Re:This is how I see it (4, Insightful)

Chris Burke (6130) | more than 3 years ago | (#34396872)

They did not equate the two things, they compared them.

And it's a relevant and revealing comparison: Actual theft would be more acceptable and have a lesser penalty than duplicating bits.

Re:This is how I see it (1)

fishbowl (7759) | more than 3 years ago | (#34397218)

As it should be. Theft deprives another person of his property.

Copyright infringement deprives another person of his rights.

Would you allow me to decide what the limits of punishment should be if someone deprives you of your rights? And you don't get to decide which rights are under consideration, just because this conversation happens to be about copyright in particular.

Re:This is how I see it (1)

ScentCone (795499) | more than 3 years ago | (#34397238)

and have a lesser penalty than duplicating bits

Huh. Never thought of it that way. Come to think of it, why are all of those idiotic filmmakers, violinists, photographers, studio musicians, makeup artists, directors, choreographers, singers, recording engineers and all of their support people, assistants, representatives, insurance agents, and everyone else even complaining, anyway? All they do is re-arrange some bits, right?

I can tell you've never actually created anything.

Re:This is how I see it (4, Interesting)

amicusNYCL (1538833) | more than 3 years ago | (#34396858)

If this becomes the norm we might as well start actually stealing from stores, since the penalty is so much smaller.

If you steal a music CD from a store, and then make a bunch of copies and start distributing them, expect the same penalty. The girl is not charged with theft, she's charged with distribution of a copyrighted work. Her defense is that she didn't know she was distributing it, and the court says that doesn't matter. This line strikes me as odd though:

claiming "innocence" was no defense

I guess there's a reason they wrote it in quotes, but I was under the impression that innocence, by definition, is in fact always a defense. Apparently not.

Re:This is how I see it (1)

pookemon (909195) | more than 3 years ago | (#34397152)

Her defense is that she didn't know she was distributing it, and the court says that doesn't matter. This line strikes me as odd though:

Easy enough to do if your a nub and you use something like DC++ (but mostly it comes down to being a Nub).

claiming "innocence" was no defense

I guess there's a reason they wrote it in quotes, but I was under the impression that innocence, by definition, is in fact always a defense. Apparently not.

Yeah - I lol'd at that too. However essentially what her defence came down to is "Ignorance" - which is not a defence here in Oz and probably isn't accepted as a defence in the US too.

Re:This is how I see it (1)

cheekyjohnson (1873388) | more than 3 years ago | (#34397168)

The girl is not charged with theft, she's charged with distribution of a copyrighted work.

Which, for some reason, is far more costly. She might as well have just stole the extra copies instead of copying them (that's what I think he was saying).

Her defense is that she didn't know she was distributing it, and the court says that doesn't matter.

While I support piracy, ignorance is a pretty poor excuse.

Re:This is how I see it (1)

pookemon (909195) | more than 3 years ago | (#34397086)

Agreed. I'm always amazed that the amount of sharing involved doesn't ever get a mentioned. Sure, she shared it with 50,000 people, meaning that she effectively stole 150,000 CD's and gave them out. So 50k ppl are then guilty of receiving stolen goods while one is guilty of the theft. However, if she downloaded the 37 songs and had a share ratio of 0.1 across the entire collection, she's guilty of stealing the 3 CD's (as you've described) but has she actually provided anything more than 3 songs worth to other people? Ultimately the only person that has really done any measurable harm is the person that originally ripped the CD's and shared them.

Re:This is how I see it (1)

Tr3vin (1220548) | more than 3 years ago | (#34396728)

mod parent up. that is all.

Re:This is how I see it (1, Interesting)

amicusNYCL (1538833) | more than 3 years ago | (#34396876)

This place really needs a "-1: Telling mods what to do".

Re:This is how I see it (2, Interesting)

MozeeToby (1163751) | more than 3 years ago | (#34396736)

When 90+% of the population is engaging in an activity, maybe it shouldn't be illegal, especially when very few of the perpetrators are being caught and tried. Think about targeted enforcement, anyone the RIAA doesn't like can have their life torn out from under them by sending a single letter and file some court papers, and if not them then their friends and family.

