Supreme Court Apparently Interested In 'Innocent Infringer' RIAA Case

from the this-could-get-interesting dept

We've been covering the Whitney Harper "innocent infringement" case for a while now. Harper, as a teenager, was sued in one of the tens of thousands of RIAA lawsuits, for sharing some music via Limewire. US copyright law has a provision for "innocent infringement," where it lets you lower the statutory award amounts from a minimum of $750 down to $200. Harper made the case that she was unaware that sharing music via Limewire was unauthorized, as it seemed just like an online radio to her. While the district court sided with Harper in saying that it was innocent infringement, the record labels appealed and the appeals court reversed, claiming that because the CD cases of the music in question had proper copyright notices, Harper was properly notified... even though she never saw those cases.

Harper appealed to the Supreme Court earlier this year. At the time, I noted that while this is an important issue, I doubted the Supreme Court would hear the case. However, indicating a fair bit of interest, the Court has asked the RIAA to respond to Harper's appeal -- which generally indicates serious interest in potentially taking the case. According to Wired, the court normally agrees to hear less than 1% of appeals, but if it requests more info on a petition, then it tends to take 34% of those cases. Still long odds, but a lot more likely...


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    weneedhelp (profile), Sep 22nd, 2010 @ 8:35am

    CD cases of the music in question had proper copyright notices

    Yeah because we all read every word of those. On the rare occasion where I do buy a cd, I rip open the package, rip it, then the cd goes into a box never to be seen again.

     

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      Dark Helmet (profile), Sep 22nd, 2010 @ 8:41am

      Re: CD cases of the music in question had proper copyright notices

      More importantly, how many people moving forward, particularly those that are downloading music from the interwebz, will even know what a CD is?

       

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    TDR, Sep 22nd, 2010 @ 8:53am

    About the same number that know what a backup is, I'd guess.

     

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    average_joe (profile), Sep 22nd, 2010 @ 8:54am

    I wouldn't get too excited about this case. My prediction is that if the Court does take it they will ultimately affirm the Fifth Circuit, thereby taking away the innocent infringer defense from online infringers nationwide.

    Why Harper appealed the District Court decision I'll never understand. The District Court put her on the hook for $200 per track, and on appeal the Fifth Circuit bumped it up to $750 per track. What did she think she was going to get on appeal?

    Now she's going to the Supreme Court, or at least she's trying to go there. Is she trying to ruin it for everyone else? Seems like it to me.

    Here's something else I don't get. Harper's attorney is wunderkind Kiwi Camara. His theory on why the Court should take the case is because he claims there is a split among the circuit courts.

    He claims that this case in the Fifth Circuit and another one in the Seventh Circuit are at odds with a case in the Second Circuit which he cites in his petition as D.C. Comics Inc. v. Mini Gift Shop, 913 F.2d 29 (2d Cir. 1990). Well, his cite is wrong and it's really 912 F.2d 29, but that's not the problem.

    He states: "On the other hand, the Second Circuit in D.C. Comics held that, where “there were no copyright notices on the infringing good and * * * a layman would not be able to distinguish between licensed and unlicensed goods,” a “defendants’ infringement was innocent.”

    But in that case, the defendants had their hands on a physical copy of the work. That's not the case here. Here, the work being copied is a digital work on a file-sharing network. I don't think the two are comparable, and Camara's claim that there's a circuit split is just wrong.

    Camara is the guy who got Thomas-Rasset on the hook for 1.92 million dollars in her retrial. It wouldn't surprise me if he botched this one as well.

     

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      Berenerd (profile), Sep 22nd, 2010 @ 9:30am

      Re:

      reread please...Harper didn't appeal after getting the ruling of 200/song, the record labels did.

      "Harper made the case that she was unaware that sharing music via Limewire was unauthorized, as it seemed just like an online radio to her. While the district court sided with Harper in saying that it was innocent infringement, the record labels appealed and the appeals court reversed, "

       

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        average_joe (profile), Sep 22nd, 2010 @ 9:39am

        Re: Re:

        Not exactly. The plaintiffs were happy with the $200 per track damages from the District Court. They told Harper that if she appealed the judgment, then they would cross-appeal for an increase in damages. Harper appealed (I have no idea why, even after reading her brief), and true to their word, the plaintiffs cross-appealed. Had Harper just left it alone, the damages would not have been increased on appeal.

