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

from the whooops dept

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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Comments on “Did The RIAA Just Destroy Its Own Argument Concerning Innocent Infringement?”

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44 Comments
Hulser (profile) says:

Re: 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.”

average_joe says:

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?

Anonymous Coward says:

Re: 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.

Free Capitalist (profile) says:

Re: 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.

average_joe says:

Re: 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.

Free Capitalist (profile) says:

Re: 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.

JEDIDIAH says:

Re: Re: Re:2 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.

Anonymous Coward says:

Re: 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.

Hulser (profile) says:

Re: 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.

average_joe says:

Re: 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).

Hulser (profile) says:

Re: 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.

average_joe says:

Re: Re: Re:2 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.

Anonymous Coward says:

Re: Re: Re:3 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?

Niall (profile) says:

Re: Re: Re:4 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’.”

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

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)

Anonymous Coward says:

“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.

Anonymous Coward says:

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.

Anonymous Coward says:

Re: 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?

average_joe says:

Re: 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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