It's the same thing on the criminal side of the law. Let's pretend that I did something to piss off a member of Obama's staff. That guy calls up the FBI, the FBI starts digging into my life and inevitably finds at least a handful of felonies that I've committed over the course of my life (statistically, it's practically guaranteed that I have, even though I don't even realize it). Taken drugs? A good investigation can probably uncover it. Browsed porn online? It's highly likely that you've got some kiddie porn (or something that looks like kiddie porn anyway) in your browser cache. Lied on a job resume? That's felony fraud is some places.

The point is, it is far, far too easy in our law and judicial systems to destroy someone's life simply because everyone has done something wrong at some point. All the government would have to do is precisely enforce the laws that are already in place and we would indeed be living in a full on police state

Re:This is how I see it (0)

Stregano (1285764) | more than 3 years ago | (#34396840)

Maybe 90+% of the population should not be engaging in an illegal activity. I agree that the penatly is bad. It is really bad, but when we know we are doing something highly illegal, and then we get busted, we get all up in arms when the penalty comes through. Let's face it, pirating is a much bigger offense than shoplifting.

Example: I am a computer programmer (I truly am outside of this example). If I get busted for piracy and that shows up on my record somehow, then it basically means I can't get a job as a programmer (or have a very tough time doing it). Now if they look up my record and see shoplifting, I would still have a job, but they just would not tell me where the extra stock of pens is kept.

The point is that piracy, even if it seems small, is a much harsher crime than shoplifting.

Using the "everybody does it" bandwagon approach is not the best one. In my line of work, seriously, I do programming and help out drug addicts. I see them and talk to them daily, and it is safe to say that I spend more time with addicts then other people in my day to day life. Using the bandwagon approach, there is nothing wrong with me doing drugs.

Also, anybody who looks at porn of girls who are 18 or 19 and they are much older than that and do not clear their cache, well, you are not going to see that.

As for very few perpetrators, that is because the ones that get caught are getting hit hard. They are trying to go after the big fish with stuff like COICA. I can't stand COICA, but there are so many people piratting to where they will try a few of us to make examples of us, and then when we fight it when we are clearly guilty, they get mad and put stuff in like COICA.

One of your examples is not like the other (1)

RingDev (879105) | more than 3 years ago | (#34396930)

Last I checked, as soon as a person is 18 years old, they are free to model naked. Also, once a person is 18 years old, they are free to observe naked models.

You don't lose those rights when you turn 50.

-Rick

Re:One of your examples is not like the other (2, Funny)

Haedrian (1676506) | more than 3 years ago | (#34397002)

"they are free to model naked" ... "You don't lose those rights when you turn 50."

Maybe you should. For all of us.

Re:This is how I see it (1)

cheekyjohnson (1873388) | more than 3 years ago | (#34397202)

Maybe 90+% of the population should not be engaging in an illegal activity.

Maybe they should just fix the broken system instead of trying to 'fix' the people.

It is really bad, but when we know we are doing something highly illegal, and then we get busted, we get all up in arms when the penalty comes through.

Probably because many people don't believe that 'loss' of potential future gain actually equates to harm, mostly because they never had that 'gain' in the first place, so there was no theft, and therefore no damages to repay. But I see what you're saying. Just because a lot of people do something, that doesn't make it right/wrong.

Re:This is how I see it (2, Insightful)

WrongSizeGlass (838941) | more than 3 years ago | (#34396898)

When 90+% of the population is engaging in an activity, maybe it shouldn't be illegal, especially when very few of the perpetrators are being caught and tried.

Even though your 90+% is a tad exaggerated, would you say the same thing if 90+% of the population were smoking pot or meth? How about committing vandalism or looting? How about writing hate mail or sending envelopes with an unknown white powder inside?

Something isn't right just because "everyone is doing it" ...

Re:This is how I see it (1)

larry bagina (561269) | more than 3 years ago | (#34397110)

yes to all the above except vandalism and looting.

Re:This is how I see it (0)

Anonymous Coward | more than 3 years ago | (#34397230)

Even though your 90+% is a tad exaggerated, would you say the same thing if 90+% of the population were smoking pot or meth?

