Supreme Court Petitioned to Hear “Innocent Infringer” Case

Written By Jared Moya
August 20, 2010 | 17 Comments

Group of professors, scholars, and lawyers who “specialize in the intersection of law, technology, and copyright” file Amici Curiae brief asking the Court to hear the case of Whitney Harper, a 14yo cheerleader accused of illegally downloading 37 copyrighted songs, but for which she has argued that she “had no knowledge or understanding of file trading” and that she was doing something illegal.

Today a group of professors, scholars, and lawyers who specialize in the intersection of technology and copyright law filed an Amici Curiae brief with the Supreme Court asking that it hear the case of Whitney Harper, a file-sharing teen cheerleader who made the mistake of illegally downloading 37 copyrighted songs sometime between the ages of 14 and 16yo.

Harper won an initial ruling, of sorts, back in 2008 when US District Judge Xavier Rodriguez granted her an “innocent infringer’s” exemption to the Copyright Act’s minimum $750 p/violation and ordered her to pay $200 p/violation instead ($7400).

She argued that she was an “innocent infringer” because she “had no knowledge or understanding of file trading, online distribution networks or copyright infringement,” and that KaZaA and other P2P programs didn’t tell her that content available on their networks was “stolen or abused copyrighted material.”

Judge Rodriguez agreed, in part, because the RIAA failed to convince him that placing labels on the physical copies of the original CDs from which the songs must have originally come from was sufficient enough notification that the songs were copyrighted in order to negate her “innocent infringer” defense.

Since there were never any CDs involved in her actions there was never a warning for her to see. When it comes to the Copyright Act, you can’t claim “innocent infringement” if the copyright holder places a proper notification of copyright on the actual sound recording.

The ruling was revoked earlier this year by the Fifth Circuit Court of Appeals which decided that the copyright notifications located on the CDs from which her illegally downloaded songs came – wherever they may – was sufficient enough and that she had to pay the statutory minimum of $750 per infringement ($27,750).

“Although the district court allowed Whitney to claim an ‘innocent infringer” defense, the 5th Circuit Court of Appeals overturned the decision,” reads a post on Joelfightsback, a site dedicated to coverage of Joel Tenenbaum, another accused file-sharer embroiled in a tussle with the RIAA of his own. “This reversal was predicated on the notion that a minor surfing the internet on a computer in her parents’ kitchen is beholden to a copyright notice she doesn’t know to look for and might not understand, located on a CD she’s never seen, at a record store she has never been to and may never go to. This decision effectively removes innocent infringement as a defense when the Internet is concerned.”

Professor Charles Nesson, attorney for Joel Tenenbaum, thinks it’s pretty frightening to think that the “innocent infringer” defense has dwindled down almost to the point of nonexistence. After all, if an eight grader can’t claim ignorance then who can right?

“This case raises substantial questions about the application of statute to defeat any consideration of innocence of intent in imposing statutory damages for infringement,” reads the brief. “We are particularly concerned that this case, if unreviewed, will affirm the Seventh Circuit’s unprecedented assertion that a downloader cannot claim innocent infringement because she
‘readily could have learned, had she inquired, that the music was under copyright.’ As a consequence, the absurd conclusion is reached whereby notice in the record stores, never seen by the infringer, is
sufficient to put a digital user, in his or her home, on notice of copyright liability.”

The real irony here in all of this is that Harper is still liable for copyright infringement! All she’s tried to argue is that she “was unaware and had no reason to believe” she was infringing copyright at the time. It’s a matter of whether she pays $7,400 with the exemption or $27,750 without it. The latter would entail an outrageous economic burden to take on in what is now certainly nearing her college age years.

“Only this case and one other, both resulting from the Recording Industry Association of America’s litigation campaign against individual internet users, have held that notice posted on records in record stores can eliminate the innocent infringement defense,” continues the brief. “Even where, arguendo, the defendant can prove she was reasonable in believing that a digital file is free to copy, her innocent state ofmind is to be ignored. This pernicious doctrine deserves review before it becomes permanent and a precedential foundation for further impositions on internet users.”

