Supreme Court Asked To Explore Whether 'Innocent Infringement' Is A Legit Response In File Sharing Cases

from the might-not-matter-after-acta... dept

A few years back, we wrote about a teenager who used "innocent infringement" as a defense to an unauthorized file sharing lawsuit brought against her by the RIAA. Innocent infringement is in the law, as a way to reduce the statutory awards from the $750 minimum to $200. It doesn't absolve the person or get them out of paying, but can greatly lower the amount. The district court agreed, and said she could just pay the $200 rate. However, an appeals court overturned, saying that because CDs have copyright notices on them -- even though the girl never saw the CDs -- the girl should have known that the mp3s were infringing. The logic there made very little sense. How can you hold someone to a clause that was never seen?

The girl's lawyers have now appealed the case to the Supreme Court, which now has the option of weighing in on the matter (the Wired article linked here is a little misleading, in that at the beginning and in the headline, it implies that the Supreme Court has agreed to hear the case). If I had to guess, I'd say the Supreme Court won't take the case, even though it is an important issue.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, May 28th, 2010 @ 7:07am

    Given all the propaganda since the days of "Don't Copy That Floppy" and before, is innocent infringement valid. I'm not arguing the rightness or wrongness of infringement at all here. I'm just wondering how it could be innocent when the IP industry has been forcing their "message" down our throats for so long.

     

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  2.  
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    The other coward, May 28th, 2010 @ 7:19am

    @Anonymous Coward,
    The question is whether she thought what she was doing was illegal. She may not have as many people don't really consider the ramifications of downloading things from a torrent (or similar), especially years ago when this apparently occurred.

    The scary part is that if somewhere there is a posted notice that what you're doing might be illegal, you're responsible to know it and understand it completely. Copyright law is extremely complex and not obvious to most people. You can't be given a blank slate to break the law, but at the same time there needs to be some leniency and rationality thrown into the mix.

    Take downloading a MP3 of a song I purchased on CD. What about making a mix tape? Are those copyright violations? Probably, but the vast majority of people see nothing inherently wrong with it. It's not morally wrong to them. Many people would not think it's illegal. So if I put up some warning in some random location, you're expected to know it and therefor you're maliciously breaking my copyright and liable for tens of thousands of dollars (to over a hundred thousand) in damages. It's rediculous.

     

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  3.  
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    Anonymous Coward, May 28th, 2010 @ 7:22am

    Even aside from not seeing the copyright notice on the CDs, if the girl understood file sharing to be the same as Internet Radio, how could she know that the sharing was unauthorized? No one pays anything to listen to regular Radio, and presumably there were no notices on the website saying these these were unauthorized files.

    This takes on more weight, I think, in light of the fact that some artists (Trent Reznor comes to mind) have used peer-to-peer networks to distribute authorized copies of copyright-protected works, so the simple fact that the files were on a p2p network doesn't seem to be invincible proof that they were unathorized.

     

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  4.  
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    NAMELESS.ONE, May 28th, 2010 @ 7:36am

    I have a new theory called Burger King

    Yes folks this type a law practicing is proof of concept that Burger king is being harmed cause they are having fewer people to choose employees from. YES instead of these folks working at burger king they are taking up MASSIVE tax dollars and wasting vast amounts of time on STUPID RETARDED SIMPLE MORON CAN TELL YOU CASES.

    YES ALL of IP law falls into the burger king theory and it flips JUST one way into the lawyers pockets. If this continues there will be no tim hortons or star bucks employees and soon no farmers left neither everyone will be a lawyer suing someone about somehting and BURGER KING will become bankrupt

     

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  5.  
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    Richard (profile), May 28th, 2010 @ 7:40am

    Re:

    She was 16 at the time and hence may not have been exposed to the propaganda for as long as the rest of us.

    Also, quite a lot of that propaganda goes well beyond the real legal situation, which rather undermines its value as a legal benchmark.

    Also the issue of innocence must be evaluated against the actual circumstances. There are many things that can be downloaded or even uploaded legally. General sloganising about IP doesn't amount to any real information about a particular circumstance.

     

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  6.  
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    Hephaestus (profile), May 28th, 2010 @ 7:52am

    Re: I have a new theory called Burger King

    Are you a really poorly designed homebrew AI designed to cause people headaches?

    David (takes an asprin)

     

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  7.  
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    Marcel de Jong (profile), May 28th, 2010 @ 7:53am

    Re:

    You can't also know for sure that the movie or cd you are downloading is an illegal source.
    Lots of bands nowadays use bittorrent and other p2p services to promote/distribute their wares.
    So, how can a 'simple consumer' tell, what is a legal offering, and what's not?

     

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  8.  
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    Marcel de Jong (profile), May 28th, 2010 @ 7:56am

    Re: I have a new theory called Burger King

    Wow, Rick Cotton? Is that you?

