Court Denies Innocent Infringement Defense To Teen For Sharing Music
from the reasonable? dept
You may recall a few years back that a teenager, Whitney Harper, who was getting sued by the record labels/RIAA for file sharing, claimed that the amount she should have to pay up should be less than the $750 statutory minimum, because she was an "innocent infringer," unaware that what she was doing in listening to music was against the law. In fact, she didn't even realize she was sharing files, but thought she was just listening to music, like radio. Surprisingly, the lower court actually agreed with her and said that $200 per song (for the 37 songs) was an appropriate amount. But, of course, the RIAA appealed, as (despite claims to the contrary in the Tenenbaum and Thomas-Rasset case) they need those huge potential amounts to use as a sledge hammer against file sharers. Unfortunately, an appeals court has overturned the lower court ruling, and said that the statutory minimum of $750 per infringement should apply -- saying that the innocent infringement defense isn't applicable because the CDs the music came on (which she never saw) had proper copyright notices.As you may know, copyright law does allow for reduced statutory damages on innocent infringement, "where the infringer sustains the burden of proving . . . that [she] was not aware and had no reason to believe that . . . her acts constituted an infringement of copyright." Given the details of this case, that seemed to apply -- but the appeals court was having none of it. In the decision, it argues that the law says an innocent infringer defense cannot be applied (with one exception irrelevant to this case) if a proper copyright notice "appears on the published . . . phonorecords to which a defendant . . . had access."
The court the says that because copyright notices are found regularly on CDs, then Harper effectively "had access" to those recordings, at least enough to know they were covered by copyright. Not surprisingly, I find this argument to be quite troubling. If we assume it is accurate that Harper was using LimeWire as if it were a radio to listen to music, then how would she know that she was violating the copyright on the recordings at all? Would someone listening to the radio know? What about someone listening to Pandora or Spotify. Based on this ruling, anyone can be put at risk of much larger statutory damages for copyright if they simply don't know if the online streaming service they're using has properly cleared the copyrights. That does not seem like a conclusion that makes sense, or would have been intended by Congress. Did Congress really intend for each user to do the research before using any online music service to make sure those services had properly cleared the copyrights?
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Filed Under: copyright, innocent infringement, statutory damages, whitney harper
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inter-tubes
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Re: inter-tubes
Does it even matter to anyone in government what the Constitution says anymore?
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Re: inter-tubes
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The little details matter.
No. "Stealing" isn't stealing. In matters of morality and law, the little details matter. Those that try to actively hide those little details are what most people call liars.
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Re: Re: inter-tubes
Would you 'steal' a kiss?
Would you buy something at a price low enough to be considered a 'steal'?
Would you have let Marilyn Monroe 'steal' the show?
Please steal a dictionary. I'm sure the service to humanity would outweigh the negative consequences.
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Re: Re: Re: inter-tubes
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Re: Re: Re: Re: inter-tubes
Thesaurus? I use a dictionary for semantics, I suggest you do too.
The point of my demonstration was to highlight that the word 'steal' can be used to mean different things. Stealing when used to describe copyright infringement is distinct from the use of the word in your book example.
Steal as used in your example: "to take (the property of another or others) without permission or right, esp. secretly or by force: A pickpocket stole his watch." (dictionary.reference.com)
Steal as used when referring to copyright infringement: "to appropriate (ideas, credit, words, etc.) without right or acknowledgement." (dictionary.reference.com)
While the distinction might not matter to you, when you use the two different meanings to draw a comparison you are either being deceptive or ignorant.
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Re: Re: Re: Re: inter-tubes
Trying to compare copying a digital file with stealing a digital book is equally ridiculous.
For your original analogy to even remotely work, you would have to replace stealing the book with photocopying it. Even then, it's a poor analogy because finite, expensive physical resources are used in photocopying whereas none are used in digital copying.
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Re: Re: Re: Re: Re: inter-tubes
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Re: inter-tubes
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1.) Avoid contractions in formal weddings. "Don't" should be "do not", "they're" should be "they are"...