Uh... yes, actually.

Adults should be allowed to consume whatever substances they please. A lot fewer than 90% of the population use cannabis or methamphetamine, but both of those drugs should be legal for an adult to possess and consume.

Re:This is how I see it (0)

Anonymous Coward | more than 3 years ago | (#34397262)

There's nothing wrong about smoking pot.

Re:This is how I see it (0)

Anonymous Coward | more than 3 years ago | (#34397274)

Yes, because if 90% of the population is doing something, then it is by definition an accepted activity in our society and should not be illegal.

Re:This is how I see it (2, Insightful)

Burning1 (204959) | more than 3 years ago | (#34397308)

Even though your 90+% is a tad exaggerated, would you say the same thing if 90+% of the population were smoking pot or meth? How about committing vandalism or looting? How about writing hate mail or sending envelopes with an unknown white powder inside?

But 90% of the population isn't smoking meth, or looting, or vandalizing. So your argument might support the idea that popular activities should be legalized.

And in fact, through history most of the things that 90% of the population do have been legal until there is a significant enough portion of the population that disagrees with it to illegalize it. See: Racism.

Re:This is how I see it (1)

Haedrian (1676506) | more than 3 years ago | (#34396996)

Once upon a time there was something called Democracy

The idea was the the majority would define what is right and what is wrong.

Somewhere across the line however it turned into a "the people who can pull up the most money", and we're stuck that.

I don't think it should be legal to copy songs which the owners don't want you to - but they shouldn't have a few hundred dollars each in punishment.

Re:This is how I see it (1)

Vancorps (746090) | more than 3 years ago | (#34397250)

Indeed, there should be a distinction between personal file sharing and actively pirating and making money. The statues are in place for CD duplicators and not online distribution where many people can and do distribute unknowingly.

Re:This is how I see it (5, Insightful)

Monkeedude1212 (1560403) | more than 3 years ago | (#34396762)

Well I guess I might as well as hop in the ring and get modded down as well. Time for one of those annoying point/counterpoint posts.

She knew exactly what she was doing. That would be like me shoplifting from a store that did not have a
Shoplifters will be prosecuted sign" and claiming that I did not know I could not shoplift.

No. It's not always like that. The article doesn't say when this took place. When I was 16, I didn't know downloading music was considered illegal. Like her - I naturally assumed that since you don't get the full content that comes with a CD, and that songs are played for free on the radio DAILY with no laws against recording the radio - that downloading music was not an issue at all. It was only once I started reading the news (as most teenagers don't actually read the news, go figure) that I found out the whole issue with Napster and Metallica causing a whole big stink. NOW I know there is an issue, and back then I didn't - which is what she's claiming.

Look. I pirate and many others on /. do as well. Everybody knows it is illegal and there is a chance of getting caught. I am just glad I am not the one getting caught, and I would be in trouble for much more than 37 songs.

Thats the thing - some of us disagree in it's illegality. Like mentioned with Radio before, they get to air it for free, and I can record any song on the radio, put the sound file on my MP3, and I am completely free of any Copyright issues. Mixed tapes were all the rage, why aren't there ridiculous lawsuits against every highschool romantic guy who ever made a mixed tape?

If you do something illegal and get caught, even if we think the penalty is horrible, the excuses some people use are ridiculous. If she was so naive to think that there was nothing illegal about downloading the music and not paying for it, then how in the hell did she figure out how to do it in the first place. I am trying to say that every single person that pirates knows it is illegal. Well, most people do. If you show grandma how to download Elvis songs, it is possible she could have no idea, but those cases are so far and few between, that I would put them in to 1% of all pirates in a study I made up myself to help out my argument.

This is EXACLTY the point she is trying to make: She was just a teenager. She wasn't some leet phreak hacker like you or I - she wasn't visitting Slashdot every day of the week and wasn't a proud supporter of open source technology. She was someone who probably went over to a friends house, they said "Hey, see this thing called Limewire? You can use it to download songs. Its great! Here', I'll set it up when I'm over at your house next".

