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You are here: Home / Open Threads / Excellent Links / Interesting Case

Interesting Case

by John Cole|  May 27, 20107:53 pm| 77 Comments

This post is in: Excellent Links, Science & Technology

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First I have heard of this:

A case testing the meaning of the so-called “innocent infringer’s” defense to the Copyright Act’s minimum $750-per-music-track fine has landed at the U.S. Supreme Court.

The case the justices were asked to review Wednesday concerns a federal appeals court’s February decision ordering a university student to pay the Recording Industry Association of America $27,750 ($750 a track) for file sharing 37 songs when she was a high school cheerleader. That decision reversed a Texas federal judge who had ordered defendant Whitney Harper to pay $7,400 ($200 per song).

The lower court, without a trial, had granted her the innocent infringer’s exemption to the Copyright Act’s minimum fine, because the teen claimed she didn’t know she was violating copyrights. She said she thought file sharing was akin to internet radio streaming.

The appeals court, however, said she was not eligible for such a defense, even though she was between 14 and 16 years old when the infringing activity occurred on LimeWire. The reason, the court concluded, is that the Copyright Act precludes such a defense if the legitimate CDs of the music in question carry copyright notices.

“Harper cannot rely on her purported legal naivety,” the New Orleans–based appeals court ruled, 3-0.

Does anyone know more about this?

And in general, has the “I didn’t know it was illegal” defense ever worked in any case? I imagine it might be the kind of thing that would cause prosecutors to go for a lesser charge or for the court to apply leniency in sentencing, but has it ever been successfully used as a defense. Sorry if this is common knowledge among lawyers, but I just don’t know.

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77Comments

  1. 1.

    freelancer

    May 27, 2010 at 7:56 pm

    And in general, has the “I didn’t know it was illegal” defense ever worked in any case?

    See Dave Chappelle.

    White Priviledge rocks!

  2. 2.

    Matthew Reid Krell

    May 27, 2010 at 8:01 pm

    As a general matter, it’s not SUPPOSED to work. We’re all charged with a reasonable person’s knowledge of the law, particularly with notice. That said, in jury situations it may well work, since juries are black boxes in the American system.

    My argument would have been that RIAA wasn’t a proper plaintiff, or at least that they aren’t allowed to collect damages personally. I could see them being designated as an agent for artists to collect damages, but unless they are the actual rightsholder, which I don’t think they are, why are they being able to fund themselves through this litigation?

  3. 3.

    Matthew Reid Krell

    May 27, 2010 at 8:01 pm

    As a general matter, it’s not SUPPOSED to work. We’re all charged with a reasonable person’s knowledge of the law, particularly with notice. That said, in jury situations it may well work, since juries are black boxes in the American system.

    My argument would have been that RIAA wasn’t a proper plaintiff, or at least that they aren’t allowed to collect damages personally. I could see them being designated as an agent for artists to collect damages, but unless they are the actual rightsholder, which I don’t think they are, why are they being allowed to fund themselves through this litigation?

  4. 4.

    BombIranForChrist

    May 27, 2010 at 8:04 pm

    I wonder if it works like this:

    Ignorance is not an excuse when determining guilt, but

    It may be a mitigating factor when determining remedy / punishment?

    I don’t know. My wife watches Matlock, though, so I have picked up on a few things.

  5. 5.

    Jon H

    May 27, 2010 at 8:06 pm

    It seems the distinction here is “I didn’t know it was copyrighted”, which might well be the case with something old that lacks copyright information, versus “I didn’t know it was illegal” or “I didn’t know how Limewire works”.

  6. 6.

    Jrod

    May 27, 2010 at 8:07 pm

    No doubt the RIAA won’t waste any time making sure that $200 is given to the poor artists who created those tracks, right?

    Right?

  7. 7.

    Fcb

    May 27, 2010 at 8:10 pm

    Via the gift, etc…

    http://itlaw.wikia.com/wiki/Innocent_infringement

  8. 8.

    Mark S.

    May 27, 2010 at 8:12 pm

    $750 per track? Aren’t most songs like a dollar or two on iTunes? That’s fucking ridiculous.

  9. 9.

    Randy Paul

    May 27, 2010 at 8:13 pm

    @Matthew Reid Krell: could see them being designated as an agent for artists to collect damages, but unless they are the actual rightsholder, which I don’t think they are, why are they being allowed to fund themselves through this litigation?

