Did The RIAA Just Destroy Its Own Argument Concerning Innocent Infringement?

from the whooops dept

Tue, Aug 24th 2010 5:29am — Mike Masnick

We just saw that amicus briefs are being filed over whether or not the Supreme Court should hear the case concerning whether or not an "innocent infringement" defense is a legitimate defense to an RIAA file sharing lawsuit. If you don't recall, a district court found that a teenager's claim of "innocent infringement" -- which knocks the potential statutory minimum down from $750 to $200 -- was a legitimate defense. An appeals court overturned the ruling, and said that the girl, Whitney Harper, should have known that downloading music was infringing because any CD has a copyright notice (even though she never saw the CDs of the music she downloaded).

I have no idea if the Supreme Court will take the case, but the JoelFightsBack website is pointing out that RIAA boss Cary Sherman, in a recent interview, appears to have undermined the industry's own claims in a recent interview with Vice magazine:

The time had come to shift over to a strategy that would be more effective. The lawsuits were obviously controversial in the media, but the reality was that most people had no idea that what they were doing was illegal at the time of those lawsuits. We did all sorts of surveys. We tried PR firms. We did everything to look at how to begin to change the culture of using illegal P2P. We realized that 1) none of the messages resonated, and 2) most people had no idea that what they were doing was illegal, let alone thought it was wrong. That completely flipped overnight when we started the lawsuits. It made an enormous impression and we were constantly generating dinner conversations about what you may or may not do with your computer. We think it would be very good if there were more such conversations about all the other things that can be done inappropriately with a computer. So we think it had a tremendous impact by very clearly searing in the minds of the public that maybe getting all of this stuff for free isn't legal after all.

That seems to undermine the claims that of course people knew it was illegal, doesn't it? Not surprisingly, the Sherman interview is chock full of other bizarre statements. Even just this one little quote is pretty funny with him trying to somehow redefine the lawsuits as a successful PR strategy. Of course, if they were actually successful in educating people, then wouldn't there be fewer people accessing unauthorized music today than when they started? Of course, the exact opposite is true. The rest of the article is filled with similarly laughable attempts by Sherman to pretend that the RIAA's strategy over the past decade has been successful, rather than a complete disaster that has helped the major record labels speed up their own demise.

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Filed Under: cary sherman, copyright, innocent infringement, supreme court, whitney harper
Companies: riaa

44 Comments

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rw (profile), 24 Aug 2010 @ 5:27am

Well, it did get people talking about it, and then going out to download stuff themselves.
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Adam, 24 Aug 2010 @ 5:59am

Yep #1 asked question in my family when all this hit the media was "Whats this P2P stuff and how can I get free music?"
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Anonymous Coward, 24 Aug 2010 @ 6:04am

This article is like saying, "I can't believe The Joker laughs when he blows up hospitals! Doesn't he know there are sick people in there?!".

Of course the RIAA folks are two-faced and contrary. They're the closest thing in the real world to actual comic-book villains.
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Sean T Henry (profile), 24 Aug 2010 @ 6:06am

I did not know about p2p till Napster was placed in the media lights. During that time I found out about so many new bands since you could look at others files and see what they listened to.
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Anonymous Coward, 24 Aug 2010 @ 6:40am

Even the boss doesn't know what the RIAA policy is! Laughable but soooo typical.
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icepick314, 24 Aug 2010 @ 6:44am

we can use that interview in court for all those lawsuits, right?

yay for innocent infringement!!!!
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Super Official RIAA spokesperson, 24 Aug 2010 @ 6:44am

Boom, justified.
Well they didn't know, but they did know, you know?
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cc (profile), 24 Aug 2010 @ 6:45am

Re:
"Of course the RIAA folks are two-faced and contrary. They're the closest thing in the real world to actual comic-book villains."

This is the funniest thing I've read all week :D
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average_joe (profile), 24 Aug 2010 @ 6:54am

That seems to undermine the claims that of course people knew it was illegal, doesn't it?

That wasn't the claim in Harper's case. The issue was whether or not Harper could invoke the innocent infringer provision of 17 U.S.C. § 504(c), which states:

"In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."

The district court allowed Harper to make an innocent infringer defense to mitigate her damages. The Fifth Circuit reversed holding that the innocent infringer defense was foreclosed by 17 U.S.C. § 402(d), which states:

"If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages . . . ."

The Fifth Circuit got it right. What 17 U.S.C. § 504(c) giveth, 17 U.S.C. § 402(d) taketh away.

Her "innocence" was immaterial as a matter of law.

Of course, if they were actually successful in educating people, then wouldn't there be fewer people accessing unauthorized music today than when they started? Of course, the exact opposite is true.