She likely had NO idea of the consequences when this happened.

If you are going to download music, there is always a chance of getting caught. This excuse is a horrible excuse as well

Yes - but when you aren't aware it's illegal, thats where the contraversy arises. No - ignorance of the law is not an excuse - you can't say "But I didn't know!". What creates a problem is the double standards - when it is perfectly fine for someone to create a duplicate copy of a song in one way without any consequence but doing it in a certain way ends in multiple thousands of dollars in lawsuits.

Re:This is how I see it (0)

Anonymous Coward | more than 3 years ago | (#34397050)

Actually, recording from the radio and making mix tapes has always been illegal for the same reasons as today. It's just a lot harder to hunt those people down, since making a one-off mix tape doesn't quite have the same reach as P2P sharing.

Not that I disagree with you, but just because they didn't attack people for it in the past didn't mean that the law wouldn't let them.

Re:This is how I see it (2, Informative)

Jaktar (975138) | more than 3 years ago | (#34397196)

I had to look up some info on what exact precedents have been made in courts regarding this. So, here it is...
http://www.jwharrison.com/blog/2007/01/20/recording-the-radio-is-legal-recording-satellite-radio-is-illegal/ [jwharrison.com]
Satellite radio is illegal to record, while standard radio is in the clear.

The main argument being standard radio is more lossy. Not a very good argument IMHO.

Re:This is how I see it (1)

tkrotchko (124118) | more than 3 years ago | (#34397228)

"The main argument being standard radio is more lossy. Not a very good argument IMHO."

The only people making that argument are the ones who have never listened to satellite radio.

Even good satellite radio (an oxymoron) probably has as much loss as a 3rd generation cassette. It sounds basically like shortwave radio. Its *good enough* for listening to in the car, but that's about it.

Re:This is how I see it (1)

zach_the_lizard (1317619) | more than 3 years ago | (#34396780)

Allow me to be the first: Copyright violation and theft are two totally different acts. Copyright violation is not theft; the party that has supposedly been stolen from, at the end of the day, still has all of their physical property, and not only that, but this property is in the same exact condition as before the act. You can't even claim lost sales; if I torrent something, there is no guarantee I would pay for it, even if it were merely a penny.

I would never pay to watch a TV show that has been broadcast to me for free, and I would consider downloading a copy to be in the same league of evil as if I had just DVR'd the show in the first place (or put it on tape, for older shows).

Re:This is how I see it (1)

Tr3vin (1220548) | more than 3 years ago | (#34397000)

Then can we start using 'identity violation' instead of 'identity theft'?

Re:This is how I see it (1)

Vancorps (746090) | more than 3 years ago | (#34397294)

No, since identity theft actually hurts the original party. Your identity is most definitely not in the same exact condition as before the act.

Re:This is how I see it (1)

cheekyjohnson (1873388) | more than 3 years ago | (#34397260)

if I torrent something, there is no guarantee I would pay for it, even if it were merely a penny.

Not only that, but 'loss' of 'potential' future gain is not theft, because you never had that 'gain' in the first place! Also, if 'loss' of potential future gain somehow equated to harm, everyone would be guilty of harming everyone else, as merely choosing not to give someone your money would be considered 'harm' since they lost the potential for future gain because of you.

Re:This is how I see it (1)

Culture20 (968837) | more than 3 years ago | (#34396792)

She knew exactly what she was doing. That would be like me shoplifting from a store that did not have a Shoplifters will be prosecuted sign" and claiming that I did not know I could not shoplift.

Actually, for a lot of kids these days (probably including her), it's more like taking some seed grain from a local farmer's field, knowing that people take seed grain from his field regularly and have for as long as they've been alive/aware, then sowing the seed all over the place. Then the farmer is angry when no one buys his crop. The kids are perplexed when they find out that the farmer has a sign at his produce stand which says "No tresspassing, no stealing of seed grain" Sure, they can understand it after the fact, but it's an "Aha!" moment. What they did is illegal, and ignorance of the law is no defense against guilt, but it should be a mitigating factor in determining punishment.

