Saturday, August 09, 2008

Innocent infringement defense may reduce damages to $200 per song file in Maverick v. Harper

In Maverick v. Harper, a San Antonio, Texas, case of which we were unaware until yesterday, the RIAA has been pursuing a college age defendant who admitted to having committed copyright infringement using the Kazaa program when she was 16 years old.

Although admitting copyright infringement, she asserted an innocent infringement defense under 17 USC 504(c)(2), which could reduce the statutory damages to $200 per infringement.

The RIAA argued that defendant could not qualify for 'innocent infringer' status, since CD's of the songs sold in stores have copyright notices.

The Court disagreed, and denied the RIAA's motion for summary judgment unless the RIAA agrees to accept $200 per infringement:

Plaintiffs request the statutory minimum damages of $750 per work rather than a calculation of actual damages. Defendant contends that due to her age—sixteen years old at the time of the infringement—and technological experience, she did not intentionally violate Plaintiffs’ copyrights and should therefore be considered at most an innocent infringer.

The damages provision of the Copyright Act provides that a plaintiff may elect to seek
minimum damages of $750 per work. 17 U.S.C. § 504(c)(1). However, it also provides that “where the 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.” 17 U.S.C. § 504(c)(2). The defendant has the burden to prove the lack of intent necessary for innocent infringement. Id.

As evidence of her “innocent” infringement, Defendant presents a signed affidavit stating that before the lawsuit, she “had no knowledge or understanding of file trading, online distribution networks or copyright infringement.” In addition, Defendant stated that “Kazaa and similar products did not inform me that the materials available through their service were stolen or abused copyrighted material and I had no way of learning this information prior to this lawsuit.” (Id., at 13). Plaintiffs contend that by complying with 17 U.S.C. § 402 and placing notices on each the containers and on the surface of the compact discs of the Recordings, they have provided notice such that Defendant could have learned that the Recordings were copyrighted. This argument is not completely satisfactory. In this case, there were no compact discs with warnings.

The Copyright Act provides that “[I]f a notice of copyright . . . appears on the published phonorecord . . . to which a defendant had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement” unless the infringement was believed to be fair use. 17 U.S.C. § 402(d). Although the Fifth Circuit has not addressed this issue directly, the Seventh Circuit has found that an innocent infringer defense did not apply in a case where the defendant “readily could have learned, had she inquired, that the music was under copyright.” BMG Music v. Gonzales, 430 F.3d 888, 892 (7th Cir. 2005). Defendant, relying on Electra Entertainment Group v. McDowell, a case involving a thirteen-year-old girl, argues that her age and knowledge of technology alone should be sufficient to introduce a genuine issue of material fact as to innocent infringement. The McDowell Court held that a genuine issue of material fact was present as to the defendant’s access to the copyright notices. See Electra Entertainment Group Inc. v. McDowell, No. 4:06-CV-115 (CDL), 2007 WL 3286622, at *2 n.2 (M.D. Ga. Nov. 6, 2007).

Although proper notice was provided on the cover of each of the Recordings, a question
remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting. Defendant admitted that she owned compact discs. However, both in her affidavit and in her deposition, Defendant claimed that she believed using KaZaA and similar products to be akin to listening to radio over the internet and did not know that the Recordings were being either downloaded or distributed. She further claimed that prior to this lawsuit, she did not have any understanding of copyright infringement.

At the summary judgment stage, all factual disputes must be construed in the light most favorable to the non-moving party—in this case, Defendant. Anderson, 477 U.S. at 255. Defendant has the burden of proving by a preponderance of the evidence that her actions constituted innocent infringement. 17 U.S.C. § 502(c)(2). Plaintiffs have not introduced any evidence to contradict that Defendant did not have an understanding of the nature of file-sharing programs and copyright sophisticated enough to have reason to know that her actions infringed Plaintiffs’ copyrights. Therefore, the Court finds that a fact issue exists as to whether Defendant was an innocent infringer.