     

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  9.  
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    Technopolitical (profile), May 28th, 2010 @ 7:57am

    I withold comment till the court rules.

    But I predict , they will say: Lack of knowledge of the law , does not excuse crime

     

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  10.  
    identicon
    Wolfy, May 28th, 2010 @ 8:02am

    Re: Burger King

    No, he's not an AI, just the product of the U.S. educational system.

     

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  11.  
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    Hephaestus (profile), May 28th, 2010 @ 8:04am

    Re: I withold comment till the court rules.

    As the Google-Youtube viacom case shows, you just cant tell what is infringing. I guess it is best to stay away from label music altogether ...

     

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  12.  
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    Hephaestus (profile), May 28th, 2010 @ 8:05am

    Re: Re: Burger King

    Dude to funny !!!

     

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  13.  
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    Comboman (profile), May 28th, 2010 @ 8:17am

    Re: I withold comment till the court rules.

    This is civil law, not criminal law. If someone can be held to the terms of a contract they've never seen, then what's to stop me from creating a contract that says "anyone who downloads this file owes me $1000 and anyone who doesn't download this file owes me $2000."

     

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  14.  
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    The Devil's Coachman (profile), May 28th, 2010 @ 8:24am

    Burger King Theory? Off your meds today?

    I have no idea what point you are trying to make here. Neither, I suspect, do you. Please desist from posting until your medications stabilize. Or perhaps you've stopped taking them entirely? Read the label on it or the package insert, and I'm sure you'll find words to the effect that sudden cessation of the drug can have serious side effects, as we all know you are now doubtless well aware of. Unfortunately, doubling up on skipped doses is not generally recommended, but if you go back to bed right now, and take it as soon as you get up tomorrow, I'm sure you'll feel much better then. So will we.

     

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  15.  
    identicon
    RD, May 28th, 2010 @ 8:27am

    Re: Re: I withold comment till the court rules.

    "This is civil law, not criminal law. If someone can be held to the terms of a contract they've never seen, then what's to stop me from creating a contract that says "anyone who downloads this file owes me $1000 and anyone who doesn't download this file owes me $2000."

    You arent a big corporation with deep pockets and expensive lawyers, and you havent bought or bribed the right congressmen and judges, thats why.

    They can get away with crap like this, but if its the average person, then suddenly "the law" matters a whole lot more, and correct and proper interpretation of the law suddenly matters.

     

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  16.  
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    Anonymous Coward, May 28th, 2010 @ 8:59am

    A very good summary of the issues involved can be found on Mr. Ben Sheffner's site copyrightsandcampaigns.

    The law is clear that the innocent infringer defense is taken off the table if a copyright holder has met the requirements associated with "marking" such a notice, and in this case if fairly appears that such requirements as specified in the applicable statute were met. What the defendant is trying to do here is have a court "judicially amend" an otherwise clear statute to craft an exception to digital files.

    I must agree with Mr. Masnick's observation that this case has at best an almost zero chance of being heard by the Supreme Court since as yet there is not a conflict between two or more of our federal appellate courts. Even so, and as noted by Mr. Sheffner, it does raise some interesting questions because by the very nature of P2P only digital content is involved, whereas the statute was crafted at a time when physical media was the predominant means of distributing musical content.

    Quite frankly, I was disappointed to learn that the plaintiff's counsel is Mr. Camara, with apparent support from Mr. Nesson. Given their track record to date I do have to wonder if either of them are in fact the most competent counsel for presenting such matters to bodies such as the appellate courts and Supreme Court. In the context of this case where a statute is clear on its face, arguments that nip at the margins of the statute face a significant uphill battle in trying to convince what are conservative judicial bodies to declare that such statutes are of constitutional proportions.

    No matter what is the likely outcome, I expect that the question of how to treat notices in association with digital files will eventually be presented to Congress for clarification of the relevant statute.

     

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  17.  
    identicon
    Anonymous Coward, May 28th, 2010 @ 9:24am

    "If I had to guess, I'd say the Supreme Court won't take the case, even though it is an important issue.'

    No, what good would taking the case do big businesses? The supreme court is too busy taking cases that allow big businesses to spend whatever they want on political ad contributions, these are more important cases. Hence I plan to never vote republican again (and I never voted democrat either and never plan to).

     

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  18.  
    identicon
    Anonymous Coward, May 28th, 2010 @ 9:27am

    Re: Re: Burger King

    What's the difference?

     

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  19.  
    icon
    Bubba Gump (profile), May 28th, 2010 @ 9:27am

    Re: I have a new theory called Burger King

    You're all being too harsh.
    I think Nameless has a valid point.

    There are more than 550,000 lawyers in the US. Just imagine how much easier it would be for Burger King to find employees if all those lawyers were out of work.