         

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          Ryan Diederich, Sep 22nd, 2010 @ 9:48am

          Dr. Martin Luther King Jr.

          ...said that to sit down and take it is wrong, and that silent and nonviolent protest is the way.

          You sir, are saying that we should just accept lesser fines from the RIAA, rather than continue to fight them?

          It wont be long now, after hundreds and hundreds of appealed cases and innocent verdicts, the judicial system will realize that these laws are innefficient and not compatible with the modern world.

          I just hope that that is this one.

           

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            average_joe (profile), Sep 22nd, 2010 @ 10:02am

            Re: Dr. Martin Luther King Jr.

            It's not always a smart move to appeal a case, Dr. King notwithstanding.

             

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              Anonymous Coward, Sep 22nd, 2010 @ 10:06am

              Re: Re: Dr. Martin Luther King Jr.

              Whatever prevents children from listening to music.

               

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              Jay (profile), Sep 22nd, 2010 @ 10:07am

              Re: Re: Dr. Martin Luther King Jr.

              Again, the labels appealed. As they did for Tenenbaum and Thomas Raisset.

               

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                average_joe (profile), Sep 22nd, 2010 @ 10:31am

                Re: Re: Re: Dr. Martin Luther King Jr.

                Again, the plaintiffs here only appealed after Harper appealed first.

                 

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                  Jay (profile), Sep 22nd, 2010 @ 10:43am

                  Re: Re: Re: Re: Dr. Martin Luther King Jr.

                  And yet, you fail to understand that the $2000+ that came with innocent infringement is still far excessive compared to:

                  1) the total amount being more than 10x the amount of all of the songs
                  2) RIAA settlement based
                  3) nothing to do with actual harm in the market place.

                   

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                    average_joe (profile), Sep 22nd, 2010 @ 11:00am

                    Re: Re: Re: Re: Re: Dr. Martin Luther King Jr.

                    Your number is a bit off.

                    Here's what happened: Plaintiffs offered to settle for $4,000. Harper refused. On summary judgment, the District Court awarded plaintiffs $7,400 ($200 per infringement). Unhappy with that, Harper appealed, and then the plaintiffs cross-appealed. The Fifth Circuit awarded plaintiffs $27,750 ($750 per infringement).

                    Harper just kept making things worse for herself.

                    I agree with you that the numbers are crazy, but as a matter of law, I don't think Harper should have qualified for the innocent infringer defense in the first place. She should have considered herself lucky that the District Court judge bought it and not appealed. Heck, she should have just settled for four grand and called it a day.

                     

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                      Anonymous Coward, Sep 22nd, 2010 @ 11:08am

                      Re: Re: Re: Re: Re: Re: Dr. Martin Luther King Jr.

                      And justice is served!

                       

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                      Jay (profile), Sep 23rd, 2010 @ 6:40am

                      Re: Re: Re: Re: Re: Re: Dr. Martin Luther King Jr.

                      I would have done the exact same thing. Let's look at the songs:

                      37 songs x $1 per song = 37$

                      Filesharing the songs inflates the price to $7400 when the price on the songs, in the market place, is much less. So the law needs to be changed considerably.

                      Maybe you have $4000 lying around, but I sure as hell would try to get this knocked down to something reasonable such as $50 bucks and the RIAA pays their own fees.

                       

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      Mike Masnick (profile), Sep 22nd, 2010 @ 10:15am

      Re:

      I wouldn't get too excited about this case. My prediction is that if the Court does take it they will ultimately affirm the Fifth Circuit, thereby taking away the innocent infringer defense from online infringers nationwide.

      It's hard to take away something that people never had.

       

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        average_joe (profile), Sep 22nd, 2010 @ 10:33am

        Re: Re:

        Well, Harper did have an innocent infringer defense until she was silly and appealed it. Sometimes it's best to leave well enough alone.

