Music is a different kind of work and the rule for that type is to put it on the label. They are not “getting away” with that.

As for ripped music where the label is not included, no copyright label means the innocent infringer qualifier can apply if a defendant can testify that they didn’t know about the copyright and the defence is reasonable, such as this case where the person was young and inexperienced with both copyright and P2P technology.

That many people would get in the habit of stripping the unwanted audio is a no-brainer. There would even be apps for it.
 
 
Digital tracks sold online are a little more difficult to label but since virtually all players and most P2P apps read the title from metadata tags then an industrywide practice to add text like “©Arista” or “©Sony” right behind the name of the song should be enough to satisfy existing law. The © character by itself would not be quite enough but adding the company name exactly fulfils copyright law. In a constrained context like a space-limited track name label the year or year range of copyright could reasonably be omitted with little risk of spoiling the authority of the notice.

The title tag, after all, is the most prominent metadata in a digital file and sufficient examples of copyright notices in the most prominent digital “label” of a music file would be good enough to stand up in court and create a workable precedent almost immediately. Placing it after, not before the title would make it less likely for people to strip it and watermarking sold tracks would virtually eliminate the possibility of stripping the notice and sharing because each file would still be unique and traceable to the original purchasers, supporting their liability while also denying them the innocent infringer qualifier.

Never, EVER rely on industry spin, press or third parties when discussing matters of fact or law in a civil or criminal case. Though MAFIAA representatives may steer the press to always refer to downloading as the issue you should know by now that this is a coordinated campaign to mislead the public in an attempt to deter them from downloading music or accessing it by any means that doesn’t involve the exchange of money.

The facts in this case are clearly laid out in the Order Denying Motions for Reconsideration of September 16, 2008. Read the section titled “Factual Background” on page two to see the actual allegations and the highly specific language used to express them:

“On June 5, 2004, Plaintiff’s investigator, MediaSentry, detected an individual with the username “whitnery@fileshare” at Internet Protocol (“IP”) address 24.174.166.204 using an online file sharing program to distribute Plaintiffs’ copyrighted sound recordings. The individual was distributing 544 digital audio files from a “shared” folder on the computer to other individuals on the file sharing network. MediaSentry determined that Time Warner Cable was the internet provider that had given this IP address to one of it’s customers, Steve Harper. Subsequent conversations between Plaintiffs and Steve Harper determined that Defendant Whitney Harper was allegedly responsible for downloading audio files onto the computer”

[Note that it was the DISTRIBUTION of files that triggered an investigation and that the only mention of downloading serves solely to determine who was responsible for the subsequent distribution.]

“MediaSentry captured metadata that showed the audio files listed in Exhibit A and Schedule 1 among the files available for download to other internet users from a shared folder on Defendant’s computer”

[The evidence is solely about MAKING FILES AVAILABLE for download,]

“The recordings in Exhibit C are audio files that were in one of the three shared folders used with the LimeWire file sharing program.”

[Note that the topic is specifically about SHARING.]
 
 
 
You will inevitably find that the only infringement at issue was distribution, or sharing, and an additional theory of “making available” was discussed in the next section, “Infringement of Copyrights”:

“With regard to the recordings contained in Schedule 1, Plaintiffs introduced a declaration from Elizabeth Hardwick (“Hardwick”), a Project Manager for MediaSentry. In the declaration, Hardwick declares that a certain exhibit “is a true and correct copy of a compilation of screen shots captured by MediaSentry…showing the list of 544 audio files that this computer was distributing to others for download.” Based on the summary judgement evidence, the court found that Plaintiffs were entitled to summary judgment on sixteen (16) of the works listed in Schedule 1

[In the judge's own words the operative term is DISTRIBUTION, not downloading]

Regarding the recordings listed in Exhibit C, based on the summary judgement evidence, the Court found that Plaintiffs were entitled to summary judgment on fifteen (15) of the works listed in Exhibit C.”

[these were the files which were only mentioned in the context of SHARING, not downloading]

“To the extent that the court misconstrued Plaintiff’s motion for summary judgment and Plaintiffs only sought judgment on the basis of the “making available” theory, the court rejects Defendant’s argument that merely making copyrighted works available to the public is not enough evidence for summary judgment purposes to establish infringement.”