    Full disclosure: I worked for ASCAP for twenty years and while this is a different right (i.e. master recording rights as opposed to performance rights), ASCAP was never the rights holder. ASCAP members, when joining, agreed to let ASCAP be their attorney-in-interest for suits involving public performance infringements. This caused Bruce Springsteen some embarrassment recently, but they were entirely within their rights.

    The RIAA does not represent the artists, but they represent the record label that has the master recording rights. I would imagine that the RIAA has the same sort of arrangement with its constituents. If you look at the captioning of the lawsuit, there is no mention of the RIAA, but is there mention of record labels and recording companies who are the rights holders. That was the way it was done at ASCAP.

  10. 10.

    Randy Paul

    May 27, 2010 at 8:15 pm

    @Mark S.:

    The statutory range for willful infringement runs from $750 to $150,000 per count. They’re asking for the minimum. She should have used I-Tunes.

  11. 11.

    Irony Abounds

    May 27, 2010 at 8:17 pm

    I haven’t read the case, but it appears as though the minimum fine of $750 per song can be waived under the terms of the statute if the violator was an innocent infringer. In other words, the statute seems to have a built in “I didn’t know it was illegal” feature that, while perhaps not exonerating you completely, does allow for a reduction in the minimum fine that would otherwise apply.

  12. 12.

    Jon

    May 27, 2010 at 8:18 pm

    It’s not a defense. What’s at stake here is the concept of “statutory damages.” In general, when I invade your rights in some manner and you sue me, you’re entitled to collect from me a money award equivalent to the actual damage my acts did to you. So under that principle, if a person illegally copied a CD, the copyright holder seeking damages could only get a money award for the amount of money it had lost. How much was that? maybe the price of the album, maybe nothing — maybe person who received the copy wouldn’t have bought the album in any event. Congress didn’t think that gave copyright holders a powerful enough weapon against infringers, so it came up with the concept of “statutory damages” — for every individual act of infringement, the court can order the infringer to pay the copyright holder $750 to $30,000, regardless of the actual damage the copying had done to the copyright holder. But the statute contains an exception: The court can set the statutory damages as low as $200 where the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright.” That’s the provision at issue here; its most obvious application is to somebody who copied a work reasonably believing, say, that it was really old and in the public domain.

  13. 13.

    Steve V

    May 27, 2010 at 8:19 pm

    The range of damages for “regular” copyright infringement is from $750 to $30,000 per infringement. That’s a really broad range and gives judges lots of discretion in awarding statutory damages. (By holding the girl liable for $750, the judge was already going as low as he could go absent a finding of “innocent” infringement, where the range is $200 to $750 per infringement.) Anyway, I’ve litigate the issue of what’s the difference between an ordinary infringement and an “innocent” one, but it was a long time ago, and I remember thinking it was pretty tough to get into that “innocent” area. There also is some grayness, since people being knocked for only $750 rather than an amount closer to the $30,000 end of the spectrum usually have a good deal of “innocence” they can point to to argue that they shouldn’t be hit too hard. All I remember is that it’s pretty tough to show that you’re an “innocent infringer.”

    By the way, if you think $30,000 is a lot of money, there’s another damages range for “willful” infringement — $30,000 up to $150,000 per infringement. Keep in mind these are statutory damages. Copyright owners can get them (in most cases) without any regard to what their actual damages from a particular infringement are.

  14. 14.

    Steve V

    May 27, 2010 at 8:25 pm

    Also keep in mind that Congress set these statutory damages amounts some years ago, before file-sharing became the copyright cause celebre it is today. I think Congress had different types of violations of different types of works in mind when they set up the damages scheme.

    Of course, the plaintiff doesn’t have to pursue statutory damages if they don’t want to. Or, having obtained a judgment for that amount, they can decide to settle it out later for much less. I have no idea what the RIAA does with these judgments it gets, but it’s possible that they just want it to be known that a big judgment can be awarded, to discourage infringement. Probably not good PR, but maybe they think it works.

  15. 15.

    merl

    May 27, 2010 at 8:29 pm

    didn’t Scooter Libbey use that defense? It worked for him.

  16. 16.

    DCr

    May 27, 2010 at 8:34 pm

    <blockquoteAnd in general, has the “I didn’t know it was illegal” defense ever worked in any case?

    Yes: See January 20, 2001, through January 20, 2009.

    (This has been another episode of “Simple answers to simple questions.”)