        If the Court takes the case and affirms, then there's no more innocent infringer defense for anyone. On the other hand, maybe they will reverse. Stranger things have happened.

         

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          Anonymous Coward, Sep 22nd, 2010 @ 8:56pm

          Re: Re: Re:

          Seriously, are you retarded or is your stupidity intentional. Harper did not appeal, it was the record labels that appealed.

           

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            average_joe (profile), Sep 22nd, 2010 @ 9:12pm

            Re: Re: Re: Re:

            What is your problem? You clearly have no idea what you're talking about. Are you just making this stuff up?

            Look for yourself: http://www.ca5.uscourts.gov/opinions/pub/08/08-51194-CV0.wpd.pdf

            Harper is listed as the appellant/cross-appellee. Appellant means she appealed first.

            Are you an idiot? Apparently so.

            Right there on page one, the court says: "Harper appealed and Plaintiffs cross-appealed."

            What part don't you understand? Idiot.

             

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              Anonymous Coward, Sep 23rd, 2010 @ 6:39am

              Re: Re: Re: Re: Re:

              It is instructive to read, in order, the original DC opinion, a modified opinion by the DC, and then the 5th Circuit opinion.

              It explains what the plaintiff agreed to do concerning the innocent infringer defense and the $200/infringement award, the plaintiff's reservation to cross-appeal (and why) in the even the defendant decided to appeal the innocent infringer defense, the plaintiff's attempt to insert an constitutionality claim at the DC level and why it was rejected by the 5th Circuit, the cursory nature of the defendant;s cert petition, and, with a bit of digging using Google to search "whitney harper supreme court amicus" to find a brief in support of the defendant's petition filed by Mr. Nesson, various law professors, and Ray Beckerman that reads almost in its entirety as an irrelevant trip down history lane dating back centuries.

              Importantly, a DC opinion carries no precedential weight, whereas an appellate court opinion does serve as precedent within the Fifth Circuit.

              If the appellant, the cert petitioner, was able by some stroke of incredible "luck" able to have cert granted, the limited nature of the issue that is the subject of the cert petition would at the very best, in the event that the Fifth Circuit was overturned, result in the case being returned to the Fifth Circuit for either another crack at its decision or for remand back to the DC.

              In any event, if the case was remanded and the defendant able to successfully assert and prove the defense, the very best that could happen is that the court would issue an order that would be exactly the same as the original DC decision.

              Perhaps defendant's counsel is working some unknown angle, but as noted earlier it seems almost certain that counsel is scrambling to try and have the case returned to the DC so that the alleged unconstitutionality of statutory damages can be pressed forward one more time in the hope that it would be entertained by the court, have an opinion rendered thereon, and then reappealed to the Firth Circuit with the hope that it would either be granted, in which case the label would appeal, or denied, in which case the defendant would appeal via cert in both instances to the Supreme Court.

              In summary, this is not about the defendant being an innocent infringer. It is yet another avenue trying to fling the constitutionality of statutory damages against a wall in the hope that it may stick.

               

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                average_joe (profile), Sep 23rd, 2010 @ 7:41am

                Re: Re: Re: Re: Re: Re:

                Thanks for the info!

                If this gets remanded back to the District Court, what's left for the judge to do? It seems like the only issue on the table is whether it's going to remain $200 per track, or it's going to get bumped up to $750 per track.

                Can Camara bring up the constitutionality issue at this point? I would think that he'd be barred from raising it so late in the game. I don't really know though.

                I read through Nesson's amicus brief a while back. I remember thinking it was entertaining but not compelling. When I've got some spare time I'll read through all the docs again. Spare time is something I don't have much of lately...

                 

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                  Anonymous Coward, Sep 23rd, 2010 @ 8:21am

                  Re: Re: Re: Re: Re: Re: Re:

                  The Fifth Circuit briefly touched upon the constitutionality issue, even going so far as to replicate what was brought up before the district court. The Fifth Circuit held that the district court correctly decided to issue no opinion on the issue given the issue's, at best, purely cursory nature as presented to the district court.