If the ruling is allowed to stand it would mean that even the youngest of accused file-sharers, despite being wholly unaware of the copyright infringement notifications on CDs or the illegal nature of P2P, would also not be eligible for the “innocent infringer” defense.

Let’s hope the Supreme Court takes up the case.

Stay tuned.

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Jared Moya
I've been interested in P2P since the early, high-flying days of Napster and KaZaA. I believe that analog copyright laws are ill-suited to the digital age, and that art and culture shouldn't be subject to the whims of international entertainment industry conglomerates. Twitter | Google Plus

Books on tape are partly for the blind. A printed book puts a copyright notice on the title page so reading it into the audio book is normal and expected and does not alter the contents. Audio books are regulated along with printed books and e-books. Music is a different kind of work and the rule for that type is to put it on the label. They are not "getting away" with that. As for ripped music where the label is not included, no copyright label means the innocent infringer qualifier can apply if a defendant can testify that they didn't know about the copyright and the defence is reasonable, such as this case where the person was young and inexperienced with both copyright and P2P technology.

topcat

I meant that as a defense strategy - saying the "books on tape" folks add an audio warning, so why do the music folks get away without.

Aaron Walkhouse

For a CD the physical label is enough because the law specifically allows it. Adding an announcement to the audio portion would be, as you noted, too onerous for music files. It would also be, unlike in audio books, an alteration of the audio content which the law does not specifically authorize, leaving it vulnerable to challenge by both songwriters and musicians. This disadvantage alone outweighs the potential advantage of a copyright notice. That many people would get in the habit of stripping the unwanted audio is a no-brainer. There would even be apps for it. :) Digital tracks sold online are a little more difficult to label but since virtually all players and most P2P apps read the title from metadata tags then an industrywide practice to add text like "©Arista" or "©Sony" right behind the name of the song should be enough to satisfy existing law. The © character by itself would not be quite enough but adding the company name exactly fulfils copyright law. In a constrained context like a space-limited track name label the year or year range of copyright could reasonably be omitted with little risk of spoiling the authority of the notice. The title tag, after all, is the most prominent metadata in a digital file and sufficient examples of copyright notices in the most prominent digital "label" of a music file would be good enough to stand up in court and create a workable precedent almost immediately. Placing it after, not before the title would make it less likely for people to strip it and watermarking sold tracks would virtually eliminate the possibility of stripping the notice and sharing because each file would still be unique and traceable to the original purchasers, supporting their liability while also denying them the innocent infringer qualifier.

topcat

To make sure there is no doubt about copyright, the record company should place a digital audio warning on each actual track of the CD. That way there is no doubt, even if the song is digitally copied. Books on tape do this all the time. BTW, good luck with your sales numbers if you do this.

Aaron Walkhouse

And, just for your information, this was a civil case which does not involve criminal offence or criminal law. No crime was committed and there was never a possibility of jail or fines paid to the state. There is no comparison. Learn the difference. And once again, everybody, she was not "guilty" of anything. That's a criminal law term which has no relation to liability, a position in which you can be compelled to pay damages to a plaintiff. There was no crime, there was no "theft", and there was never a possibility that the young lady would be labelled a criminal by the courts. Unauthorized downloading is not the issue in this case, no matter what RIAA spin may say and unwary reporters may repeat. The issue in this case is [as always] about unauthorized sharing, which infringed on a right. The RIAA overstated the issue and made bogus claims about damages, drawing on legislation that they bought and paid for which was originally intended for large commercial infringements. A judge used the innocent infringer defence to stop them from destroying a life for no good reason but they refused to accept that judgment and managed to trick the Fifth Circuit Court of Appeals into the uncomfortable position of having taken an extreme position against the expressed intent of legislation. This judicial activism is very likely to be reversed by the Supreme Court with strong language because it attempted to eliminate a clearly defined and reasonable limit intended to prevent exactly the kind of injustice and abuse of process the RIAA routinely attempts in court. That a judge allowed himself to be used in this way may seriously impair his career.

Jared Moya Fan

Hey Jared Moya! Big fan (as you can tell by the name). Loved your previous articles. FREE WHITNEY HARPER. FUCK THE RIAA.