  17. 17.

    Brick Oven Bill

    May 27, 2010 at 8:35 pm

    I’m willing to bet that the recording industry founded these file sharing sites to ensnare young kids. They can make a lot more that way.

    Anyone want to second that?

  18. 18.

    Virginia

    May 27, 2010 at 8:37 pm

    This is actually a very interesting question. Normally, ignorance of the **governing** law is not an excuse, but ignorance of the non-governing law can be an excuse.

    For example, say I commit a crime in CA, plea bargain to something, serve no jail time, but move to NY and get a registered gun. Then I get arrested, and charged with felon in possession. It can be an excuse that I didn’t know that I was a felon.

    OR – it can also be an excuse in complicated regulatory regimes, say for instance income taxes. I know I’m supposed to pay taxes on my wages, but what if I believe I don’t have to pay it on this exotic statute my grandmother gave me. Turns out the statue was worth 20K (above the gift threshold). Might be what I didn’t wasn’t a “crime.”

    Basically, you need to have some sort of objective evidence of subjective advertence that what you are doing is wrong for each element of the crime. And for normal crimes, people are presumed to understand that murder=wrong, but for complicated things, the law makes allowances. Otherwise, strict liability + harsh penalties + ignorance = lots of “innocent” (i.e. people that don’t advert to the “evil act” of infringement) could pay huge fines/penalties.

    Not sure if this clarifies anything… :)

  19. 19.

    Starfish

    May 27, 2010 at 8:42 pm

    That she was a minor at the time may play significantly into things.

  20. 20.

    handy

    May 27, 2010 at 8:49 pm

    Sharing mp3s with the whole internets is really dumb. That’s what newsgroups are for.

    Woops, did I just say that out loud?

  21. 21.

    RareSanity

    May 27, 2010 at 8:57 pm

    @handy:

    Sharing mp3s with the whole internets is really dumb. That’s what newsgroups are for.

    Ok, I know I’m going to sound like I’m a NARC, but, how does this work?

    Are there “public” ones? Or, do you have to be invited to one? I DJ so I haven’t had to pay for music in years, just curious.

  22. 22.

    Violet

    May 27, 2010 at 9:00 pm

    And in general, has the “I didn’t know it was illegal” defense ever worked in any case?

    Republicans get away with it all the time: “No one could have predicted….”

  23. 23.

    mvr

    May 27, 2010 at 9:01 pm

    Two points:

    From the summary it looks like the exception was built into the law, so there is a question of statutory interpretation of the very statute that authorizes the suit for damages.

    And, this is a civil matter and not a criminal matter. So the issue of what it takes to be liable is partly determined by the statute.

    And now that I think of it a third point. Generally ignorance of the law is not by itself an excuse. But if a law is itself unclear enough that it doesn’t say what it covers it can be void for vagueness. So certain sorts of ignorance might get one out of trouble, for example, that sort of ignorance that falls out of the law having been written badly. Not that that seems to be her defense here.

  24. 24.

    handy

    May 27, 2010 at 9:05 pm

    @RareSanity:

    So umm…not endorsing this behavior but…yeah, anyway, if you’ve got a newsgroup client (like Outlook Express) and an account on a newsgroup server like for example hosted by your ISP then you can subscribe to newsgroups. From there, you can use your client to search different newsgroups, like alt.politics.us for example.

    Now most newsgroups are legit. They range from such innocuous topics like animal husbandry to OS advocacy to the LA Lakers, and the names of the newsgroups usually match the subject pretty close. Some, though are purely dedicated to posting binary files, one would open the message in the client and download the file, much like you would an attachment in an email.

    By the way, right before the advent of the original Napster, this was probably one of the primary ways people illegally shared music on the Internet.

  25. 25.

    Just Some Fuckhead

    May 27, 2010 at 9:07 pm

    Going before this high court on anything related to technology would scare the hell out of me. I imagine Scalia will pen his affirmation upholding the lower court’s ruling while listening to soothing music on his gramophone.

  26. 26.

    freelancer

    May 27, 2010 at 9:08 pm

    Obama just mentioned a suspension of two oil platforms off the coast of Alaska (among many, many others), but how much are you willing to bet Grizzly Mama Palin recoils in horror at this obvious, partisan attack on her and her children?

  27. 27.

