Maverick v. Harper and et... RIAA cases? Apply here?

[parkerbenson]

Such as Electra Entertainment Group v. McDowell?

Innocent infringement.

In Maverick v. Harper, a San Antonio, Texas, a teenager admitted to copyright infringement using the Kazaa song sharing program.

Although admitting copyright infringement, she asserted an innocent infringement defense under 17 USC 504(c)(2), which could reduce the statutory damages to $200 per infringement.

The RIAA argued that defendant could not qualify for 'innocent infringer' status, since CD's of the songs sold in stores have copyright notices.

The Court disagreed, and denied the RIAA's motion for summary judgment unless the RIAA agrees to accept $200 per infringement, because she was using the file sharing program and didn't understand the images were copyrighted.

Are you using cases like these to help?

[Oscar Michelen]

Yes I think the RIAA litigation can provide some similarities and I think that innocent infringement is much easier to prove in image cases as who doesn't know that a song is copyrighted? And who would expect that a thumbnail image that you pay for from  a web developer or pull off of a site that says "Free Photos" or which comes with a website template you paid for. So I think it will be a valid defense in most cases.

[parkerbenson]

wow, i just found a follow up to the teenager case.  after the music company accepted the $200 damage award per song, her lawyers appealed and the appeals court found that the copyright notice on the CDs should have been enough notice that she shouldn't download the song from Kazaa.  The US Supreme Court denied to the hear the appeal, so she's stuck paying $750 per song awarded by he appeals court, and the ruling means people like her are not "innocent infringers".  

However, Justice Alito writes:  "(A) person who downloads a digital music file generally does not see any material object bearing a copyright notice, and accordingly, there is force to the argument that (the current law) does not apply."

[Matthew Chan]

Most people know, even teenagers, that commercial music is NOT free. Music files are far larger and require greater effort to download.  It is very difficult to "accidentally" download a song because of its size and how difficult it is to find. You actually have to download peer-sharing software to have access.  That is very much an intentional act.  Then to search out the music and then download.  Very hard to demonstrate innocence here.

Photos on the other hand are all over and come from all different sources including private individuals (most are freely shared here). People in the entertainment industry don't generally make a fuss when private hobbyists devote websites to their favorite shows, stars, etc. because it is free publicity and marketing. Most businesses also don't fuss too much when others show or spotlight their products/services with photos either. In fact, many encourage it.  Photos are clearly in all search engines and a right-click away from being on your computer.

To me, music vs. stock photos are quite a bit different to show innocence.

Matthew

[parkerbenson]

completely agree... if you are listening to a mariah carey song you downloaded from kazaa, you know where it came from - Maria Carey...

if you find a photo on a public domain site, on someone's random site, and it's not copyrighted, and you do some searching and can't find it on pay sites, and maybe you ask the site where you found it for permission, but no one responds, or they say sure it's public domain, etc., or there's no contact information, there are so many millions of images, how can anyone know what is and what is not copyrighted, unless they simply don't use images they haven't taken.  even people who purchase images seem to get caught by Getty's scam letters, so what is safe?  make your own images?  what if they wind up on someone else's photo image site and then getty purchases that, will you then be sued by getty for using your own image?

the digital world is it's own world and new rules should come into play.  it's like taking photos at the beach, if it's in public, you can take pictures, unless someone is saying "NO, YOU DON'T HAVE PERMISSION TO TAKE MY PHOTO."  sure it's polite to ask, but how many AP photographers are going to stop and ask someone running from a burning building, can i take your photo?  

we are somewhere in between that -  taking photos in public and the music world.