Jared Moya

Anonymous

People always say parents should be responsible for controlling their kids online, not governments. Then when the kids screw up, they say no one should be responsible. So every household with a 14 year old daughter can just make the same claim in the future and get off no matter what. That would make sense. So much for parental responsibility.

Jared Moya

?? She’s STILL GUILTY either way, both courts have said as much. The only question that’s being debated is how much she has to pay, whether or not she’s eligible for a reduced “innocent infringer” amount (

Anonymous

"With the RIAA in this case having suffered only $37 in damages for her illegally downloading 37 copyrighted songs it’s hard to argue that a 14yo teen and her family should have to pony up nearly $28,000, especially in this economy. " The damages aren't for downloading, they're for making available for uploading. And if the RIAA truly just wanted to bury someone financially, they could just as easily be suing people for damages from 100, 500, or more songs at a time. Most people who file share their libraries will make that many available or more. Maybe if parents don't want their kids to be responsible for their activities online, THEY should take the responsibility and actually do their jobs as parents.

Aaron Walkhouse

Yeah, that was a long post. No choice. Legal matters require that much precision. ;)

Aaron Walkhouse

Actually, no. It was for SHARING, also described as "DISTRIBUTING" or "MAKING AVAILABLE". Never, EVER rely on industry spin, press or third parties when discussing matters of fact or law in a civil or criminal case. Though MAFIAA representatives may steer the press to always refer to downloading as the issue you should know by now that this is a coordinated campaign to mislead the public in an attempt to deter them from downloading music or accessing it by any means that doesn't involve the exchange of money. The facts in this case are clearly laid out in the Order Denying Motions for Reconsideration of September 16, 2008. Read the section titled "Factual Background" on page two to see the actual allegations and the highly specific language used to express them: "On June 5, 2004, Plaintiff's investigator, MediaSentry, detected an individual with the username "whitnery@fileshare" at Internet Protocol ("IP") address 24.174.166.204 using an online file sharing program to distribute Plaintiffs' copyrighted sound recordings. The individual was distributing 544 digital audio files from a "shared" folder on the computer to other individuals on the file sharing network. MediaSentry determined that Time Warner Cable was the internet provider that had given this IP address to one of it's customers, Steve Harper. Subsequent conversations between Plaintiffs and Steve Harper determined that Defendant Whitney Harper was allegedly responsible for downloading audio files onto the computer" [Note that it was the DISTRIBUTION of files that triggered an investigation and that the only mention of downloading serves solely to determine who was responsible for the subsequent distribution.] "MediaSentry captured metadata that showed the audio files listed in Exhibit A and Schedule 1 among the files available for download to other internet users from a shared folder on Defendant's computer" [The evidence is solely about MAKING FILES AVAILABLE for download,] "The recordings in Exhibit C are audio files that were in one of the three shared folders used with the LimeWire file sharing program." [Note that the topic is specifically about SHARING.] You will inevitably find that the only infringement at issue was distribution, or sharing, and an additional theory of "making available" was discussed in the next section, "Infringement of Copyrights": "With regard to the recordings contained in Schedule 1, Plaintiffs introduced a declaration from Elizabeth Hardwick ("Hardwick"), a Project Manager for MediaSentry. In the declaration, Hardwick declares that a certain exhibit "is a true and correct copy of a compilation of screen shots captured by MediaSentry…showing the list of 544 audio files that this computer was distributing to others for download." Based on the summary judgement evidence, the court found that Plaintiffs were entitled to summary judgment on sixteen (16) of the works listed in Schedule 1 [In the judge's own words the operative term is DISTRIBUTION, not downloading] Regarding the recordings listed in Exhibit C, based on the summary judgement evidence, the Court found that Plaintiffs were entitled to summary judgment on fifteen (15) of the works listed in Exhibit C." [these were the files which were only mentioned in the context of SHARING, not downloading] "To the extent that the court misconstrued Plaintiff's motion for summary judgment and Plaintiffs only sought judgment on the basis of the "making available" theory, the court rejects Defendant's argument that merely making copyrighted works available to the public is not enough evidence for summary judgment purposes to establish infringement." [See this? Distribution, referred to as "MAKING AVAILABLE", is determined to be enough for a judgment.] It is no mistake that the expressions "Distribution" and "Sharing" are prominent in both findings of fact and interpretation of law in the summary judgment because they are precisely what copyright law is crafted to control. The new theory of "Making Available" is also brought forth because the record companies are actively trying to create a new law by creatively interpreting existing law to give them a tool against P2P. Whether or not that theory will become precedent is still undecided because it has not progressed through a level of court authorities sufficient to make it binding nationwide. It doesn't matter what ANYBODY ELSE says about what the infringement actually was. In each and every one of the few anti-P2P cases that made it into a court the facts and legal arguments all centre around distribution because it is the act of mass copying and distribution which is covered by copyright law, not unauthorized access or downloading. The Amicus Curiae brief by Prof Nesson, Ray Beckerman and the remaining Amici mentions downloading only in the context of the innocent infringer defence in that copyright notices were not provided in the files Miss Harper downloaded; therefore she is shielded from excessive damages from liability for subsequently uploading those same files. Nowhere does it explicitly state that downloading was the offence of copyright because these men know copyright law and such a basic error would get their brief administratively rejected by clerks before it could land on the desk of a Supreme Court judge for review. In summary, the law specifically forbids that one can claim innocent intent if a copyright notice is clearly posted ON THE WORK. The record companies have attempted to bypass provisions in legislated law and precedent in case law referring to the instance where such notice was removed or not provided by a previous infringer, which is precisely the case in ripped tracks shared on the internet. The interpretation by the Fifth Circuit is an error in law which denies Miss Harper the reasonable and lawful defence that she was in an innocent state of mind because she did not know: 1. that the tracks were copyrighted [There was no indication that they were under copyright.] 2. that she had downloaded them [She thought Kazaa and LimeWire were players for listening to music, like a radio.] 3. and especially that she was inadvertently distributing them. [She didn't know Kazaa and LimeWire were sharing automatically] Record companies' claims that she "should have known" these three things is insufficient to override the established law because no legislation or precedent gives such claims enough weight. In any case, precedent cannot completely negate legislation unless it explicitly does so and then survives oversight all the way to the Supreme Court. The basic errors revealed in this Amicus Curiae brief should be sufficient to enable the Supreme Court to undo the errors and maintain the existing laws as they were intended. The brief refers to historical context in which mass copying and distribution changed and grew in availability and how that evolution made it necessary for an innocent infringer defence in law and the concept of copyright notices. Read through that section and you will see that copyright refers to copying and distribution only, not access and reading/listening/watching to works.