    Calming Influence

    May 27, 2010 at 9:09 pm

    @Starfish: I’d have to agree with this. Considering that the majority of 14-16 year olds don’t know how babies are made, punishing them for not grasping the subtleties of copyright law seems harsh. Let’s give them a decent education first, then throw them in jail.

  28. 28.

    Calming Influence

    May 27, 2010 at 9:11 pm

    @Just Some Fuckhead: Dude, he’s a Supreme Court Justice. It’s an Edison Victrola.

  29. 29.

    beltane

    May 27, 2010 at 9:17 pm

    @freelancer: If those drilling platforms are left unmanned, men might come and use them to spy on Granny Starbursts as she sits on the toilet.

    And stop making fun of all special needs children. You are mean. Also, too.

  30. 30.

    RareSanity

    May 27, 2010 at 9:18 pm

    @handy:

    Gotcha. I imagine the variety wouldn’t be that great.

    animal husbandry

    Comedy gold… every time…

  31. 31.

    rootless_e

    May 27, 2010 at 9:36 pm

    whatever the new orleans federal appeals court decides is probably wrong, illegal, mean-spirited at best. It’s a federalist society monster.

  32. 32.

    mclaren

    May 27, 2010 at 9:48 pm

    And in general, has the “I didn’t know it was illegal” defense ever worked in any case?

    Of course. The Bush White House torturing and murdering innocent people, starting an illegal war of aggression by lying to congress, etc.

  33. 33.

    Steve

    May 27, 2010 at 9:54 pm

    I see a lot of people have already answered this, although a lot of the answers are just guesses. But I’d ruin the fun of the Internet if I said which ones!

  34. 34.

    gnomedad

    May 27, 2010 at 9:55 pm

    Millions of kids do this. I don’t approve, but there’s something icky about making an example of a handful of them.

  35. 35.

    eco2geek

    May 27, 2010 at 10:07 pm

    @RareSanity:

    I imagine the variety wouldn’t be that great.

    You’d be surprised. There are dozens of newsgroups in the alt.binaries.sounds.mp3.* hierarchy. The real problem is finding what you want (read: getting someone to post it for you). It’s often much faster to go to Amazon or iTunes for a track than to make a request that may go ignored.

    The original Napster was great because you could download damn near anything you wanted, whenever you wanted it. It probably had more variety than iTunes does now. Fortunately 99 cents isn’t a lot to pay, and you know you won’t get sued.

  36. 36.

    Ed Marshall

    May 27, 2010 at 10:16 pm

    It’s codified in Section 504(c)(2) of the statute. It’s not a legal term in a general sense, it’s only germane to the 1976 Copyright Act. I’m just a former IT asshole retraining himself to go to law school, but this would appear at a glance to be a classic question of common law vs. intent of the legislature which doesn’t have a pat legal answer.

  37. 37.

    JL

    May 27, 2010 at 10:21 pm

    If she is not an “innocent infringer” then who is according to the appeals court?

  38. 38.

    Ed Marshall

    May 27, 2010 at 10:25 pm

    A more clear “innocent infringer” would be say: you made a really bad ass song, and it turns out later that you had stole the bass line from someone else without realizing it. At least the way the law was written.

  39. 39.

    Douglas

    May 27, 2010 at 10:26 pm

    If you’re an individual there are minimum fines that are several hundred times of the actual damage caused.
    If you’re a company, there’s a maximum to your liabilities which might be a hundreth of the actual damage caused.

    …is there an National Association for the Advancement of Nonincorporated People or something one can join?
    Cause I’m fucking tired of having to sit on the back of the bailout bus (if it’s not even Corporations-Only) and having everything stacked against me in the courts, nevermind politics.
    And lets not talk about how they treat the lifes of us Non-incorporated as nearly worthless – “Hey, lets ignore all the safety concerns, if some of them die, we can always get more”.

  40. 40.

    Katie5

    May 27, 2010 at 10:31 pm

    In Canada, Crown Copyright Law has “ignorance is not an excuse” explicitly written in. And we see lots of intrusion of the RIAA here.

    Michael Geist, at U Ottawa, is the one of the most knowledgeable people in North America about copyright law. See the most recent post on his blog:

    Canwest’s Sarah Schmidt features an terrific story in which Industry Minister Tony Clement admits that he has infringed copyright in loading songs onto his iPod. Like many Canadians, Clement says that he shifted many CDs to his iPod, which now contains over 10,000 songs. What makes the article noteworthy is not the acknowledgement of infringement – Canadian Heritage Minister James Moore admitted infringing activity in using his PVR last year – but rather the focus on the need to update copyright law by legalizing activities that most Canadians view as perfectly acceptable.

