Can The Government Use The Term 'Music Piracy' In A Criminal Copyright Trial?

from the apparently dept

Mon, Mar 22nd 2010 10:54am — Mike Masnick

Via Michael Scott, we learn that there was recently a debate over whether or not the government could use the phrase "music piracy" to describe the actions of an individual who had been charged with criminal copyright infringement. The case involved Adil Cassim, who had been arrested last year and charged with running a "release group," which are the private networks of people online who work hard to get unauthorized copyrighted materials (music, movies, etc.) distributed as quickly as possible. While Cassim was apparently acquitted by the jury (so far, I can't find any more info on what happened... Update: TorrentFreak has some details), there was a discussion over how the gov't could refer to his actions. His lawyer argued that "music piracy" is a prejudicial term, not related to the issues in the lawsuit, and that the gov't should not be allowed to use that term in front of the jury. The judge denied this:

Defendants seeks to exclude any use of the terms "music piracy" from the jury. They argue that this term is not evidentiary, has no probative value, and is highly inflammatory such that it will create undue prejudice. The Government, in response, argues that this term would be highly probative of the Defendants' knowledge of the unlawful object of the conspiracy. The Court finds that, because this term was and is commonly used to refer to the conduct in question, it will be difficult for witnesses and lawyers to generate an adequate substitute during questioning. It need not, therefore, be entirely excluded. However, the Court invites counsel for Defendants to suggest any possible limiting instructions which, if offered to the jury, might mitigate any possible prejudice that the term might create.

However, as Ray Dowd points out in the link above, this doesn't seem to make much sense. The word piracy is not in the statute, and the crime he's charged with is criminal copyright infringement, not piracy, so there's no reason that the proper terms can't be used:

I have litigated many copyright infringement cases without the need to refer to the word "piracy" though as a civil plaintiff it is a nice synonym referring to a person who makes multiple exact duplicates, rather than someone who borrowed portions of a copyrighted work. But it certainly is not necessary in a civil proceeding and would appear to me to be highly improper to use in a criminal proceeding.

Of course, since the guy was acquitted anyway, perhaps the entertainment industry is correct that "piracy" isn't derogatory enough anymore.

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Filed Under: adil cassim, copyright, copyright act, criminal copyright infringement, music piracy, release group

24 Comments

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Ima Fish (profile), 22 Mar 2010 @ 11:11am

In my state what is commonly called "rape" is now called "
"criminal sexual conduct."

And you cannot use the term "rape" during the trial.
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- :Lobo Santo (profile), 22 Mar 2010 @ 11:37am
  
  Re: Ah...
  Political Correctness--is there nothing to which it cannot add more useless syllables?
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  - Ima Fish (profile), 22 Mar 2010 @ 11:49am
    
    Re: Re: Ah...
    Certainly calling actual rape (violent and forced sexual intercourse) CSC is politically correct. The problem is that acts that were not criminal in the good old days were still being referred to as rape. So the legislature changed the name.
    
    For example, is it really "rape" when two 15 year old kids have consensual sex? Is it really "rape" when a guy grabs a woman's ass?
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    - :Lobo Santo (profile), 22 Mar 2010 @ 11:54am
      
      Re: Re: Re: Ah...
      You make an excellent point there, as I'd not considered that possibility.
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  - FormerAC (profile), 22 Mar 2010 @ 11:53am
    
    Re: Re: Ah...
    You must have missed the memo ... we no longer use the term Politically Correct as that implies it has something to do with politics, and as you elected representatives, we would like to avoid being associated with this (or any) issue.
    
    Please use Socially Acceptable Stigmaless Terminology instead.
    
    Thanks for you assistance in this matter.
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    - BearGriz72 (profile), 22 Mar 2010 @ 2:07pm
      
      Re: Re: Re: Ah...
      Acceptable Stigma-less Social Hate Absent Terminology
      
      Or ASSHAT for Short
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      - The Mighty Buzzard, 22 Mar 2010 @ 2:41pm
        
        Re: Re: Re: Re: Ah...
        You are my new freaking hero.
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    - Anonymous Coward, 22 Mar 2010 @ 7:50pm
      
      Re: Re: Re: Ah...
      In other words, you no longer use the term, political correctness, because the use of such a term is not politically correct.
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- Jaws4theRevenge, 22 Mar 2010 @ 11:54am
  
  Re:
  Ah, I was wondering why some 12-year-old kid told me that he "totally committed criminal sexual conduct" with me on Xbox Live... now it all makes sense.
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- JEDIDIAH, 23 Mar 2010 @ 6:37am
  
  The Law versus the vernacular
  There are plenty of terms that have a particular meaning in law that don't necessarily conform to the vernacular. Also, the vernacular is often hijacked by activists with a particular axe to grind. The media (both fiction and journalists) happily go along in perpetuating these misconceptions.
  