                  Neither Nesson nor Camara and Co.have shown throughout the cases with which they have been associated that they believe the Rules of Civil Procedure are particularly important or relevant. Thus, this is why I mentioned earlier I have not the slightest doubt that Camara and Co. will leave no stone unturned trying to get the issue before the district court if the case is ultimately remanded to it. That is the "Ark of the Covenant" they are seeking, and one who may believe otherwise should really take a look at the proceedings in the Tennenbaum and JRT cases in NY and MN, respectively. This is the issue common to all the cases.

                  Frankly, I am still somewhat in the dark trying to figure out what is the economic motivation that underlies Camara and Co.'s involvement in these cases. They are not a public interest group. They are a firm devoted to class action lawsuits, and I harbor suspicions that they may be working towards a class action suit at some time in the future against the rights holders (the labels, and perhaps even the industry associations). Of course, for this to even occur they need to somehow get the constitutionality issue injected into one or more of the cases, and to ultimately secure a ruling favorable to their position.

                   

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                    average_joe (profile), Sep 23rd, 2010 @ 8:51am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    That's an interesting theory about a future class action in the works. That wouldn't surprise me. I just figured Camara is continuing the journey he started with Nesson. These cases are his pet side project.

                    Tenenbaum and Thomas-Rasset are a crazy couple of cases! What the heck were Nesson and Camara thinking? I'm actually really psyched about the judge in Tenenbaum finding that the statutory damages were unconstitutional. I gotta give Nesson props on that one. I'm anxious to see that one on appeal.

                     

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                      Anonymous Coward, Sep 23rd, 2010 @ 9:44am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Judge Gertner in Tennenbaum used the word "unconsitutional", but then turned around and crafted her own "statutory damages" clause. Unconstitutional has always meant in every case I have ever studied that a clause is void, and not one than can be judicially rewritten to reflect what the judge is of the opinion Congress should have said.

                      Hence, I believe it is fair to say that what she held was that the clause was perhaps unconstitutional as written, but that she saved it from the fate of unconstitutionality by rewriting it.

                      Note to Judge Gertner: If you want to engage in legislating, resign from the bench and run for Congress.

                       

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                        average_joe (profile), Sep 23rd, 2010 @ 10:06am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        I read the Tenenbaum opinion the day it came out, so it's been a while, but as I recall she cited BMW v. Gore. In that case, the Supreme Court held that excessively high punitive damages violated due process. I don't recall what happened on remand though, but I assume the damages were simply lowered. Tenenbaum was about the non-compensatory part of statutory damages which are in effect punitive, so it's not exactly the same, but I just assumed that Gertner lowering the damages award while staying above the statutory minimum was kosher. Perhaps not. I see what you're saying that if the statute was really unconstitutional then it would be absolutely void. Very interesting.

                         

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                          Anonymous Coward, Sep 23rd, 2010 @ 10:36am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          I just reread Judge Gertner's decision and noted my above comment does contain a significant error. Specifically, she did not hold statutory damages unconstitutional, but rather held that the jury award was unconstitutionally excessive (relying upon the Due Process Clause). Hence, she lowered the jury verdict to a number that was at the lower range of the statutory damages clause (about $2250/infringed song), a number that she admitted was somewhat arbitrary...but in her view had at least some basis derived from prior cases in matters other than copyright infringement (e.g., Williams, Gore).

                          Curiously, part of her thought process was based upon some of the current means by which Tennenbaum could legally obtain songs. Unfortunately, this bears no relationship to the timeframe applicable to Tennenbaum's infringing activities. Moreover, it seems as if she limited her holding to just damages associated with "copying", and gave no consideration to damages associated with "distributing".

                          All in all, a strange decision that can only be interpreted to mean that she "punted" the issue to the Court of Appeals, figuring it was best to let it sort things out. It will be interesting, to say the least, how the court will address her notion of "due process" versus that of the plaintiffs and the DOJ.