    This is hilarious since Canada is in the process of creating even greater restrictions on downloads. Not fewer restrictions, although maybe we’ll see fewer, if ministers keep getting caught.

  41. 41.

    Karen

    May 27, 2010 at 10:48 pm

    The RIAA also says that it’s copyright infringement:

    If you have it on a cassette and transfer it to your own computer as an mp3. You’re supposed to buy the CD or the MP3.

    If you record from internet radio. Never mind the fact that recording from regular radio with a cassette is legal.

    If you have bought the CD, lend it to someone and that person downloads the songs or copies the CD.

    If you take songs from CDs you bought and burn a mix CD for someone.

    If you take a CD out of your library and copy it.

    And finally, if you’re playing a song on your own hard drive, if you record that on a tape recorder (yes they still exist.)

    This is not on P2P or even on the net at all. They want to force you listen to music on their terms. In their view, you’re already a criminal before you even commit what they consider to be a crime.

  42. 42.

    Karen

    May 27, 2010 at 10:49 pm

    @Katie5:

    I thought that you had a specific CD tax that factored in music being downloaded.

  43. 43.

    hells littlest angel

    May 27, 2010 at 10:55 pm

    Ah, the Steve Martin defense!

  44. 44.

    Douglas

    May 27, 2010 at 10:55 pm

    “Never mind the fact that recording from regular radio with a cassette is legal.”
    Yes, but It Kills Music

  45. 45.

    rageahol

    May 27, 2010 at 10:59 pm

    eco2geek:

    wrong.

    use binsearch.info as your search engine (or newzbin, if you can get an invite…), choose the stuff to render to an nzb file, import into your newsreader.

    its a little more complicated than searching a torrent site, but it’s also one-way if you want it to be. newsgroup providers, afaik, havent seen a lot of heat like torrent sites such as oink have, so theyre still pretty anonymous. and you can always use tor or some other vpn service if you’re paranoid.

  46. 46.

    tc125231

    May 27, 2010 at 11:06 pm

    Consider this. Wall Street bankrupts the nation. Illegally. We give them tax dollars.

    Some teen shares songs. Illegally. The Appeals Court says she owes $27K.

    So, ask yourself who a Congress that aids and abets such shenanigans is really working for?

    “He stole a loaf of bread! Let’s send him to Australia.”

    Incredible.

  47. 47.

    Triassic Sands

    May 27, 2010 at 11:10 pm

    .

    ..has the “I didn’t know it was illegal” defense ever worked in any case?

    It works all the time for professional politicians. (You know, the guys who write the laws.)

  48. 48.

    Darkrose

    May 27, 2010 at 11:25 pm

    It’s like Weird Al said: “You don’t wanna mess with the RIAA”.

  49. 49.

    Darkrose

    May 27, 2010 at 11:25 pm

    It’s like Weird Al said: “You don’t wanna mess with the RIAA”.

  50. 50.

    Darkrose

    May 27, 2010 at 11:25 pm

    It’s like Weird Al said: “You don’t wanna mess with the RIAA”.

  51. 51.

    eco2geek

    May 27, 2010 at 11:25 pm

    @rageahol: Point is, an indexer like Newzbin will certainly increase your chances of finding that song you want, but someone still has to post it first.

    (Although it does have the added benefit of hiding the flame wars.)

  52. 52.

    Darkrose

    May 27, 2010 at 11:26 pm

    Ack! I triple-posted, but I can’t delete. Sorry.

  53. 53.

    Katie5

    May 27, 2010 at 11:27 pm

    @Karen: yup, we got that but that covers the supposed loss of burning illegal copies of music onto CDs/DVDs.

  54. 54.

    Mr Furious

    May 27, 2010 at 11:28 pm

    @Karen: I’m guilty on three out of five counts, and countless times over decades.

    And for the record, I consider all five to be horseshit.

    —

    So back in the day, when I would buy all my music on vinyl, and then record onto cassette (Sony UX-Pro, btw), these asshats would claim I need to buy a tape?

    I thought there was a “for personal, non-commerical use” exception in there. If there was, when, why and how did it go away?

  55. 55.

    Mr Furious

    May 27, 2010 at 11:30 pm

    Oh, and feel free to add the RIAA dicks and their lawyers who decided to bleed this girl to the ground up matter for the “junk shot.”