  What is or is not "murder" is a good example of this.
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- Rob.Etler (profile), 23 Mar 2010 @ 1:31pm
  
  Re:
  Much like how criminals are now "clients of the correctional institution." Which always invokes images of convicts in offices wearing three-piece suits and ankle cuffs.
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RD, 22 Mar 2010 @ 11:49am

Never mind the fact
Never mind the fact that piracy, as defined, has NOTHING to do with infringement, as it requires actual physical theft, damage, a boat or vehicle, kidnapping or imprisonment of the victim, robbery at gunpoint, or under duress, and occasionally, murder.

I defy ANY of the industry apologists to justify the use of such a term as relates to making a DIGITAL COPY of a song that is SHARED FREELY WITH OTHER PEOPLE. Please. Enlighten us as to how this is right or moral, or even factual under the law.
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- Anonymous Coward, 22 Mar 2010 @ 12:15pm
  
  Re: Never mind the fact
  Because some 200 or so years ago, it was described, the act of physically printing and distributing actual books, as "pyracy" and whatnot.
  
  I think it was reasoned, at the time, that the act of physically printing and distributing actual books was like pirates plundering the publisher's profits.
  
  How this all relates to what's happening in the 21st century?
  
  I have no idea but who doesn't love a good pirate story?!?
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Mike C. (profile), 22 Mar 2010 @ 12:05pm

Of course...
I say LET the government use the term "piracy" in relation to copyright infringement....

... as long as the defense team is allowed to read the definition of piracy from the United Nations Convention on the Law of the Sea and pose the question how copying a file relates to same.

Should be fun.
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Overcast (profile), 22 Mar 2010 @ 12:46pm

Someone!! Run out and copyright, "Music Piracy".

Then it's a done issue :)
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Colg, 22 Mar 2010 @ 2:09pm

Pirates
"Pirate" in refrence to general computer naughtiness has been used for a very long time.

the following comic is from 1983:
http://www.gocomics.com/feature_items/explore?page=14&tag=16626
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- Colg, 22 Mar 2010 @ 2:29pm
  
  Re: Pirates
  Actually I guess the term in refrence to music is older
  
  Article from 1897:
  http://www.gloriousnoise.com/links/2009/music_pirates_in_canada_1897.php
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RD, 22 Mar 2010 @ 3:02pm

Yes, however...
"Because some 200 or so years ago, it was described, the act of physically printing and distributing actual books, as "pyracy" and whatnot.

I think it was reasoned, at the time, that the act of physically printing and distributing actual books was like pirates plundering the publisher's profits."

Right, however that is actually counterfeiting. Today that would be the equivalent of knock-off Gucci bags. These are physical items that are made from scarce materials to fake the real item.

"Pirate" in refrence to general computer naughtiness has been used for a very long time.

the following comic is from 1983:"

Yes, this term has been used in the computer/tech area for decades. The point, however, is that its NOT a legal term, and has no place in a lawsuit as it is NOT codified in law that piracy=infringement. Its a popular term, but much like "Intellectual property", its a made-up term and not one that exists anywhere in law. Definitions are specific when it comes to a courtroom, as otherwise people would be able to argue the point and wiggle out of things.
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- Anonymous Coward, 22 Mar 2010 @ 4:16pm
  
  Re: Yes, however...
  Remember when intellectual property was actually called intellectual privilege?
  
  Good times.
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Anonymous Coward, 22 Mar 2010 @ 7:59pm

I think it's disgraceful that we would waste tax dollars to criminally enforce some retard laws that don't belong. Now everyone is a criminal and this will only serve to change how people think of the word criminal by making criminals more socially acceptable.