Re:This is how I see it (1)

Monkeedude1212 (1560403) | more than 3 years ago | (#34396816)

That's one of those analogies where the actual situation is easier to understand than your analogy.

Re:This is how I see it (1)

MobyDisk (75490) | more than 3 years ago | (#34396836)

These crazy defenses arise because the penalties are so absurd. You can't make a 16-year-old pay $27k in damages for downloading a CD. That's not sane. I think they should try the cruel-and-unusual punishment defense.

Re:This is how I see it (1)

Hatta (162192) | more than 3 years ago | (#34396842)

She knew exactly what she was doing.

Prove it. Or, at the very least, allow her the chance to make her defense that she didn't know.

If you show grandma how to download Elvis songs, it is possible she could have no idea, but those cases are so far and few between, that I would put them in to 1% of all pirates in a study I made up myself to help out my argument.

Shouldn't that 1% get the chance to mount an appropriate defense?

Re:This is how I see it (1)

Brett Buck (811747) | more than 3 years ago | (#34397022)

Look. I pirate and many others on /. do as well. Everybody knows it is illegal and there is a chance of getting caught. I am just glad I am not the one getting caught, and I would be in trouble for much more than 37 songs.

          Why in the world would you bother? Do you think the potential penalties (no matter how absurd) are really worth it? Can't you just pay the damn $10 a shot? Or are you doing it on some sort of half-assed "principle"?

         

Re:This is how I see it (0)

Anonymous Coward | more than 3 years ago | (#34397082)

Well, there's also a couple legal issues.

One, since she was under the age of 18 at the time of infringement, and thus had no legal rights, her parents should be the targets of subject, not her. How many cases have you EVER heard of, of ANY corporation taking a person to civil court who is under the legal age of 18? She can not be considered an adult at the time of infringement. QED, parents ....

Second, and I'm not too familiar with civil matters, but I'd like to think there is a statute of limitations on such things. Perhaps I am wrong though, since Copyright Infringement is now a grey area. Can you honestly say it is a civil matter still? I can't. I'm fully aware profitable infringement is a criminal matter, but it's been that way for quite a while now. VHS anyone?

These are 2 areas I would sure as hell like answered by the top bench.

It is a shame though, that SCOTUS will gladly accept million and billion dollar scuffles over document file-type battles (see recent SCOTUS acceptance of trial against MS for word file-types), yet a Copyright Infringement case against a, then, under legal age girl, which WILL most likely result in monetary fines NOW, thus affecting her ability to dutifully progress in society, gets brushed aside as a trifle bother.

I really hope your not half as blind as your post suggests, and you see that there are underlying questions of legality which exceed the simple duplication of 1's and 0's to peered nodes...

Gentleman, start your shoplifting (2, Interesting)

Anonymous Coward | more than 3 years ago | (#34396622)

Just googling around, the penalty for shoplifting less than $50 worth of goods in California appears to be a mere "infraction" and $250 fine.

Please note, this post is not to be construed as legal advice (IANAL) nor incitement to commit any criminal act.

Re:Gentleman, start your shoplifting (1)

Rockoon (1252108) | more than 3 years ago | (#34396854)

My guess is that the chance that someone with even half a brain would get caught in any shoplifting instance is well below 5%.

Remember that shoplifters choose when and where to shoplift, so their chance of success is under their control.

..and for you file sharers out there.. you have the same sort of control. You can choose when and where to do it.

I think that most American nerds have stopped getting their music from P2P sites .. opting instead to rip music directly from otherwise legal high bitrate music streaming sites (grooveshark, last.fm, pandora...) where the distribution angle just wont apply to their "crime."

Re:Gentleman, start your shoplifting (1)

amicusNYCL (1538833) | more than 3 years ago | (#34397032)

Please note, this post is not to be construed as legal advice (IANAL) nor incitement to commit any criminal act.

..nor relevant to any aspects of the case.

Why not treble damages? (1)

FiloEleven (602040) | more than 3 years ago | (#34396640)

I understand that punitive damages are assigned to try to curb further abuse. Historically this has been limited to treble damages, though. Why $200 per infringement considered sane, let alone $750? Or does their argument rest on the "making available" principle?