[See this? Distribution, referred to as "MAKING AVAILABLE", is determined to be enough for a judgment.]
 
 
 
It is no mistake that the expressions “Distribution” and “Sharing” are prominent in both findings of fact and interpretation of law in the summary judgment because they are precisely what copyright law is crafted to control. The new theory of “Making Available” is also brought forth because the record companies are actively trying to create a new law by creatively interpreting existing law to give them a tool against P2P. Whether or not that theory will become precedent is still undecided because it has not progressed through a level of court authorities sufficient to make it binding nationwide.

It doesn’t matter what ANYBODY ELSE says about what the infringement actually was. In each and every one of the few anti-P2P cases that made it into a court the facts and legal arguments all centre around distribution because it is the act of mass copying and distribution which is covered by copyright law, not unauthorized access or downloading.
 
 
 
The Amicus Curiae brief by Prof Nesson, Ray Beckerman and the remaining Amici mentions downloading only in the context of the innocent infringer defence in that copyright notices were not provided in the files Miss Harper downloaded; therefore she is shielded from excessive damages from liability for subsequently uploading those same files. Nowhere does it explicitly state that downloading was the offence of copyright because these men know copyright law and such a basic error would get their brief administratively rejected by clerks before it could land on the desk of a Supreme Court judge for review.

In summary, the law specifically forbids that one can claim innocent intent if a copyright notice is clearly posted ON THE WORK. The record companies have attempted to bypass provisions in legislated law and precedent in case law referring to the instance where such notice was removed or not provided by a previous infringer, which is precisely the case in ripped tracks shared on the internet.

The interpretation by the Fifth Circuit is an error in law which denies Miss Harper the reasonable and lawful defence that she was in an innocent state of mind because she did not know:

1. that the tracks were copyrighted [There was no indication that they were under copyright.]
2. that she had downloaded them [She thought Kazaa and LimeWire were players for listening to music, like a radio.]
3. and especially that she was inadvertently distributing them. [She didn't know Kazaa and LimeWire were sharing automatically]

Record companies’ claims that she “should have known” these three things is insufficient to override the established law because no legislation or precedent gives such claims enough weight. In any case, precedent cannot completely negate legislation unless it explicitly does so and then survives oversight all the way to the Supreme Court. The basic errors revealed in this Amicus Curiae brief should be sufficient to enable the Supreme Court to undo the errors and maintain the existing laws as they were intended.

The brief refers to historical context in which mass copying and distribution changed and grew in availability and how that evolution made it necessary for an innocent infringer defence in law and the concept of copyright notices. Read through that section and you will see that copyright refers to copying and distribution only, not access and reading/listening/watching to works.

BTW, good luck with your sales numbers if you do this.

“Subsequent discovery indicated that Harper had downloaded all of the files from the Internet to the computer without paying for them, and that she had not copied, or ‘ripped,’ any of the songs from compact discs that she had bought legally.”

You’re missing the point entirely. We’re not talking about parental responsibility we’re talking about the fact that a naive 14yo can’t claim an “innocent infringer” exemption and pay a reduced civil penalty. If she’s not an “innocent infringer” then who is?

The law clearly allows for the exemption.

Not bury her financially? What else would u call convincing a judge to fine a 14yo girl $27,000 instead of $7,000?

Quit with all the parental responsibility nonsense.

500 or more songs at a time? U know why they don’t? Because they can’t, they’ll look like idiots and prove how retarded current copyright laws are. With a cap of $150,000 for “willful infringement” 500 illegally downloaded songs would set you back a cool $75,000,000. Good luck trying to convince a judge and jury that a pimple-faced teenager caused $75mln in damages all by himself, especially since damages are perceived and not actual.

The damages aren’t for downloading, they’re for making available for uploading.

And if the RIAA truly just wanted to bury someone financially, they could just as easily be suing people for damages from 100, 500, or more songs at a time. Most people who file share their libraries will make that many available or more.

Maybe if parents don’t want their kids to be responsible for their activities online, THEY should take the responsibility and actually do their jobs as parents.