Copyrights were always designed to be exclusive. They only grant the privileges allowed by the U.S. Copyright Office to the author(s) of the intellectual work or anyone who legally purchases those rights from that author. The purpose of copyright is to protect the creators from thievery or false acquisition of their exclusive intellectual property rights. “Copyright infringement” is defined by professor Joel Leach as “a violation of the exclusive rights granted by copyright law to a copyright owner.”[1]
Copyright infringement has existed as long as people have admired creative works. Every musician that writes music has written pieces and played movements similar to another composers piece; but has not taken full credit for others works. In a legal sense, taking credit for another’s intellectual work is a form of robbery on the grounds that the infringer might take away business or reputation away from the original creator.
The first premise behind owning copyrights, is the evidential proof that shows who actually created the work, and who copied it after proceeding to claim it as their own creation (usually with the intention of acquiring monetary and/or reputational gain). The second premise of owning copyright, from a legal standpoint, is the original author's right to reclaim any profit (usually money) gained under false pretenses by the “infringer” along with charging the thief with punitive damages. This is what is called a “remedy” for criminal convictions.
There are four types of remedies that may or may not be sentenced depending on the case: injunction, impoundment, destruction and damages.
An injunction is an action simply to stop the infringement from taking place, temporarily or finally by order of a court with proper jurisdiction. This might be the only remedy in cases of “innocent infringement” when a writer truthfully was not aware that they were infringing, or in cases where a very small-time infringer does not understand the scope of the law (maybe a public school teacher holds a theatrical play of a copyrighted work, but does not know to clear it with the publisher).
Impoundment usually involves withholding of documentation such as printed copes of infringed product, or the equipment used in manufacturing those illegal products, depending on the type of claim:
“At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.”[2]
A destruction order refers to when the court might decide to trash all of the infringing copies or equipment used to do so, and damages are the payback for which the infringer is responsible to pay.
“The infringer is liable, except as the law otherwise provides, for (1) actual damages suffered by the copyright owner as a result of the infringement; and (2) any additional profits gained by the infringer as a result of acts of infringement.”[3]
There also might be additional punitive damages like serving time in prison and/or a financial penalty for breaking the law:
“…with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.”[4]
This is a pretty generous sentence as many file sharing cases today result in much higher fines. The case of RIAA v. Tenenbaum in 2009, the court awarded the RIAA and relevant record labels with damages of $675,000 for willfully and illegally file sharing of only 30 songs!
“Following Tenenbaum's confession, U.S. District Judge Nancy Gertner ruled that the jury had only to decide if the infringement was willful and what the amount of damages awarded to the four prosecuting recording labels should be. After a three-hour deliberation Friday, the federal jury ordered Tenenbaum to pay a financial penalty of $675,000, which translates to about $22,500 per song.”[5]
In this case the defendant pleaded guilty right off the bat. Was $22,500 really necessary for sharing only 30 songs? Not in this author's opinion, but the article does not state all of the details such as which songs were illegally traded and how many people were exposed to the illegal files; it is possible that the songs could have all been unreleased hits. It seems to this author that perhaps this was a case where the judge made an example out of the defendant in order to warn others that the government really is cracking down.
Not all infringement cases consist of an individual versus a large company. Many lawsuits over copyright infringement have to do with publishers and big corporations who might have used the songs in more ways than they actually bought licenses for. Here is a present day example:
“MCS Music America, which says it administers almost 45,000 tracks, is suing Yahoo (NSDQ: YHOO), Microsoft (NSDQ: MSFT), and RealNetworks (NSDQ: RNWK), basically saying that they left some seemingly big Ts uncrossed when they obtained the rights to offer some songs to their members… MCS Music America wants the tracks taken down and is also asking for damages—either “actual damages and profits derived by the defendants” or $150,000 for each act of copyright infringement (That could add up since it takes 90 pages for MCS Music America to simply list all the songs that it says have been misappropriated—and MCS Music America says that a separate act of copyright infringement took place each time one of those songs was downloaded or streamed).”[6] This example took place because Yahoo and Microsoft only licensed the “master” uses of MCS’s catalog and did not license the publishing rights.
This author believes that this example makes much more sense than the first example- Why is it that a big company suing another big company only wants a hundred fifty thousand dollars for 45,000 titles, but the record labels can sue an illegal file sharer almost $700,000 for thirty songs? Perhaps debates like this are why the music industry is suffering from billions of dollars lost in waiting for the courts to understand the concepts of copyrights and publishing.
Despite ongoing lawsuits and court sentences, there are several exceptions to copyright infringement that may relieve a possible infringer from penalties. The first is if the defendant can prove that their infringed work falls into either the public domain or “fair use.” If a work qualifies for fair use, copyright law will hold that infringer as exempt from any criminal punishment.