2.) Uh oh. I spot a missing article or pronoun! "had proper" is written, but should this be "had the proper"?
3.) Use a more accurate adjective than quite in "I find this argument to be quite troubling"
4.)It's written that "If we assume". "Assume" means "to accept without proof." but "Presume" means "to accept before proof is established." Wouldn't presume be a better word?
Howz you're grammarz? It's the way I are! http://www.youtube.com/watch?v=Mj6QqCH7g0Q
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Re:
2) "the" is not needed. The original statement is clear without it.
3) No. This is personal preference, not grammatically incorrect.
4) Your are presuming the intended meaning. Either way, it is grammatically correct.
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Re: Grammah Correction Idiot/Troll
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Re:
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Should have known?
While you can argue that the original may have had a CC notice, it is like pulling teeth to get that info from the labels. That is unless they are fixing to make an infringement case.
Look at how much trouble that the RIAA Radar site has in identifying what is covered by the labels who the RIAA represents and who is not.
The major labels do nothing to aid in this identification. In fact they make it extremely difficult to do so. Major artists get the award of their own named label. It is still held by the major but it looks like it doesn't.
Knowing that lots of listeners are looking for the indies, they go as far as to try and hide that it's not an indie.
All this means you can't just look at the cd right off the bat without getting down with a magnifying glass to look if it is so labeled.
In the case of P2P and digital downloads, there is no physical label to read this on. I'm sure that the metadata has the name and even there, the metadata is changeable by whom ever had that copy before you or by the purchaser, if they are determined.
Nothing in digital is locked down that can not be unlocked by the determined, with a minor amount of effort and a good choice of search terms.
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Re: Should have known?
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Re: Should have known?
This is the equivalent of passing a secret law without letting anyone know what the law is and then enforcing the law on those who break it, despite the fact that there is no documentation telling us what the law is. You can’t pass a law saying “thou shalt not copy these songs” without first telling people what these laws are. Yet the RIAA gets to pass such laws with no oversight. They are basically a government body that passes secret laws that they then enforce on the masses without telling anyone what those laws are. Seriously, how is this even legal? At least with patents one might be able to do a patent search. In the case of copyprivileges, one can’t do a copyprivilege search because the **AA keep no records of what they hold a such privileges to. This is nonsense. We need some central database where everyone can search for works and know ahead of time what is and is not covered by copyprivlege law.
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Re: Re: Should have known?
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Re: Re: Should have known?
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Wow! You don't have to make it available, you don't have to distribute it, just download it.
This seems like a big win for the **AA.
May the fleas of a thousand camels infest their armpits.
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Re: YOU are stupid
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FUCK you R.I.A.A. and ALL that support your asshat bullshit!
R.I.A.A. = Real Ignorant Asshats of America
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Re:
They send out thousands of letters threatening to sue if people don't pay up. The ones that fight are their "victims".
You can see an example letter... http://net.educause.edu/ir/library/pdf/CSD4832.pdf
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Re:
Just FYI, here's the court document listing the 37 songs:
http://tinyurl.com/harpers37
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Harper's 37 Songs
http://tinyurl.com/harpers-37
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Little Detais
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Re: Little Detais
Who's talking about distributing property? I thought we were talking about copyright infringement. While infringement can be considered unlawful, you're going to have a harder time making a moral case, considering that her actions caused no harm to anyone else.
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Re: Little Detais
The laws regarding what songs we may and may not copy. Those are being hidden because the RIAA and the government just expects us to know this stuff by magic. I'm sorry, I'm not psychic, and the RIAA's and the courts and the laws position is absolutely preposterous.
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Re:
You'll have to be more specific than that, I don't see anything on the front of eff.org and I don't fancy exploring the whole site to chase a potential wild goose. Ditto with the law, which law? You haven't even narrowed it down to a country.
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Re: Re: Re:
What do you do when, having pretended to read all that, I come back and say 'no, you're still wrong'? Finally tell me what your argument is, or continue to chase me around in a circle by telling me I'm wrong again?
Idiot.
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How do they do it?
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Re: How do they do it?
