Saturday, December 04, 2010

SCOTUS won't hear Texas appellant on digital music downloads

The US Supreme Court declined to hear a case involving a Texas teen and who claimed to be an "innocent infringer" regarding illegal music downloads, but I was interested to read Justice Alito's dissent (pdf) to the decision to deny cert. Alito noted that under federal law "if a prescribed notice of copyright 'appears on the published phonorecord or phonorecords to which a defendant . . . had access, then no weight shall be given to . . . a defendant’s interposition of a defense based on innocent infringement.'" However, in the era of digital music, the concept of a "phonorecord" becomes inapplicable, particularly since under 17 U. S. C. §101, “‘Phonorecords’ are material objects” and digital audio files are not.

For that reason, Alito argued "There is a strong argument [the law] does not apply in a case involving the downloading of digital music files." He believes that "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 §402(d) does not apply." For now, in the 5th Circuit, the opposite view will prevail. But it seems to me he's made an excellent point.


titfortat said...

Makes sense to me, now if I can just figure out how to download a Ferrari.

William said...

Now I will wait for every song to have multiple pauses during the playback "This song has been copyrighted by RCA records and it's affiliates, any unauthorized reproduction will result legal action" (resume song)

Anonymous said...

the RRAA have had, and will always have the court systems and the politico in their pockets. You can see from the Digital Millennium act just how pervasive this is.

The old argument that they lose 'millions' every year due to illegal downloads is crap, and they know it. Sales have not dipped significantly ever, and probably will not in the near future, unless of course people get serious about forcing the assholes to remand their tactics.

A Texas PO said...

Corporate boondoggling aside, Alito has made several good points over the years that have been ignored. Luckily for the RRAA, LimeWire (the last file sharing software programming that I know of... which isn't saying much) has been forced to end it's free sharing thanks to the Feds. I still feel no shame for having downloaded songs "illegally" when I saw no copyright. Heck, as a kid, I used to record songs from the radio onto cassette. I guess I committed copyright infringement when I made a mixed tape (and gave it to my gal) back in the '80s. I'll shed a tear for music artists and actors when I see them having to hitchhike to movie sets and concerts due to lack of income from their works of art.