“Even these uses, however, will be evaluated on a case-by-case basis, taking the following into consideration: (a) the purpose or character of the use, including whether such use is for commercial purposes or nonprofit educational purposes, (b) the nature of the copyrighted work, (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, (d) the effect of the use may have on the potential market for, or value of, the copyrighted work.”[7]
If the “infringing” use does not fall into fair use, exceptions can still be made in rare occasions such as “innocent infringement.” This includes situations where the judge rules that the defendant was unaware that they were breaking the law, because they didn’t know the works were eligible for copyright or the copies they are accused is infringing were illegal:
“The first is where a person can show that he did not know, and had no reasonable grounds for suspecting, that copyright subsisted in the work infringed… the second situation is where the defendant can show that he believed, and had reasonable grounds for believing, that the infringing copies were not in fact infringing copies.” [8]
One real life example of innocent infringement is the case of RIAA v. Harper on August 10th, 2008 in which the RIAA attempted to sue a teenage girl for her extensive use of illegal file sharing using the Kazaa program:
“Whitney admitted to using KaZaA as well as downloading and sharing music over the P2P network, but said she didn't realize what she was doing was wrong. Her technological illiteracy and age made her incapable of intentionally infringing the record labels' copyrights, she argued. In his ruling, Judge Xavier Rodriguez quotes an affidavit submitted by Harper saying that she had "no knowledge or understanding of file trading, online distribution networks or copyright infringement." Since KaZaA didn't expressly inform her that the music she found on the network was "stolen or abused copyrighted material," she had no way of knowing that what she did was wrong. "Defendant had 'no reason to doubt' that her actions were '100% free and 100% legal' and that she believed programs like KaZaA 'to be similar to online radio stations,' wrote Judge Rodriguez. “[9]
This article also does not specify details, such as how old is Whitney? What constitutes being too young to understand that file sharing is illegal? Why isn’t Kazaa being sued for harboring potential infringers and collecting all the advertising money? The law must have adequate knowledge of the file-sharing program before deciding what the law should be.
The next example shows an Arizona couple who was being prosecuted by the RIAA for copying music from CD’s into their hard drives, but the only proof of illegal sharing was from screenshots of their files in shared folders:
The next example shows an Arizona couple who was being prosecuted by the RIAA for copying music from CD’s into their hard drives, but the only proof of illegal sharing was from screenshots of their files in shared folders:
“The judge concluded that even if defendant Jeffrey Howell had placed the items in a shared folder, a third party would have to dip into his hard drive to retrieve a copy. In other words, Howell could be responsible only for contributing to copyright infringement if it's proven that he put files into the shared folder and someone copied them, Wake said. Merely making copies of music available does not equal distribution, or primary copyright infringement, he said… Howell maintains that music service Kazaa copied content from folders he did not make public and essentially shared his entire hard drive.”[10]
Every court decision is case-by-case. Without knowledge of the program itself, the judge would never have sufficient evidence to determine whether the copyrights are being violated or innocently stuck in the wrong folder by a computers default actions.
The more complicated the cases become, the harder it gets to interpret the law; as more and more new verdicts are introduced the more important it is for a publisher to understand what they should be entitled to. Most important of all is that a publisher know that every copyright should be cleared with the original writers representation and that as long as the courts keep protecting the exclusive rights of copyright owners the industry will continue to thrive.
[1] Leach, Joel T. Music Copyright Basics. Alfred 2003. Van Nuys. p. 38
[3] Baskerville, David The Music Business Handbook and Career Guide. Thousand Oaks: 2006 p.109
[5] Federal Jury Awards RIAA $675K In Tenenbaum Copyright Case http://www.crn.com/software/218900363;jsessionid=I3GM44UA4SI2BQE1GHPCKH4ATMY32JVN
[6] Tartakoff, Joseph. Music Firm Sues Microsoft, Yahoo, and Real Networks Over Copyright Infringement http://www.cbsnews.com/stories/2009/07/01/paidcontent/main5127052.shtml
[7] Leach, Joel T. Music Copyright Basics. Alfred 2003. Van Nuys. p. 26
[8] History of Copyright Oxford Music Online 2009
[9] Judge: RIAA Damages Too High In Innocent Infringement Case http://arstechnica.com/tech-policy/news/2008/08/judge-riaa-damages-too-high-in-innocent-infringement-case.ars
[10] Jones, K.C. Judge Rejects RIAA's Music Copyright Infringement, Distribution Claims http://www.informationweek.com/news/personal_tech/music/showArticle.jhtml?articleID=207403664
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