                           

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                            average_joe (profile), Sep 23rd, 2010 @ 10:47am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            I'm sure Tenenbaum will argue that even Gertner's lowered number is unconstitutionally excessive. That will be a good one to watch for sure.

                             

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                              Jay (profile), Sep 24th, 2010 @ 7:38pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              Are you saying you don't agree?

                              " Moreover, it seems as if she limited her holding to just damages associated with "copying", and gave no consideration to damages associated with "distributing"."

                              It seems that the RIAA has had a rather difficult time in actually proving damages from distribution with 10 years of filesharing and record profits.

                              I believe the key here is the very fact that Tenenbaum, during the trial, at least proved that his own filesharing wasn't hurting them.

                               

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                                Anonymous Coward, Sep 25th, 2010 @ 12:40pm

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                Under copyright law a rights holder is accorded to right to elect to receive either actual or statutory damages. If the latter is elected it is not necessary that the rights holder "prove" damages.

                                BTW, Tennenbaum "proved" nothing. Once he admitted at deposition that he had infringed, the issue from that point forward was limited to how much in the way of damages was the rights holder owed.

                                 

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      ldne, Oct 28th, 2012 @ 7:54pm

      Re:

      Didn't read it did yout? She DIDN'T appeal the $200 bucks a track, the record company sleazels did.

       

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    AJ, Sep 22nd, 2010 @ 9:38am

    What if the AA's win the war? Do they really loose?

    With all the lobbying they do, and taking people to court and such... what if they get everything they want? Doesn't that mean their product is worthless? You can't honestly believe people will be interested in buying a cd they don't really own... or downloading a song from itunes that can be rendered useless on a whim? They are not loosing buisness because of pirates, they are loosing buisness because their product is loosing value... I hope they win it all to be honest with you so we can hurry up and get rid of them....

     

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    Anonymous Coward, Sep 22nd, 2010 @ 10:00am

    She does have a strong argument there.

    If she can show that she couldn't possibly know what was infringement or not she got a good chance.

    To this day, some people don't know that listening to music online from certain places is infringement, they trust the source.

    A license for a CD is different from a license for radio or even to digital stores they all have different types of rules, this is one case where the vagueness of the market can actually help.

     

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    Anonymous Coward, Sep 22nd, 2010 @ 11:02am

    Importantly, the district court did not hold that the defendant was an innocent infringer. What it did hold was that the defendant was entitled to present innocent infringement as a defense that if proven would have reduced damages from the $750 minimum to a $200 minimum.

    Since the plaintiff (a record label, and not the RIAA) was willing to accept the $200 minimum even without innocent infringement having been established, why the defendant chose to file an appeal with the Fifth Circuit makes not a whit of sense.

    If the Supreme Court grants cert and the case is set for argument, all this would do is return the case to the Fifth Circuit, which would likely then return it to the district court. Now being able to assert a defense of innocent infringement, if the defendant is successful in doing so her payment for damages would be reduced to not less than $200 per infringement...precisely where she was when the district court originally decided her case.

    My guess what is happening? Defendant's counsel came into the lawsuit late in the game, the opportunity to argue against the constitutionality of statutory damages was long past, the appeal was taken in the hope that the Fifth Circuit would reverse the district court, the case would eventually be remanded to the district court, and then the attorney would leave no stone unturned trying to get the district court to agree that the constitutionality of statutory damages should be ruled upon.

    This case is most certainly not about the defendant. It is about a group of attorneys using the case as a pretext for arguing the constitutionality of statutory damages.

     

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      average_joe (profile), Sep 22nd, 2010 @ 11:24am

      Re:

      Good call. This is more about Camara and Co. than it is about Harper. I've read a few of Camara's briefs, and there was a significant amount of intellectual dishonesty in all of them, IMO. I'm not impressed.