Whether or not more people accessed unauthorized files is a completely different matter than whether or not they knew it was infringement. Why conflate the two?
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Hephaestus (profile), 24 Aug 2010 @ 6:57am

Re:
"when all this hit the media was "Whats this P2P stuff and how can I get free music?""

Its so funny, that seemed to be the typical question I heard also. Everything they try seems to have to opposite effect. I hope Cary Sherman continues down the path he is following. Its really interesting to watch.
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Hephaestus (profile), 24 Aug 2010 @ 7:02am

Re:
"They're the closest thing in the real world to actual comic-book villains."

To funny. We should publish a graphic novel version of the history of RIAA. What kind of outfit should Cary Sherman wear as the villan? I was thinking red spandex with a canary yellow cape.
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Anonymous Coward, 24 Aug 2010 @ 7:03am

Re:
Please correct me if I am wrong, but the RIAA is not a party to the case, and a comment about this subject carries no weight.
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Anonymous Coward, 24 Aug 2010 @ 7:09am

That guy is funny:

"There were cyber-attacks and so on, but the truth is all of that is in the distant past. Now the internet has become a little more civilized."
Cary Sherman president of the RIAA’s board of directors (2010)

"How does the RIAA calculate potential profit loss from illegal downloads?
We don’t.
"
Cary Sherman president of the RIAA’s board of directors (2010)

"We’ve been in talks with ISPs for a while, trying to develop a program that everybody’s comfortable with—one that is very fair and balanced and that is clearly educational".
Cary Sherman president of the RIAA’s board of directors (2010)
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Anonymous Coward, 24 Aug 2010 @ 7:09am

Ignorance is never a defense.
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average_joe (profile), 24 Aug 2010 @ 7:11am

Re: Re:
The plaintiffs were: MAVERICK RECORDING COMPANY, A California Joint Venture; UMG RECORDINGS INC, A Delaware Corporation; ARISTA RECORDS LLC, A Delaware Limited Liability Company; WARNER BROTHERS RECORDS INC, A Delaware Corporation; SONY BMG MUSIC ENTERTAINMENT, A Delaware General Partnership
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average_joe (profile), 24 Aug 2010 @ 7:17am

Re:
It's not a defense in that an alleged infringer can escape liability, it's a defense in that an infringer can mitigate their damages.
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Anonymous Coward, 24 Aug 2010 @ 7:23am

Re:
"If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages . . . ."

How do you prove that the defendant had access or not to a published warning in a phonorecord?

The assumption was that if it had been imprinted on a CD that was enough and implies that owning a CD is enough to take away that defense.

But there is a but there, CD's and streaming are different mediums and are charged differently, just like radio is a different medium and one could argue that internet downloading is more close related to radio than to a physical CD, and therefore there was no warning in there anywhere and that defense should be allowed to continue.
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Free Capitalist (profile), 24 Aug 2010 @ 7:28am

Re:
Whether or not more people accessed unauthorized files is a completely different matter than whether or not they knew it was infringement. Why conflate the two?

The article, in addition to discussing how defendants did not know what they were doing was illegal, also noted that RIAA brass felt the spray of litigation amounted to a successful PR campaign. (Which strikes me as odd, as I thought use of the judicial system for this purpose was illegal).

I see no conflation on Mike's part... but I do see conflation.

RIAA's lawsuits were demonstrably a successful PR campaign... for the use of P2P to get "free" music.
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Anonymous Coward, 24 Aug 2010 @ 7:32am

Re:
Besides every law has an intent and that should be taken into consideration, what was the intent of that law in the first place?

Without that and the other considerations mentioned on the other post you cannot infer if her "innocence" was immaterial or not.

More if P2P is another medium that had no warnings, it makes a lot of difference if people were aware of the legality of it all at the time.

The one point I would agree with you is that it seems to be irrelevant to the case to note how much unauthorized file sharing expanded or contracted, but I could be wrong and someone clever could point to a relation at some point in the future that I am missing now.
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average_joe (profile), 24 Aug 2010 @ 7:37am

Re: Re:
I read it a bit differently. He was saying that the PR campaign was successful because it got the message out there that file sharing was illegal. The conflation is saying that since more people infringed, the message that infringement is illegal wasn't being spread. More people can know that it's illegal yet still infringe. If the goal was to spread the message that infringement was illegal, then the PR campaign was successful.
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Anonymous Coward, 24 Aug 2010 @ 7:52am

"The article, in addition to discussing how defendants did not know what they were doing was illegal, also noted that RIAA brass felt the spray of litigation amounted to a successful PR campaign. (Which strikes me as odd, as I thought use of the judicial system for this purpose was illegal)."