IAObviouslyNAL

Re:Why not treble damages? (1)

zach_the_lizard (1317619) | more than 3 years ago | (#34396814)

There is no logic, not really, other than screaming "Theft!" to gullible and technologically illiterate judges and juries. They also cannot differentiate between theft and copyright violation.

Re:Why not treble damages? (2, Interesting)

suutar (1860506) | more than 3 years ago | (#34396922)

There's a special rule for copyright infringement (originally targeted, I believe, at for-profit bootlegging operations) that says "if the rights-holder wants, we can skip all that establishment of real damages and just say $250 per item", and then triple that if it's willful. The idea (if I'm right) was to keep the plaintiff from having to blow crap-loads of money on researching how many folks had bought the bootlegs, and to yield a substantial total to establish a deterring effect. Unintended Consequences, however, allow it to be used on a completely different class of infringer.

Well lets see here (1)

Dyinobal (1427207) | more than 3 years ago | (#34396646)

I just looked up the cost of CDs on amazon and most were between 5 and 10 USD so the music industry is claiming that she cost them the sale of any where between 2275 to 5550 CDs by sharing those 27 songs for well it doesn't say how long, but seeing as how she was a minor at the time I don't see how a company can justify ruining someone life, at such an early age over 27 songs. Then again that is the problem with corporations, they have more rights than the individual with no moral or ethical qualms other than serving the bottom line.

Re:Well lets see here (1)

Culture20 (968837) | more than 3 years ago | (#34396824)

I just looked up the cost of CDs on amazon and most were between 5 and 10 USD so the music industry is claiming that she cost them the sale of any where between 2275 to 5550 CDs by sharing those 27 songs for well it doesn't say how long, but seeing as how she was a minor at the time I don't see how a company can justify ruining someone life, at such an early age over 27 songs. Then again that is the problem with corporations, they have more rights than the individual with no moral or ethical qualms other than serving the bottom line.

I'm sorry, but $27,750 isn't life ruining, even to someone making only $12/hour. A big problem, and a long term debt perhaps. But if she gets a good job, she can pay off that debt in four years or less, easily.

Re:Well lets see here (1)

smaddox (928261) | more than 3 years ago | (#34396870)

Unless she wants to go to college...

Re:Well lets see here (1)

Dyinobal (1427207) | more than 3 years ago | (#34396900)

We already know the RIAA suggests you quit college and work solely to pay them off.

Re:Well lets see here (1)

Shadow99_1 (86250) | more than 3 years ago | (#34397150)

You do realize courts don't generally allow you to pay in installments, right? So this is a lump sum of $28k, which is likely more than she could make in a year most likely. Oh and $12/hour is funny... Where I live a good job is $12/hour... My mom for instance makes $7.75/hour and even a decade ago as a store manager was making all of $8/hour and denied overtime. So that's basically more than my mom's yearly income a decade ago or even worse now since she's not full time.

This is damning to any one on a low income and has proven to be one of the 'sanest' rulings yet for damages.

Fair Price (1, Redundant)

Renraku (518261) | more than 3 years ago | (#34396682)

I think $750 per song is a fair price. After all, we live in the Corporate States of America. If you don't like it, get out. This is a sign of things to come.

Re:Fair Price (1)

MozeeToby (1163751) | more than 3 years ago | (#34396806)

If you don't like it, get out

Or don't pirate music. I fully agree that $750 is a ridiculous amount for punishment, but the punishment is much easier to avoid than leaving the country. Just. don't. pirate. music. And while you're at it, don't support companies that engage in this behavior. If they're going to be dicks and assholes then screw 'em, let them rot in bankruptcy (if only we could convince enough people for that to actually happen).

Re:Fair Price (0)

Anonymous Coward | more than 3 years ago | (#34397244)

I haven't bought a CD since that whole Metalica fiasco.

I don't buy songs, don't pirate songs, I pretty much said "fuck those assholes", and let it be that.

Before then, I used to buy Metalica cd's along with other bands of course, I thought it was a crock of shit, and still do.... so now I don't buy or download any of it.