     

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  20.  
    icon
    The Groove Tiger (profile), May 28th, 2010 @ 10:46am

    Re: Re: Re: Burger King

    The former costs a lot of money, the latter saves a lot!

     

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  21.  
    icon
    Technopolitical (profile), May 28th, 2010 @ 10:50am

    Re: I withold comment till the court rules.

    Points of info:

    If I come to your house to sell cookies for my high school debate team:

    1] if you got a sign up , " no trespassing", I am not allowed to cross your property line. Period. And can be arrested if I do.

    2] If you have no sign , I must leave immediately from your property upon being asked , buy owner or resident of property.

    3] If while walking to you door,, I knock over a flower pot , with your prized orchid:
    A} no sign that stated do not trespass : I am guilty for damages to the flower pot only , but not trespassing.

    B} If the sign read " NO TRESPASSING" , and you knock over my flower pot with my prized orchid:
    Not only do you owe me for a new flower pot and orchid , but you could be prosecuted and convicted of CRIMINAL TRESPASS, (according to NY state Law, other states may be different , call your local DA.).

     

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  22.  
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    Technopolitical (profile), May 28th, 2010 @ 10:57am

    Re: Re: I withold comment till the court rules.

    forgot to add:
    Lack of knowledge of the law , does not excuse crime.

    Infringement , or Downloading , even for innocent purpose, the court will rule , most likely,, is wrong and illegal.

    Might be 9-0 , or 7-2 at the best , with Scolia and Roberts doing something strange

     

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  23.  
    icon
    Karl (profile), May 28th, 2010 @ 11:47am

    Re: Burger King Theory? Off your meds today?

    Maybe he unknowingly took some of that counterfeit medication manufactured by terrorists.

     

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  24.  
    identicon
    Anonymous Coward, May 28th, 2010 @ 12:02pm

    Re: Re: Re: I withold comment till the court rules.

    You should listen to your own subject line more often.

     

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  25.  
    icon
    Technopolitical (profile), May 28th, 2010 @ 12:41pm

    Re: Re: Re: Re: I withold comment till the court rules.

    i know but could not resist,, I have an addiction problem.

    Posting Boards Anonymous. Meets one a month.

     

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  26.  
    identicon
    Anonymous Coward, May 28th, 2010 @ 2:49pm

    Re: Re: I have a new theory called Burger King

    "There are more than 550,000 lawyers in the US."

    No wonder why this country is so screwed up!

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    Mike Masnick (profile), May 28th, 2010 @ 4:07pm

    Re:

    The law is clear that the innocent infringer defense is taken off the table if a copyright holder has met the requirements associated with "marking" such a notice, and in this case if fairly appears that such requirements as specified in the applicable statute were met

    Actually, that's not clear at all, which is why the lower court found that the copyright holder had NOT met the requirements. This is very much an open question.

    What the defendant is trying to do here is have a court "judicially amend" an otherwise clear statute to craft an exception to digital files.

    I believe you are misrepresenting the position of the girl and her lawyers because you disagree with it.

    I must agree with Mr. Masnick's observation that this case has at best an almost zero chance of being heard by the Supreme Court since as yet there is not a conflict between two or more of our federal appellate courts. Even so, and as noted by Mr. Sheffner, it does raise some interesting questions because by the very nature of P2P only digital content is involved, whereas the statute was crafted at a time when physical media was the predominant means of distributing musical content.

    I read Sheffner's analysis, and I believe he is mistaken. He argued that if we accept Harper's view on this, that it would mean all P2P infringing could be considered innocent infringement, because there would be no marking. But I don't believe that's true at all. It just means that the copyright holder would have to show additional evidence that the alleged infringer knew it was against the law. That does not seem like a particularly hard burden in most cases.

    In the context of this case where a statute is clear on its face, arguments that nip at the margins of the statute face a significant uphill battle in trying to convince what are conservative judicial bodies to declare that such statutes are of constitutional proportions.

    Again, the statute is not as clear as you make it out to be.

     

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  28.  
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    Technopolitical (profile), May 28th, 2010 @ 5:03pm

    Re: Re:

    Nice , that explained it well . Really.

    Of course you will follow-up on the story for us Mike. That is why I come here -- for years.

    I think this is a VERY interesting case , and whether or not the SCOTUS chooses to hear is interesting,,

    AND if they choose to hear it even more interesting.

    Please keep us posted

     

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  29.  
    identicon
    Anonymous Coward, May 28th, 2010 @ 6:07pm

    Re: Re:

    You mention the decision by the district court, but it is important to keep in mind that the reason discretionary review by the Supreme Court is being sought by the defendant is because the 5th Circuit overruled the district court and reversed its holding pertaining to innocent infringement.

    That said, the case is nevertheless interesting because of the "twist" it presents concerning copyright notices.

     

    reply to this | link to this | view in thread ]


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