Copyright Infringement Cases: Music Copyright Infringement to address "Innocent Infringement" defense in music downloading case.
Attorney Kiwi Camara discusses the petition in front of the U.S. Supreme Court concerning the Maverick Recording Co. v. Whitney Harper case which involves the downloading and sharing of music online. The question before the supreme court is whether or not people who download music can be innocent infringers.
ANNOUNCER: Announcer: Welcome to Copyright Law Radio sponsored by Traverse Copyright Law, internet lawyers specializing in copyright infringement cases, copyright licensing and copyright registration. Now here’s your host, Damien Allen.
DAMIEN ALLEN: Good afternoon and welcome to Copyright Law Radio. My name is Damien Allen, and joining me on the phone today is Kiwi Camara of Camara & Sibley, LLC. Good afternoon Kiwi, welcome to the program.
KIWI CAMARA: Hi. Thanks very much for having me.
DAMIEN ALLEN: It’s a pleasure to have you with us today. We’re discussing the Maverick Recording Co. v. Whitney Harper case that has been going around for quite a few years now. Kiwi, if you give us just a little bit of background on what this case is and how it came to be?
KIWI CAMARA: Sure. This is one of the tens of thousands of cases that the recording industry has been filing against individuals who download and share music online, using things like Napster or Kazaa. They file these cases around the country, and slowly they’re working their way up to the Court of Appeals, and ours, the Harper case, is the first of these cases to reach the Supreme Court. And the question in front of the Supreme Court is whether or not people who download and share music can ever be what’s called an innocent infringer. And that matters because it greatly reduces the amount of money that they’ll wind up owing to the recording companies, if they’re found guilty of copyright infringement.
DAMIEN ALLEN: Now, right now the low end of the statute for someone who is found infringing, downloading music, if I remember correctly, is around $750 up to $30,000 per download, is that correct?
KIWI CAMARA: It’s up to $30,000 unless it’s found to be willful infringement, in which case, it’s up to $150,000, I believe.
DAMIEN ALLEN: And this is per item that is downloaded?
KIWI CAMARA: Per song, per song. And, if you look at the judgments around the country, in Minnesota, there was a judgment for more than a million dollars, in Massachusetts, there was a judgment for $600,000, against individuals. In those two cases, a single mother and a college student who downloaded music online. So, we’re talking about big sums of money.
DAMIEN ALLEN: And these are downloaded from file sharing systems servers, Napster, Kazaa, Limewire, stuff like that. These are not people that are getting these tunes, making their own mixed CD’s and then selling them to the general public.
KIWI CAMARA: No.
DAMIEN ALLEN: This is somebody that’s downloading for personal listening.
KIWI CAMARA: That’s right. These are non-commercial cases at all. These are ordinary people who downloaded Napster and listened to some music.
DAMIEN ALLEN: In this case, it’s been bounced back and forth through different circuits, there is a petition in front of the Supreme Court, and the idea behind this is we’re trying to petition and find out if we can take this into court as innocent infringement which reduces the cost of what the fee would be, if he/she is found guilty of infringing on copyright. How far does this reduce the cost of infringement?
KIWI CAMARA: It reduces the minimum from $750 to $200 per song.
DAMIEN ALLEN: And how important is this particular question? I understand this is the first case to go to the Supreme Court. What is the prospective outcome? What’s the next step after the Supreme Court see this?
KIWI CAMARA: Well, the first step is to get the Supreme Court to decide to hear the case. And that’s what they’re currently deciding. As you know, the Court hears a small fraction of the cases that are put before it, and we’re hoping to be one of those cases. If the Court agrees to hear us, then they’ll hear an oral argument that we hope rule in our favor that Whitney Harper is an innocent infringer or rather isn’t disqualified from being an innocent infringer, and then the case would be sent back to the district court for a trial which would determine how much, if anything, she owes.
DAMIEN ALLEN: Now, if this comes back from the Supreme Court and the allowances that she can be considered an innocent infringer, we’re looking at a difference of $30,000 for the attested crime of copyright infringement to $6,600. Will this allow reverse judgments on other cases that are similar where somebody can go back and say this is the same situation, can we get the fee reduced?
KIWI CAMARA: Any case that’s still pending would, of course, get the benefit of the Supreme Court’s clarification of the law. But more importantly, what we’re trying to do in this case and in the other recording industry cases that we’re litigating is obtain legal rulings that make it clear that an industry can’t out and do something like this, where they sue end-users who are downloading things for personal use, you know, they’re not suing the Napster’s or Kazaa’s of the world, and just intimidate people with the fear of federal litigation into paying thousands of dollars to make the cases go away. So, our goal is to make that not a feasible option, and as you know, it started with the recording companies but now movies are the subject of a new round of litigation in Washington and around the country. Newspaper articles have triggered suits like this against people who post them on the web, and we just don’t think this is a good use of the federal courts, for people who generate content, who intimidate ordinary everyday Americans into paying thousands of dollars because they can’t afford to fight in court.
DAMIEN ALLEN: Now, is this any different, and the file sharing networks are set up so that you can share files between other computer users, you can grab music from them, they can grab pictures from you, grab music from you, whatever. Is this any different than, you live next door and you borrow a CD from me, technically, when you break it all down?
KIWI CAMARA: It is different from that situation because the music companies have never claimed that you can’t loan your CD or sell your CD to another person. But what it’s like, for example, people who made tapes off of music on the radio, that’s exactly like this and would also be infringement. Another example would be people who duplicate their CD’s and share those with a friend or relative. That would be a violation just the same way as the file sharing stuff is.
DAMIEN ALLEN: Now, none of these file sharing companies, Kazaa, Limewire, do any of these companies have any form of writ on their pages that say, “don’t do this”, this is illegal.
KIWI CAMARA: I don’t know what they have now, but, of course, their testimony in this case is clear that no such notice was given to Whitney Harper and she wasn’t aware that this was illegal. She thought this was internet radio, like Pandora, which is perfectly legal and not a form of copyright infringement.
DAMIEN ALLEN: Kiwi, what are the conditions for filing this petition for writ of certiorari, and how long before you know if they’re going to hear this case?
KIWI CAMARA: Well, the Court grants petitions for certiorari in two such situations. One, when there is a split between the circuit courts of appeal, and second in cases of unusual national importance. And here, we think that both conditions are met. There is a split between the circuits because the 2nd Circuit in DC Comics held that only notice on the copy of the copyrighted work used to infringe prevents someone from becoming an innocent infringer. That is, they ruled for us. Whereas, in the 5th Circuit and Harper’s case, the court ruled against us and in favor of the recording companies, so there’s a split between the Courts of Appeals and that means the Supreme Court needs to take the case in order to resolve that disagreement between the Courts of Appeals. Second, we think it’s an issue of national importance because tens of thousands of these cases are going on around the country, and because it’s so expensive to litigate in federal courts, very few of these cases make their way to the Courts of Appeals, much less, to the Supreme Court. So, if the Supreme Court is going to give us any kind of ruling on ?fication campaign, then our case may be its only opportunity to do it. As far as when we hear, that depends on the Court. We’ll hear certainly sometime within the next year and probably sometime this fall.
DAMIEN ALLEN: Now, while all this is pending, is the judgment completely in limbo, does all process stop until the Supreme Court has gone over this writ to figure out what they’re going to do?
KIWI CAMARA: Yes
DAMIEN ALLEN: Well, thank you very much for joining us today, Kiwi, and discussing this case with us.
KIWI CAMARA: No problem. Glad to be here.
DAMIEN ALLEN: You’ve been listening to copyright law radio. My name is Damien Allen, everyone have a great afternoon.