Movies are another story... I like movies, so I subscribe to Netflix and pay my 10 bucks a month, or what ever it is:)

Re:Fair Price (1)

Shadow99_1 (86250) | more than 3 years ago | (#34397286)

The problem with this is that the media corporations hold our cultural heritage by the balls. Culture is something we as humans need, even if you personally don't like the last crap the teens like.

I for one thing it's damn well time we ignored them and found some other means of creating and dispersing culture, but they keep blocking our attempts at every turn. The biggest problem is that often as humans we create new culture from old. As it stands now we have nearly 120 years of culture locked away from our use and it gets _worse_ as time goes on. They take things in the public domain and recreate them in new forms, these new forms then lock out recreations of public domain works we do. Disney is perhaps the best known for doing this, but they aren't the only ones.

I for one am also tired of them being able to claim 'piracy' any time their profits aren't astronomically high! You ignore the fact that they get their way more and more the fewer recordings they sell, and convince our governments who eat from their tables that things need to get worse for us because we are robbing them! If they want to call me a pirate I have no compunction about then _being_ a 'pirate' by downloading the few good bits they let slip through their fingers.

Fuck that crap! It's our culture. Not 'theirs'. They should not have been and should not now be allowed to own modern culture. We failed as a people to stop this insanity and now we need to find a solution to the issue we've inherited where the people who produce culture don't _own_ culture collectively. I'm not even saying this as someone who hasn't done their own share of creation, since I'm a trained musician. It won't end music. It won't end movies. It won't end plays. It won't end operas. It won't end concerts. It won't news. It won't end anything except their broken model where they think a corporation should be allowed to hold all rights to the cultural heritage of us all!

Re:Fair Price (1)

igreaterthanu (1942456) | more than 3 years ago | (#34397106)

I'm not rich so I can't afford to shop at this fancy "Limewire" store. I shop for music at iTunes. With savings of $749.01 per song I have saved $208,244.78 already.

All we need now is (5, Interesting)

unity100 (970058) | more than 3 years ago | (#34396702)

wikileaks exposing this pieces of crap as they are. a few 'trade secret' communications in between execs and their henchmen should wake the whole public up to the shit these are pulling.

Re:All we need now is (0)

Anonymous Coward | more than 3 years ago | (#34396754)

Like it or not, it will continue and it will get worse..

why??

It is all about the IP (intellectual property) now in the ole US of A. If that is not protected and is shared freely.. what else is there??

Sir Richard Says Just Wait (0)

Anonymous Coward | more than 3 years ago | (#34396878)

In a recent interview Sir Richard Branson [wikipedia.org] , when asked about his worst business decision, replied that it was thinking (re V2 Records [wikipedia.org] a few years ago) that the traditional recording industry would survive the next decade.

His best decision? Spaceship One.

Re:All we need now is (0)

Anonymous Coward | more than 3 years ago | (#34396970)

Wikileaks is a front that only does damage against the US gov't and its banks (supposedly).

It's not interested in dealing with other important issues or other countries.

Refuse to Hear (1)

nurb432 (527695) | more than 3 years ago | (#34396964)

This is why all along i have said that the Supreme Court is the most powerful part of our federal government. They can allow clearly unconstitutional laws to stand on a whim and never even get their hands dirty. And we as people have ZERO recourse, except violent revolution. ( peaceful revolution at the ballet box wont work since the judges are appointed for life )

This is one of the 2 the major flaws that our founders left us with. ( The other was support for amending the Constitution beyond the first 10 amendments )

So once again, our rights as citizens get trampled, and denied our 'day in court'. "America, home of the free", it was great while it lasted.

Re:Refuse to Hear (0)

Anonymous Coward | more than 3 years ago | (#34397200)

Wow, so you think the 13th amendment (abolishing slavery) was a mistake?

So what is a defense? (1)

SleazyRidr (1563649) | more than 3 years ago | (#34396990)

"innocence" was no defense

If even innocence isn't a defense, then what the hell chance does anyone have? I can just sue you for some random thing, and the fact that you're completely innocent doesn't help you!