Think of that song by Eminem. "I'm a criminal." It is certainly possible to make people think a "criminal" is
"cool", and when everyone can call themselves a criminal for doing something small now everyone is a criminal and it's "cool".

and I can imagine what it would be like going to jail for copyright infringement.

Copyright infringer: What are you in jail for?

True criminal: I stabbed 3 people. and you?

Copyright infringer: I copied music illegally.

Should we end up putting non violent people in jail for no good reason as well? If anything, as Mike has pointed out before, it will serve to turn them into true criminals if they are forced to hang around those true criminals.
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Anonymous Coward, 22 Mar 2010 @ 8:09pm

Perhaps we can rename the pirate party to the criminal crusaders.
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Anonymous Coward, 23 Mar 2010 @ 10:47am

This statement is a joke, right?
"However, as Ray Dowd points out in the link above, this doesn't seem to make much sense. The word piracy is not in the statute, and the crime he's charged with is criminal copyright infringement, not piracy, so there's no reason that the proper terms can't be used..."

Mike, you are a really bright guy, so either you were just trying to provoke conversation, or being sarcastic, or something, but you could not have been serious.

During trials both sides choose words that put the other side into the worst light possible. In many cases the statutory language is almost never used.

Which sounds worse?

You honor, the defendant committed a tertiary infraction (statutory language), leading to a hazardous act, in which property damage and injuries occurred (statutory language).

This language is pretty much used in statutes. How often is it really used? Contrast that with what the state's attorney actually said:

You honor, the defendant blew through a stop sign (non-statutory, but certainly descriptive) at an estimated 38 miles per hour, slamming into a vehicle that had legally entered the intersection under the speed limit, causing the vehicle to be completely demolished (non-statutory language) and severely injuring the driver and passenger of that vehicle, causing bruising, a neck injury, a broken arm and massive amounts of fear and anxiety (non-statutory language).

As long as the description is reasonably accurate, why should anyone, either the prosecution or the defendant, be limited to statutory langage? Even if you did that, all the side that benefits from non-statutory language would do is spend a ton of time defining what the statutory language means so that us commoners could understand it, and then they would use it anyway.
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Anonymous Coward, 23 Mar 2010 @ 2:18pm

It doesn't need to be in the statute
I love the jailhouse (or is it schoolhouse) lawyers taking umbrage at the idea that prosecutors called criminal copyright infringement "music piracy." "Piracy" certainly seems preferable to terms like "theft." (Mike has written extensively in previous posts about the problems fitting that term to infringement.) And as others note above, like it or not, "piracy" has been used to describe infringement for over a century. I suspect these same commenters don't really understand their own complaints, and would be saying the same things if, instead of objecting to the term "music piracy," the defense has instead objected to calling it "criminal copyright infringement." Remember, the defendants hadn't yet been convicted, so if your complaint is that the defendants were being accused of something they hadn't been convicted of doing, that complaint holds for calling them "copyright criminals" or their acts "criminal copyright infringement" as well. On the other hand, if your complaint is that the prosecutors weren't supposed to use words other than those outside the statute, it's really hard to see what the big deal is. Prosecutors, plaintiffs, and defendants do this all the time. No, the criminal copyright statute doesn't use the word "piracy." But it doesn't use the words "upload," or "download," either, and yet these things can constitute infringement under certain circumstances. By the same token, state murder statutes sometimes use the term "kill," and sometimes "cause the death of," but I've never heard a defendant succeed in claiming that it's too prejudicial to accuse him of "killing" someone when they statute requires only that he "caused the death of" someone.
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Damien Bizeau, 9 Jul 2010 @ 1:48am

Eric Vermote - Piracy expert
Several years ago I denounced a music piracy case caused by a NASA contractor and University of Maryland scientist/professor: Dr. Eric Vermote from France. This man used peer to peer technology to create CDs for third party distribution to his friends; the home computer lab he was using for his peer to peer activities contained a NASA computer keyboard and he was using his NASA based E-mail account to communicate with third parties about his amateur counterfeit CDs. NASA and the FBI did not take the case seriously and no legal action was taken against Dr. Eric Vermote to my knowledge. The RIAA has a lot of work waiting in my humble opinion (FROM: Damien Bizeau - International artist, Promoter and Producer, France).
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