Psycho Sensei

For the Cynics, an Antidote: The Order in Capitol v. Foster:


I gather from comments on the last article that some among you are not yet convinced that anything close to justice can ever happen in a courtroom. Well, dear SCO-wounded cynics, this is for you, an order signed on February 6 by Judge Lee West, a US District Judge in the Western District of Oklahoma, in the case of Capitol v. Foster . It should help you to see that while the courts may be slow, they can get there.

This order has to do with a woman who was not rich or powerful. A single mom. She started with no important friends to pull strings for her. What she had was innocence, a willingness to fight to prove it, and an unwillingness to give up and settle with the music industry, thus admitting to something she said she had not done. Indignation can be empowering, like a wave you can ride a long way, indeed. She also had an attorney willing to work, I gather, for maybe next to nothing, if necessary, Marilyn Barringer-Thomson.

As a result, the music industry, which has been suing the poor and powerless -- some believe so as to build a body of one-sided case law around US Copyright Law -- has been told where the line in the sand is. The plaintiffs who massed against this defendant -- Capitol Records, UMG Recordings, Maverick Recording Company, BMG Music, Arista Records, Sony BMG Music Entertainment, and Warner Bros. Records -- have been told they will have to pay a reasonable amount, yet to be determined, of this vindicated defendant's legal fees, because she has been ruled the prevailing party, against all odds.

It's not the money. Or more accurately, it's not just the money, although surely the music industry will now be more careful who they sue, so as to avoid another outcome like this. It's the precedent that really matters. The music industry's attempt to establish that an Internet account holder is responsible for any copyright infringement that occurs using it, whether or not the person knows about it or approves it, has bitten the dust in a courtroom in Oklahoma:

The Copyright Act does not expressly render anyone liable for infringement committed by another. Rather, the doctrine of secondary liability emerged from common law principles.... Under those common law principles, one infringes a copyright contributorily by intentionally inducing or encouraging a direct infringement. The elements of a claim for contributory copyright infringement are: (1) direct infringement by third party; (2) knowledge by the defendant that third parties were directly infringing; and (3) substantial participation by the defendant in infringing activities.... Merely supplying means to accomplish infringing activity cannot give rise to imposition of liability for contributory copyright infringement.... One infringes a copyright vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.

That's it. Simple fairness.