Because Limewire may be anonymous in that you don't have to enter your real name, but the internet is not anonymous. It needs IP addresses to function. Think of it this way; Can you call someone if you don't have their phone number? Can anyone call you if they don't have your phone number? If you want them to be able to reach you, you need to give them your phone number. Let's say that you walk into a public place and announce what your phone number is. Nobody there has any idea what your name is or where you live, so you're "anonymous". However if one of the people in that place thinks you're doing something illegal, they can get a court order to force the phone company to tell them who that number is registered to.
IP addresses work the same way. When you download something, your computer "calls" the IP address of other users who have the file you want. As you download it, your copy of Limewire offers up a copy of that files to others, just as others offered it to you. Anyone can "call" your IP address and request a copy of that file. If it's a copyright file and the person requesting it happens to work for the music industry, they can track your IP address back to your ISP. They will then, through a series of legal loopholes, get a court order forcing your ISP to tell them who that IP address is registered to. At which point, you get a nasty surprise in the mail.
ALL file sharing software works this way. BitTorrent, Kazaa, eDonkey2000, Direct Connect, etc.
The only way to hide your IP address is to pay a monthly fee for a VPN service, which will then route all activity trhough other IP addresses so that the people on the other end have no way to see your IP address. Think of it like using 2-3 couriers in a row to deliver your messages, only the first one knows who you are.
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Re:
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The word "stealing" cant be used for downloading music. If someone were to steal a book or computer program, that is physical theft. it costs money to reproduce and distribute these materials and hence actually costs the company more money and is immoral and wrong as a whole.
However getting a digital copy of a song does not cost the record companies a single dime. They are suing for money they believed they are owed because of the "business that they lost" plus the costs of filing the suit and overhead. That is why its $750 per song.
You might be able to argue that its stealing on the basis of lost business HOWEVER, no one realizes that before the age of P2P programs and file sharing CDs were $20 minimum per album. THAT is why file sharing came to be. Can anyone recall how long the internet was around before file sharing came to be in demand?
They said the same thing about VCRs and Radios with tape decks when those came out. The media companies swore that both devices would be the death of media everywhere and we would soon have no more songs or movies because of these devices(sound familiar anyone, anyone?).
Not to mention the fact that in these cases there is very little to no information that says that these actual individuals downloaded and shared the songs. Ive even heard of a case where someone got rid of their old modem and got sued when the new owner was sharing music from the same modem.
Its pretty much extortion at this point.
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Re:
Depending on their intended meaning, yeah they can. Doing so is silly or deceptive though, because it tends to lead to a flawed comparison between distinct uses of the word.
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Re: Re:
Depending on their intended meaning, yeah they can.
Not honestly, it can't.
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Due Dilligence
You know what? Screw that shit.
Yow want music, movies, etc.? You might as well infringe then, because even if you try not to, you might accidentally do so anyway and innocent infringement is no defense under the law, it seems. In fact, if you go to a store and buy it then you're probably just giving money to the same people who will take that money and turn around use it to sue you (or your children) someday. Don't be stupid. Don't buy it.
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@ Clint Bradford
"Stealing is stealing. Would you sneak into your local book store, pocket a few books, and leave without paying?"
Is that all you got? That's like claiming at Pharyngula dinosaurs walked the earth along Adam and Eve. If you're going to be the new RIAA shill here you need to do some homework.
stealing - you lose your copy.
sharing - we both have it.
And btw, it's called infringement, not stealing. Were you lying or just ignorant?
Try answering this. I bought the LP, the tape, the CD and the remastered CD. I think someone owes me some money back since I paid for the right to listen to the same shit several times.
What about all the CDs I bought without having the right to listen to them before buying? There was a time when music stores did not have any previews at all. I remember because I bought many discs that ended up being totall crap with only one good song. If you buy a stereo system and you don't like it you can return it. Money back and no questions asked. Why is a CD different? We've all been ripped off after buying CDs we didn't like. Again, someone owes us a lot of money!
I was waiting for Mickey Mouse to enter public domain. As luck would have it, when it was about to happen the maffia bought the politicians, rewrote the law and made an extension. No public domain for Mickey. Nice, huh?