August 7, 2008, Decision denying summary judgment unless RIAA stipulates to $200 per infringement damages

[Ed. note. Readers may recall that I criticized the BMG v. Gonzalez case for its irrational holding on the copyright notice issue. It is refreshing to see the more rational approach taken here. -R.B.]

Commentary & discussion:
Ars Technica

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player


Anonymous said...

How many individual songs did she allegedly download/share?

Alter_Fritz said...

Ah, I guess the content of the order does also clearly gives evidence about the GREED of Plaintiffs.
First they started with 6 songs
(the typical pay us $3000 it is cheaper then trying to defend yourself) "offer".

When defendant refuse/or is unable to cough up that sum in one nice
"No courts no judges, no due process, no costs for our labels pay with your credit card at our convenient automated payment-site" that the lawyer gang of HRO initially signed responsible for, while the page now officially claims to be Copyright © 2007 Recording Industry Association of America, Inc. Version
sum, then they do file charges.

And to punish a defendant for the guts to defend itself those "well-known and respected record companies" increase the number of recordings they claim damages for significantly!

In this case this modus operandi of those vexatious litigants and plaintiffs collectively refered by me as "Evil4" is very well documented in that order of Judge Xavier Rodriguez

I'm not a lawyer, but for me such repeatedly shown behaviour by Evil4 does indeed smell like classic extortion and "moneytised terrorism" that they engage in.

While it is another topic how america treats humans that it label "enemy combattants and alledged terrorists", why does the DOJ not handle those "Record Label extorting terrorists" and the lawyers from companies like HRO that obviously significantly had taken part in that sheme, at least the same way?

Lior said...

I think the most troubling aspect of this ruling is on page 10:

"The fact that the Recordings were available for download is sufficient to violate Plaintiffs’ exclusive rights of reproduction and distribution. It is not necessary to prove that all of the Recordings were actually downloaded; Plaintiffs need only prove that the Recordings were available for download due to Defendant’s actions."

Defendant argued that she couldn't be found liable for making available files MediaSentry didn't actually download. It seems she didn't argue that MediaSentry's downloads also could not establish infringement. In any case the court rules that "making available" is by itself copyright infringement.

Anonymous said...

The Judge vs the RIAA - score 1-1

The RIAA got through with the making available argument, "Plaintiffs need only prove that the Recordings were available for download due to Defendant’s actions."

But later the judge hit back with a correction to the Gonzales judgement "This argument is not completely satisfactory. In this case, there were no compact discs with warnings."

Will the RIAA take the $7400 prize on offer, or go for more?

Alter_Fritz said...

anonymous asked how many

Well they started with 6 (six)
first wrongly accused party(the i guess dad) did not roll over so plaintiffs in their bad faith vexatious litigation strategy added 17 (seventeen) too the first six.

The defendant still was not willing to pay them $750 so they again added some more: 16 (sixteen) to be precise.

Totalling 39 (thirtynine) recordings times $200 equals $7800 (seventhousandandeighthundred).

So defendant is now allegedly slightly worst off then she could be if her dad had accepted the extortion against him since plaintiffs are not interested in justice because they don't ask questions who enters the case ID and provides CC card data for them to sack in the money.

But as Lior points out some important part, the defendant might want to think about contesting that order. But that depends what events are established as facts yet, If she can get much more worse off moneywise spoken if she does contest the order.
Maybe these "we make it worse with every step of resistance against our terror"-plaintiffs will add all the over 500 songs they mentioned initially.
You never know what sociopath will do the next moment!

Anonymous said...

Consider the arguments:

The (hypothetical) Defendant believed it was fair use because she didn't realize that songs were being shared.

The H.D. believed that there was no possible violation of any law because there was absolutely no financial gain involved either in acquiring or sharing the music.

There were no copyrights easily visible on any of the music files involved.

Any copyright notices seen did not identify the true copyright holder.

A copyright notice alone does not tell any innocent infringer anything about the rights protected by copyright, nor even where to find out such information.

