Friday, October 17, 2008

RIAA agrees to accept $200, instead of $750+, per recording in "innocent infringement" case, Maverick Recording v. Harper in San Antonio, TX

We have just learned that:

1. In in the San Antonio, Texas, "innocent infringement" case, based on alleged infringement by a 16 year old, Maverick Recording v. Harper, in which the Judge denied the RIAA's summary judgment motion due to factual questions over the "innocent infringement" issue, and has scheduled a trial to commence on November 17th, both sides had moved for reconsideration, and both motions were denied, prior to the Court's scheduling of a trial date.

2. Subsequently, instead of going to trial, the RIAA agreed to accept the $200-per-infringement remedy.

September 16, 2008, Decision and Order denying reconsideration motions
RIAA's motion for entry of judgment for $200 per infringement

Commentary & discussion:

punto informatico

Keywords: lawyer 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...

$200 per song is still insane considering any actual losses. It can only be said to be less insane compared to $750 thru $150,000 - but it's still insane.


Anonymous said...

Is now the time to bring up the issue that even $200 per track allegedly infringed is still way too Constitutionally high compared to any actual losses (actual losses range from zero through approximately 79 cents per track)? The punitive aspects of electing statutory damages in cases like these over actual losses seems yet to be decided at the higher judicial levels. All this, no less, from an industry who gives their product away for free over the radio.

{The Common Man Speaking}

Anonymous said...


Are you or your readers aware of any case which interpreted 504(c)(2), below, to mean not less than $200 per song copied by an innocent infringer? In my view it means the court can award not less than $200 for ALL "acts," and so plaintiffs' motion for entry of judgment of $200 per song should be opposed and denied and damages limited to $200 total, or higher in the court's discretion.

If there is an opinion which convincingly explains why the statute means per copy or per song, I'd stand corrected.

To me the language of the statute says the court can reduce the entire award, for all infringements, to as low as $200 if the infringer is found to be unaware and have no reason to believe he/she infringed.

(c) Statutory Damages. —
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.

Anonymous said...

What would possibly be a better solution might be to push this case forward in various aspects, because the RIAA settling for $200 a song is effectively telling the world that their typical demand of $750 to $150,000 per song is ridiculous and unreasonable, especially when it's made of a person who had no idea "infringement" occurred. At the very least it sets a standard that can be quoted in all other cases: while the RIAA can attempt to "prove infringement" they can't prove the "infringement" was wilful. Eventually the $750 to $150,000 could be a thing of the past.

Anonymous said...

Fan of this Blog, you make an excellent point, especially as the RIAA has long argued that the infringement at issue is "continuous and ongoing". That would lead one towards the reasonable assumption that there is a single incident of infringement and hence a single fine associated with it. Also, in other cases a whole album is treated as a single case of infringement, although I've heard of attempts to make each track a separate case (does each track have an individual copyright notice, or is there just one per album?) in order to multiply the fines by 10 or more. Fascinating that this plain language of the statute hasn't been brought to the forefront before. This multiplication of high statutory damage awards times the number of tracks at issue has long been one of the most outrageous aspects of these cases which has allowed the RIAA to play the part of the nice guy because they are only suing for $750.00 / track when it could have been much more.

DTS, what is ridiculous and unreasonable here is the RIAA insisting because there is a 4-point type copyright notice on a CD in a store that a teenager running KaZaA at home could never be an innocent infringer. Allow me to digress a moment on this point.

You have A Song as an MP3 music file that you got somewhere (download, friend, stole from your older brother's iPod, whatever) that you really like. There is no printed copyright on that file because a computer file isn't something you can hold in your hand and look at. Only when it's recorded on physical media (floppy disc, CD-R, DVD+RW, printed out in binary on paper, etc.) is there any physical expression of this file. Even if you look in the file at the meta tags (ID3v1, ID3v2, filename itself) there is no indication of a copyright, and even if there was what makes that notice valid? Anybody could have typed anything into these fields.

This all leads to the overriding question: How does the average person even know if a song has a valid copyright, who owns that copyright, or when that copyright expires? The record companies aren't making lists and identification methods for their recordings possible, perhaps because if they did and yours wasn't on their list or didn't identify properly you'd be home free as having done your due diligence.

The RIAA's answer is that you automatically know because the legal notice is on the album. That's utter garbage! The truth is that the RIAA provides no way to verify copyright. There is no single Internet database where you can look up a song, provided you even have the correct artist and performance. Furthermore the RIAA doesn't necessarily even own the copyright to every performance. A recording, bootleg or otherwise, of a live show may well be covered by copyright, but not by the recording company who released the CD of this band's songs. A live concert is a different expression of that music. While I have yet to see the RIAA show up with anything more than a paper copyright notice at best (as compared to, Mr. Judge, here's our printed copyright notice and here's a reference recording of the song the notice refers to and here's certified proof that the notice and the reference recording are properly related to each other), they maintain that a flimsy notice alone is more than sufficient that this copyright notice refers to this song file.

What I see is: The RIAA is pushing the notion that ALL MUSIC is copyrighted by their members exclusively and everybody from the day they're born should know that. And even more basically: ALL MUSIC is owned and you have to pay for it every time. This simply isn't true. I'm waiting for a court to really demand that the RIAA proves the music file they're suing over is actually the song they own. A strict judge could make proving that quite difficult.

Until the consumer has a single, straight-forward way to verify the copyright status of this particular recording the recording industry should not be allowed to sue for willful infringement in any of these cases where they can't prove that the person ripped the song themselves from the original CD (not a burned CR-R that was made without printed notices on it) that was stored in the original case with the original liner notes. After all, this is the same industry that claims any peer-to-peer service could easily filter out their copyrighted material using technology already available. If this technology is already available, then why not have a site where you can submit any music file (MP3, ACC, OGG, FLAC, WAV, WMP, et al.) and it will come back with the artist, song title, album(s), and a list of all legal sources to purchase that song? (Hint: I already know the answer to this question.) Until they do that as their part, they shouldn't be allowed to see the insides of another courtroom!


Anonymous said...

At least in the PDF reader I use, pages three and five of this document appear blank.

Anonymous said...

I agree with others, the plain reading of the law seems to say $200, NOT $200 per track.

Of course since the Record Companies briefed $200/track, I doubt they would like the Judge entering Judgment for $200 total.

Sounds like the Defendant admitted the downloads, so the Court is only looking at the damage amount. I say $200 is more than enough, let them live with that.


Anonymous said...

Not sure if anyone has noticed, but the defendant in this case has decided to fight the judgement completely:

XxX, that's certainly something I've never thought about. It'll be something to include when I inform others over RIvTP. Thanks muchly.

Anonymous said...

David Kravets of Wired blog has some commentary on this case, and links to the pfds of the opposition and reply to the RIAAs motion.