  56. 56.

    Corner Stone

    May 27, 2010 at 11:40 pm

    @tc125231: “They’ll only get one finger while I’m shifting gears.”

  57. 57.

    Gian

    May 27, 2010 at 11:43 pm

    I am pretty sure that minors are presumed to be without cash, and they can’t enter contracts either, and while it may make sense to stick them and the parents with a bill when they do something like a crime, this has all the trappings of a civil suit.

    can you civily enforce a judgement agsinst someone presumed to be flat broke for a civil issue? – I mean I can see if she was say a drunk who t-boned a car and the court ordered her to pay for a funeral for someone killed as a result – I can easily see that order to pay cash stand no matter what. But an order not based upon a criminal act? done while a minor? are there no prisons? no workhouses?

  58. 58.

    Jamie

    May 28, 2010 at 12:09 am

    Suing your customers is a 21st century version of the customer is always right?

  59. 59.

    Martin

    May 28, 2010 at 1:15 am

    And in general, has the “I didn’t know it was illegal” defense ever worked in any case?

    Yes, in every single corporate case ever brought to trial.

    SATSQ

  60. 60.

    Prospero

    May 28, 2010 at 5:23 am

    She should have used I-Tunes Jamendo.

    Fixed.

  61. 61.

    Xenos

    May 28, 2010 at 7:05 am

    @Karen:

    If you record from internet radio. Never mind the fact that recording from regular radio with a cassette is legal.

    It has been years since I researched this issue (that is, since I had free Lexis at law school), but I thought the RIAA had a policy of avoiding testing this issue. In particular, if the recording is done from a web radio site that pays royalties (just like radio stations), I would think that to be a very weak case for the RIAA.

    Then again, given the way courts are going, I would not be surprised to someday be assessed for royalties on all the songs I listened to on FM over the last four decades.

  62. 62.

    Waldo

    May 28, 2010 at 7:08 am

    What if you have on your hard drive a bunch of tunes you ripped from Youtube using dirpy.com?

    No reason. Just curious.

  63. 63.

    Xenos

    May 28, 2010 at 7:38 am

    @Waldo: Dirpy looks a bit dangerous to me… if it leaves a trail or keeps a record of some kind, then you could be a subpoena away from trouble. You might be using it innocently, but if a court somewhere decides that this is improper you could be presented with a sizeable bill.

    If, hypothetically, someone were to leave audacity on while running the same youtube video it would arguably amount to the same degree (or not) of copyright infringement, but would any third party be any the wiser?

    This is an interesting question regarding the legal ramifications of copyright law in the context of changing technologies. Please don’t consider it legal advice, because it is not.

  64. 64.

    Toast

    May 28, 2010 at 7:45 am

    It should not be legal to fine someone 750x the value of the thing they “stole”. That’s straight-up fucking crazy. That could bankrupt even a casual or occasional peer-to-peer sharing user.

  65. 65.

    gorillagogo

    May 28, 2010 at 8:17 am

    I’ve never understood how a minimum fine of $750 for stealing a 99 cent song wasn’t a violation of the Eighth Amendment’s protection against excessive fines. Has anyone ever challenged it on these grounds?

  66. 66.

    Prospero

    May 28, 2010 at 8:17 am

    And let’s not forget that when you buy a 99c track, the artist actually gets just 9 cents or so. Who’s robbing who here?

  67. 67.

    Sinister eyebrow

    May 28, 2010 at 9:07 am

    “I didn’t know it was illegal” is not a defense in either civil or criminal cases. That being said, when accused of something that is not so heinous as to destroy all sympathy (like violent crimes or sex offenses), presenting yourself as an utterly pathetic, hapless idiot can be helpful when a judge or jury is determining liability or deciding on a penalty.

    “Yep, he did it, but he also got his scrotum caught in his zipper during every bathroom break in the trial. What can we really do to punish him that he hasn’t already done to himself?” Is what you’re going for in these situations. Works in child support court about 25% of the time.

  68. 68.

    TooFunnyToBePresident

    May 28, 2010 at 11:17 am

    I am an actual attorney with experience in copyright law, and so I’d like to attempt to answer John’s actual question.

    First, what the Court received was a petition for certiorari, a request that the Court agree to hear the case. The vast majority of these petitions get denied. It is my fervent hope that the Court agrees to hear this one. I’ve read the petition written by Camara and Sibley, and it’s actually very good.