Configure before use... and don't use P2P (1)

gbl08ma (1904378) | more than 3 years ago | (#34397004)

Assuming it was really accidental, I think it should have happened because the P2P client was configured by default to share some common folder like /home/user or C:\Documents and Settings\User therefore sharing the music files (and everything else in the subfolders!) to everyone... so, what can we learn? "Take a look at the settings of the apps before using. Default is not synonym of optimal."
...however I would naturally say it was not accidental...
But now thinking on the real philosophic roots of the subject... why does she need to pay $27,750 now? Because of information technologies...

Finally I just hope they let her listen to the 37 "stolen" tracks for every times as she wish... let's say the licensing price of the tracks was not very cheap, hehe.

And this is why I stopped using eMule, then stopped using Songr, then switched to Linux and now I use YouTube plus its great feature of putting the temporary video file on the /tmp folder. "Oh, looks like I did an accidental copy of the file from the /tmp folder into my (Rockbox'ed) iPod! Oh god!"

See. this is why we need wikileaks (1)

unity100 (970058) | more than 3 years ago | (#34397006)

some teenager shares something somewhere, and she cant have 'innocent infringement' defense.

now, tell me what would happen, if wikileaks published transcripts or audio of a conversation in between riaa and judge/jury ?

Re:See. this is why we need wikileaks (1)

PerformanceDude (1798324) | more than 3 years ago | (#34397114)

Wikileaks would be hit with a copyright infringement notice of course - DUH!!

Don't download! (1)

Locke2005 (849178) | more than 3 years ago | (#34397028)

Borrow CDs from the library or your friends, rip them yourself, and just watch the RIAA try to catch you! I have a friend who owns thousands of CDs and is perfectly happy to make me a copy of any one I want... what are his chances of getting caught? Zero... I sure as hell am not going to turn him in!

F-iRst post! (-1)

Anonymous Coward | more than 3 years ago | (#34397062)

Just to be clear... (1)

BaronHethorSamedi (970820) | more than 3 years ago | (#34397156)

The question here isn't whether she's liable. It's for how much.

Alito's dissent [supremecourt.gov] (starting on page 26) is interesting, and gets into just how thorny a problem it is to prove an "innocent infringer" defense under 17 U.S.C. 504. [copyright.gov] (And again, an "innocent infringer" isn't off the hook--it just reduces the minimum statutory damages that may be awarded to the rights-holder.) Basically, the girl argued that she was too young, too technically unsophisticated--not a willful infringer for the purposes of awarding damages. The judge who originally reduced the damages more or less agreed with her (his ruling can be found here [beckermanlegal.com] . The court of appeals then looked at the argument differently. (There order is here. [uscourts.gov] . They considered the innocent infringer defense directly under 17 U.S.C. 402(d) (full text available here [copyright.gov] . Basically, that says you can't be an innocent infringer if you have "access to" published recordings that have the copyright notice on them. The court of appeals pretty broadly said that this provision prevented Ms. Harper from claiming innocent infringement. Bottom line, she never disputed that she had access to such recordings (whatever that might mean).

Alito doesn't like the appeals court saying that this "access to" argument may act as a matter of law to prevent someone from being an innocent infringer. I think he's right about that--access should be a question of fact that needs to be decided on evidence, and it seems like nobody in this case really talked much about it.

The Recording Industry (0)

Anonymous Coward | more than 3 years ago | (#34397182)

The Recording Industry: Ruining Lives One at a Time since 1999!

Amazing they're trying to get $28K out of a woman who will have to ruin her life to pay them back. I hope all the heads of the record companies get cancer that wrecks them and their families.

1988 (1)

mattack2 (1165421) | more than 3 years ago | (#34397220)

Justice Alito stated, "This provision was adopted in 1988, well before digital music files became available on the Internet"

I guess Alito is yet another one of the people who thinks that "the Internet" is only the web (and things that came after the web). While it wasn't songs, I sure remember getting small audio clips from movies ("I'm trying to think but nothin' happens" - Curly from the Three Stooges) from BBSes well before that -- and I don't doubt some used the Internet as their transport medium. Presumably others were already copying entire songs.

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