Well, it certainly wasn't successful from any sort of legal standpoint. They lost a boatload of money, didn't put a dent in piracy, and made a normally indifferent public hate them.
With PR like that its a good thing for them, people are dumb enough to pay $15-$20 for movie tickets or a craptastic plastic disk.
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Hulser (profile), 24 Aug 2010 @ 7:54am

Re:
"If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages . . . ."

If I read this correctly, it appears to be saying that, if you have access to a CD, but don't own the CD, and the CD has a copyright notice on it and you download songs from that CD, damages can't be reduced based on "innocent infringement". But as Mike points out, "she never saw the CDs of the music she downloaded" as I'm sure the vast majority of downloaders didn't.

So, how is 17 U.S.C. � 402(d) even relevant here? It seems like for this section to be relevant, you'd have to prove that the defendant either saw someone else's copy of the CD or actually owned the CD themselves.
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Hulser (profile), 24 Aug 2010 @ 8:02am

Re:
RIAA, "People don't know that it's illegal to download copyrighted songs from the Internet, so we'll have a PR campaign based on suing thousands of individuals. To make sure that the message has the most impact, we'll prove beyond a shadow of a doubt that each person we sue knew that downloading copyrighted material from the Internet was illegal so that we can maximize the damages. Wait...oh shit. We've made a huge mistake."
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average_joe (profile), 24 Aug 2010 @ 8:20am

Re: Re:
If I read this correctly, it appears to be saying that, if you have access to a CD, but don't own the CD, and the CD has a copyright notice on it and you download songs from that CD, damages can't be reduced based on "innocent infringement". But as Mike points out, "she never saw the CDs of the music she downloaded" as I'm sure the vast majority of downloaders didn't.

So, how is 17 U.S.C. � 402(d) even relevant here? It seems like for this section to be relevant, you'd have to prove that the defendant either saw someone else's copy of the CD or actually owned the CD themselves.

It doesn't matter if Harper saw the CD, it only matters that she could have seen the CD, i.e., she had access. That's how courts interpret § 402(d).
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Free Capitalist (profile), 24 Aug 2010 @ 8:20am

Re: Re: Re:
The conflation is saying that since more people infringed, the message that infringement is illegal wasn't being spread.

Once again, that is not Mike's conflation.

Looking back on it, they may have gotten their "message" out that "getting free music over P2P is illegal", but apparently lots of people only heard the "getting free music over P2P" bit.

If that makes the RIAA brass want to don their flight suit and declare "mission accomplished", more power to them.

I would still like to know why corporations are welcome to start social engineering campaigns using the justice system as their puppet, but not individuals.
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Anonymous Coward, 24 Aug 2010 @ 8:20am

Re: Re: Re:
File sharing is not illegal. In certain cases it could be but such a blanket statement . . . .
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average_joe (profile), 24 Aug 2010 @ 8:24am

Re: Re: Re: Re:
Yeah, I hear ya. I don't know if I'd call it a PR victory either. If their goal was to spread the word that file sharing is illegal, then they did that. Good for them. LOL!
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average_joe (profile), 24 Aug 2010 @ 8:25am

Re: Re: Re: Re:
I should have said "illegal file sharing was illegal." Thanks for catching that. ;)
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cgibinladen, 24 Aug 2010 @ 8:32am

I love it. There are lots of people I know who, upon hearing about these lawsuits, said to me "Wait, you can download movies for free?" and now never pay for content... they should have also released a statement saying "Here's a big red button... but definitely don't push it..."
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Hulser (profile), 24 Aug 2010 @ 8:35am

Re: Re: Re:
It doesn't matter if Harper saw the CD, it only matters that she could have seen the CD, i.e., she had access. That's how courts interpret § 402(d).

Really? Don't lawyers usually use some fancy latin term to distinguish a fine legal point from normal language i.e. "access"? Because, to me, "access" means that it's in my possession or very easilly could be. Not that I could drive to one of the few malls that still have a store that sells CDs, find the exact CD that I'm going to download when I get home, and read its copyright notice. This definition is so broad as to render the clause meaningless.
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Greevar (profile), 24 Aug 2010 @ 8:44am

http://www.youtube.com/watch?v=u5um8QWWRvo

This video from RSA Animate about the dangers of positive thinking really points out the the likes of the RIAA's error on claiming their tactics against piracy are successful despite reality.
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average_joe (profile), 24 Aug 2010 @ 8:53am