    As noted above, statutory damages under 5 U.S.C. 504 are set at a minumum of $750 for each act of infringement; however, the next subsection of the statute provides that where the infringer proves she wasn’t aware and had no reason to believe she was infringing copyrights, a court may reduce damages to as little as $200. Whitney Harper would seem to be a cut-and-dried, textbook case of innocent infringement, and the district court judge did the only sane thing in applying this exception to her.

    The Court of Appeals, however, denied Whitney the protection of this exception based on its reading of a different statute, 17 U.S.C. 402(d), which says that if a copyright notice appears on the copy to which a defendant had access, a defendant can’t claim innocent infringement. The key words here are “had access.” Whitney never had or saw the original CDs. All she had was the computer files, which lacked any copyright notice.

    I really hope the Court takes the case and rules that 17 U.S.C. 402(d) does not preclude a user of the internet from seeking the protection of 5 U.S.C. 504 if the user never had physical possession of a hard copy of the work with the copyright notice attached. This wouldn’t require a judge to give the defendant the protection of the statute, but would allow her to do so if the facts warrant it. The 5th Circuit’s ruling basically precludes a judge from doing that.

    Given the nature of file sharing, it seems clear that would be the most logical way to interpret the statutes, and it would let Whitney to benefit from protections that are already written into copyright law. This case actually presents a really, really important question of law with broad implications for anyone who shares anything on the internet. Let’s all hope the Court does the right thing here.

  69. 69.

    brantl

    May 28, 2010 at 11:50 am

    @Brick Oven Bill: Can we ask BoB to shut the hell up? Will anybody second that?

  70. 70.

    Derek

    May 28, 2010 at 12:29 pm

    @Mark S.:

    They’re “punitive damages.”

    It’s still fucking stupid, though. The RIAA infuriates me. Fucking extortionists who don’t give a shit about the artists they supposedly represent.

    EDIT: Man, I sure am glad “fuck” and “shit” don’t trigger the filter.

  71. 71.

    Derek

    May 28, 2010 at 12:33 pm

    @Randy Paul:

    Actually, I’m not sure if iTunes even existedwhen this girl committed her infringement.

    Also: Edited to add that the RIAA has even attempted to collect damages for downloading songs from non-RIAA artists before. Make no mistake, the RIAA is as evil as they come.

  72. 72.

    Derek

    May 28, 2010 at 12:39 pm

    @Calming Influence:

    Where are you going to send them to get a decent education, though? Europe?

  73. 73.

    patrick

    May 28, 2010 at 1:14 pm

    The RIAA also says that it’s copyright infringement:
    If you have it on a cassette and transfer it to your own computer as an mp3. You’re supposed to buy the CD or the MP3.
    If you record from internet radio. Never mind the fact that recording from regular radio with a cassette is legal. If you have bought the CD, lend it to someone and that person downloads the songs or copies the CD. If you take songs from CDs you bought and burn a mix CD for someone. If you take a CD out of your library and copy it. And finally, if you’re playing a song on your own hard drive, if you record that on a tape recorder (yes they still exist.) This is not on P2P or even on the net at all. They want to force you listen to music on their terms. In their view, you’re already a criminal before you even commit what they consider to be a crime.

    I thought under personal use rights, you were legally able to make a backup copy of purchased materials (in this example, a CD, tape, or record copied to your computer hard drive, or converted to a CD). Wouldn’t the prudent person, like most businesses, keep their backups off-site, like say at a friend’s house? ;)

  74. 74.

    Derek

    May 28, 2010 at 1:18 pm

    @brantl:

    I’d second that. The RIAA and major labels aren’t that smart.

  75. 75.

    Randy Paul

    May 28, 2010 at 2:36 pm

    @Derek: I-Tunes Store opened in April 2003. EMusic was around as early as 1998. She could have also done what I did at her age: bought the music as a CD or (in my case), LP’s.

  76. 76.

    Randy Paul

    May 28, 2010 at 2:41 pm

    @Prospero: And when you copy a track they get nothing.

  77. 77.

    Randy Paul

    May 28, 2010 at 2:46 pm

    @gorillagogo: In the one case I know of involving a decision concerning excessive fines, it did not involve a statutory penalty. I doubt seriously if the SCOTUS would rule against a fine specifically mandated under law as bein an excessive fine.

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