Even in the innocent infringer was led to the text of the applicable Copyright Act convering the song(s) in question, how can they be expected to understand it. These court cases show beyond any doubt that judges and lawyers themselves don't even agree on the meaning of the Copyright Act.

{The Common Man Speaking}

Anonymous said...

To the question above: Can the RIAA claim $200 damages x 500 songs it alleges were distributed through merely making available on KaZaA? I would have to suggest that they can't claim damages against any song whose copyright isn't held by one of the named Plaintiffs in this suit.

Furthermore, to claim the damages against any particular song they need more than a filename - and even a hash, since KaZaA hashes are easily forged due to a defect in the method of their creation. The RIAA needs a copy of the song to identify it as the actual copyrighted recording, meaning they would have to get a copy of every song in the shared file that they wished to claim damages against. They likely haven't done that unless they now have an image of the hard drive with all these songs still on it, and then they still have to get out the copyright notices and prove that the recordings are the same song that was copyrighted, and that copyrights are owned by the Plaintiffs of record.

Ray's mileage may vary on this.

{The Common Man Speaking}

Anonymous said...

What's the legal basis for $750 or $200 per song, when the songs cost about $1 on iTunes, etc, and most CDs are $15?

thanks! dave

Alter_Fritz said...

If you mean "legal" as in what paragraph, that one is easy: §504

If you meant legal in a sense of "just", then that's a good question.
the values were codified into law initially when the these days small time "petty crime" infringement by acne riddled teenagers with their homecomputers was not an issue.
Otherwise everybody in his right mind would have said that congres gone crazy that they allow for such high "damages" for the "stealing" of a pack of chewing gum which is about the same value as evil4 "product".

Anonymous said...

Question about the ever increasing numbers.

Ray, how can the RIAA keep increasing the number of violations? Is there no legal requirement to make up your mind about what you pursue people for?

It is clear that the RIAA uses this ability to engage in what is hard to describe other than use of the legal system for blackmail..

Anonymous said...

Ray said "the exhibit A list of songs, times $750, plus $450 in court songs [sic but funny]."

I was wondering how this ridiculous situation came about and footnote 5 of the order gave me a clue. (All IMHO.)

Back when these laws were written, it was expensive to copy a book or vinyl record into the same format. The setup costs meant that unauthorized copying for profit involved making say at least 500 copies of the same work. The statutory fine of $750 or more per work, not per copy, would be appropriate.

Now however, people acting in a way not contemplated by Congress, make one copy of each of 500 works. To scale, a $750 fine per 500 songs would be more appropriate maybe.

A change like this in the law might force the record companies and movie studios to modernize their business practices, long overdue, and stop these stupid law suits.


raybeckerman said...

Dear Peter,

Matthew Oppenheim, who controls the process, is essentially an extortionist. His machine has many similarities to organized crime.

1. He wants a defendant to pay an extortionate settlement.

2. His second preference is for the defendant to default. If the defendant defaults, then the lawyers go for a default judgment for the exhibit A list of songs, times $750, plus $450 in court costs.

3. If the defendant has the temerity to go to a lawyer, or to insist that he or she is innocent of copyright infringement, or in any other way challenge Mr. Oppenheim's machine, he ups the ante: (a) he may add on songs to the exhibit A list and/or (b) he may seek more than $750 per song file in statutory damages.

4. If after challenging Mr. Oppenheim's machine, the defendant thinks better of it, changes his or her mind, and seeks to "settle", he or she will find the ante has been raised significantly. I.e. Mr. Oppenheim now wants his pound of flesh, his retribution for having dared to challenge the machine.

It is a cruel and brutal process.

Mr. Oppenheim is not a nice man.

raybeckerman said...

Corrected my previous post. Thanks for bringing it to my attention, A_F and peter.

raybeckerman said...

The decision denying summary judgment reveals that:

-they were initially suing for 6 songs

-after she defended herself, they raised the ante to 38 songs, to punish her for fighting back.