      If this ever gets back to the Fifth Circuit and there's oral arguments, I'll take a drive downtown and get a good seat. ;)

       

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        Richard (profile), Sep 22nd, 2010 @ 12:21pm

        Re: Re:

        In the early 1990's (according to David Owen then the EU co-chairman of the Conference for the Former Yugoslavia) when Sarajevo was under siege by the Serbs, the Bosnians would set up a mortar in the grounds of a hospital and fire off a few shells - then vacate the area and get the press in, just in time for the inevitable retaliation. In more recent times the Israelis have accused the Palestinians of doing something similar.

        What we have here is the same tactic in a legal context. It won't win the case, it will probably harm the defendant in the short term, but it will make the plaintiffs look bad to everyone who doesn't look too closely (that's almost everyone). In the long term it will change public sympathy and force a change in the law.
        Camara & Co. will then be one of the heroes of the revolution!

         

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          average_joe (profile), Sep 22nd, 2010 @ 12:35pm

          Re: Re: Re:

          And what if the Supreme Court affirms the Fifth Circuit taking away the possibility of an innocent infringer defense for everyone? Will Camara and Co. be heroes then?

           

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            Anonymous Coward, Sep 22nd, 2010 @ 2:04pm

            Re: Re: Re: Re:

            You are assuming she had anything in the first place when it is obvious by now that the law is not fixed, confirmed, clear or whatever, and you are being dishonest here, if it was the other side you would be praising them and saying they have a right to fight for what is theirs but you call others who do the same things idiots.

             

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              average_joe (profile), Sep 22nd, 2010 @ 2:36pm

              Re: Re: Re: Re: Re:

              I'm not sure how I'm being dishonest.

              I agree with the Fifth Circuit that the innocent infringer defense is foreclosed as a matter of law in Harper's case. I think the statute is perfectly clear about that.

              Perhaps the Court will say otherwise. We'll just have to wait and see.

               

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            Anonymous Coward, Sep 22nd, 2010 @ 2:05pm

            Re: Re: Re: Re:

            What if she wins something here.

            If they can go all the way to settle this mess is better to do it.

             

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            Richard (profile), Sep 23rd, 2010 @ 4:03am

            Re: Re: Re: Re:

            And what if the Supreme Court affirms the Fifth Circuit taking away the possibility of an innocent infringer defense for everyone? Will Camara and Co. be heroes then?

            Yes because they are trying to make the law look bad. Taking away that defence would be a public relations disaster for copyright law.

            The more the RIAA win in the courts the more they lose with the public.

            Even they seem to recognise this - as they have tried to back away from the bigger judgements in their favour.

            What they are trying to do is to scare people enough to stop them sharing music but not so much that they. Turn around and react against them - either by forcing a change in the law or by stopping. It's a difficult balancing act - and one which I don't believe is possible.

            You need to take off your legal blinkers and see the bigger picture.

             

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              Richard (profile), Sep 23rd, 2010 @ 4:05am

              Re: Re: Re: Re: Re:

              Sorry - the penultimate paragraph should read:

              What they are trying to do is to scare people enough to stop them sharing music but not so much that they turn around and react against them - either by forcing a change in the law or by stopping buying RIAA music. It's a difficult balancing act - and one which I don't believe is possible.

               

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    Abhinav, Nov 29th, 2010 @ 11:08am

    Copyright law resembles apartheid law

    "This amount reminds me of days when a Black man would be put in jail for sitting on a bench for Whites."

    Hi,
    I read today that the US supreme court will not give a hearing to the case.
    I feel that the laws governing music piracy are breaking some basic principles of justice.

    Making a person pay $750 for each track is outrageous.

    If I steal a burger at MacD, will I be charged the cost of dinner plate at a expensive Manhattan restaurant?
    Lets say MacD, Starbucks and some expensive restaurants have a association against food theft. Will they arrive at a average cost of theft or loss. They can't.

    If I steal a Burger that costs $1, I can be made to pay $1+fine for trouble (to owner and society, not association of restaurants).
    If I download 1 song that cost$1 at apple online music store, I can be made to pay $1+fine for trouble.

    How can it come to $750, because the congress is in the pocket of corporates.
    This amount reminds me of days when a Black man would be put in jail for sitting on a bench for Whites. US copyright law is same as apartheid laws and must be repealed.

     

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