Re: Re: Re: Re:
You could certainly make those arguments. Prof. Nesson is doing just that in his amicus brief to the Supreme Court. (I don't think the Court will take the case though.) The little case law I've looked at interprets it to mean that as long as the CD has the notice, the infringer is imputed with the knowledge that the work is copyrighted. There's good arguments on both sides of the debate, and this topic is on my short list of things I'm looking at for a paper topic for school. I do think that if things are going to change here, it's going to be the legislature that changes it, not the courts.
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Patrik, 24 Aug 2010 @ 9:46am

Re: Re: Re: Re: Re:
^^^ Now *that's* some funny stuff.
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Anonymous Coward, 24 Aug 2010 @ 10:13am

This is a case of actual knowledge vs constructive knowledge. The RIAA is trying to say that while people had no ACTUAL knowledge it was illegal, they had constructive knowledge (i.e. they SHOULD have known it was illegal and thus will be treated as if they had that knowledge). That's my guess. One of the reasons constructive knowledge as a doctrine can suck.
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Karl (profile), 24 Aug 2010 @ 10:14am

Re:
"Don't touch that! It's the History Eraser Button!"
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Anonymous Coward, 24 Aug 2010 @ 10:54am

Re: Re: Re:
It doesn't matter if she saw a CD or owned a CD, the question is this one. Since it is a different media, it most probably had different rules just like the itunes or radio, did she ever used a service that had a notice on it? did ever radio stations notify people that it is illegal to record them? do the services she used had a notice that she could see?

Probably not and that is all the defense she needs to reduce the damages, coupled with the statement from the RIAA president saying people really didn't know about it and they confirmed that with research it does seems not only possible that she didn't know about but never ever saw a notice about those things in the services she used.
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Anonymous Coward, 24 Aug 2010 @ 11:04am

Re:
The law states it needs to have a warning, and here is the catch, can a warning for one type of product affect other products?

Radio is different from a CD and those are different from streaming and P2P.

People can't know about all the vagaries of licensing they are not lawyers and didn't study and even the RIAA knows that people didn't know it was illegal.

This is where it will get tricky. Why is that they are using the CD to prove warning to exclude some defense right when the media used is not a CD?

The licensing terms for internet base companies are equal to CD distribution companies? or equal to Radio licenses?

No, so why is that they are using the CD license to negate the defense?
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Anonymous Coward, 24 Aug 2010 @ 11:07am

Re: Re: Re: Re: Re:
And as it was pointed out to you.

The CD argument is good but has its flaws too.

Why it is that a different media license is being used to judge anything?

CD licenses are equal to radio licenses? or to internet radio licenses or to licenses on itunes?

At the time there was no licenses on the internet, there were no stores on the internet selling music so there was no published warnings for the media in question was there?
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average_joe (profile), 24 Aug 2010 @ 11:37am

Re:
That's the right idea, but it's slightly more nuanced than that. The plaintiffs are saying that the innocent infringer defense is foreclosed under 17 U.S.C. § 402(d). Period. The rationale behind 17 U.S.C. § 402(d) is constructive knowledge along the lines of what you're saying. Plaintiffs invoked the statute, not the rationale behind it. The rationale was Congress'.
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JEDIDIAH, 24 Aug 2010 @ 12:17pm

BT is only mostly pirated.
The RIAA seems to want to establish the notion that stuff shared on the Internet should always be assumed to be piracy. There is no such thing as Free Software or Creative Commons. If you are sharing, it's illegal.

They want to scare people away from gratis stuff on the web even if it is legitimate.
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drm made me into a pirate? (profile), 25 Aug 2010 @ 2:00am

IGNORANCE of the law... REVEALS there are way TOO MANY LAWS
A nation of laws = good

A nation oozing officious laws = BAD

.

justice = good

mercy = better

drm/dmca/soholicensing = getting raped by evil
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Niall (profile), 25 Aug 2010 @ 10:19am

Re: Re:
Brilliant! Except for the last line, which will never happen, even when they are declaring bankruptcy...
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Niall (profile), 25 Aug 2010 @ 10:24am

Re: Re: Re: Re: Re: Re:
Wouldn't this then get abused in EULAs?

"Your Honour, the plaintiff clearly accepted the unseen EULA hidden inside the shrink-wrapped packaging because they /could/ have tracked down an already opened copy and read it, even though they acquired the software on the very day it was released."
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Niall (profile), 25 Aug 2010 @ 10:27am

Re: Re: Re: Re: Re: Re:
"Also, Your Honour, the fact that it was written in Ancient Sumerian should in no way detract from the plaintiff's responsibility to find a company-authorised translator and have the EULA translated at their own expense. The fact that they didn't can in no way contribute to a supposed defence of 'innocent infringement'."
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