So if you're only go by the law when it favours you and change it accordingly because you have the power then I'm entitled to fuck you over. It's a two way street.
The copyright and "intellectual" property maximalists are the scum of the eath. They are the reason culture is a load of crap. Britney Spears, boys bands, corporate rock and drag queen Ga Ga. None of that would have happend before copyright.
The sooner we get rid of them the better.
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new RIAA shill
The viewpoint hasn't changed as they aren't taking in money hand over fist unless the product is scarce.
Best things for trolls is not to feed them. You're being short circuited on the feeding part as that is being taken care of off line.
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Apologies ...
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Re: Apologies ...
Thank you for admitting to your thievery. The RIAA will soon be over to your home to confiscate your computer, your albums, and while they're at it, your effective life.
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Re: Re: Apologies ...
But the case in the article here IS discussing a case where a person offered over 500 songs, and was sued over a couple dozen.
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Re: Re: Re: Apologies ...
http://www.washingtonpost.com/wp-dyn/content/article/2007/12/28/AR2007122800693.html
http ://gizmodo.com/gadgets/riaa/sony-bmg-making-one-copy-of-a-song-you-own-for-yourself-is-stealing-3068 35.php
Also educational for you and your iPod:
http://cyber.law.harvard.edu/property00/MP3/rio.html
Finally, since understanding words is so difficult for you:
http://dictionary.reference.com/browse/steal
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Re: Re: Re: Re: Apologies ...
Why have we lost common sense? When new record albums were released, I never dreamed of recording them to cassette and giving away copies to friends. But today, some people believe that everything should be free and freely disseminated.
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Re: Re: Re: Re: Re: Apologies ...
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Re: Re: Re: Re: Re: Apologies ...
More would be if copyright actually lasted a reasonable amount of time. The public domain is the rule and copyright is the exception, and copyright lasts way too long.
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Re: Re: Re: Re: Re: Apologies ...
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Re: Re: Re: Apologies ...
Heh, just because they haven't gotten around to it yet doesn't mean they don't consider it "theft".
When asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy, Jennifer Pariser, the head of litigation for Sony BMG, replied "Making "a copy" of a purchased song is just "a nice way of saying 'steals just one copy'."
So like the previous commenter suggested, you should go turn yourself in for theft now. Of course, you won't do that because industry shills are big hypocrites.
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Re: Apologies ...
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WINMX
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When you buy music from their bands, you support evil.
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While tells us that you haven't been responsible for any original works. If you had published a book ... or written music ... You'd probably think differently about existing copyright law.
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Re:
Actually, copyright doesn't just apply to books and music, it applies to most kinds of original, creative, intellectual works. And since copyright is automatic, I imagine that probably every commenter here has created copyrighted material. Even my comments here are copyrighted.
You'd probably think differently about existing copyright law.
And you'd probably think differently if you thought it applied to you. However, seeing as how you freely quote from other people's comments here (thief!), you apparently don't think it does.
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Re:
Thankfully nothing I have said hinges on whether the girl is feigning ignorance or not, so I'll presume you didn't mean me.
"Regardless of the RIAA's view point on back up files, they clearly are not very confident in the legal backing for this view point, as NO ONE here has been able to site case law."
Probably because no one had asked anyone to cite case law, because no one has claimed that there is any case law regarding that point. However, I can cite a brief from the RIAA that backs up the point: "Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use".
"So unless this is just a pissing contest of ad hominem attacks, you pro-freedom fighters might want to STFU already."
Either: I see what you did there; or you have no concept of irony.
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"As you will no doubt be aware, the plans for development of the outlying regions of the Galaxy require the building of a hyperspatial express route through your star system, and regrettably your planet is one of those scheduled for demolition. ..... What do you mean you've never been to Alpha Centauri? For heaven's sake, mankind, it's only four light-years away, you know. I'm sorry, but if you can't be bothered to take an interest in local affairs that's your own lookout. Energize the demolition beams."
-- The Hitchhiker's Guide to the Galaxy by Douglas Adams.
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