Jared Moya

Actually no, it was for DOWNLOADING. "Subsequent discovery indicated that Harper had downloaded all of the files from the Internet to the computer without paying for them, and that she had not copied, or 'ripped,' any of the songs from compact discs that she had bought legally." You're missing the point entirely. We're not talking about parental responsibility we're talking about the fact that a naive 14yo can't claim an "innocent infringer" exemption and pay a reduced civil penalty. If she's not an "innocent infringer" then who is? The law clearly allows for the exemption. Not bury her financially? What else would u call convincing a judge to fine a 14yo girl $27,000 instead of $7,000? Quit with all the parental responsibility nonsense. 500 or more songs at a time? U know why they don't? Because they can't, they'll look like idiots and prove how retarded current copyright laws are. With a cap of $150,000 for "willful infringement" 500 illegally downloaded songs would set you back a cool $75,000,000. Good luck trying to convince a judge and jury that a pimple-faced teenager caused $75mln in damages all by himself, especially since damages are perceived and not actual.

Anonymous

Ignorance of criminal activity is never an excuse. "But your honor, I swear I thought she was 18!" Too bad. You're still going to jail. If she was too young to understand what she was doing on P2P, her parents should have never let her on it. I call bullshit.

Mountain_rage

Actually, you can get off if it was reasonable to think the person was of 18 years of age or older. Ultimately you have to take the persons word at face value. If she tells you she is 18 and there are witnesses to that statement you could probably get away with it. This case just is trying to say that only the original uploader and the copyright holders know of the copyright, and they are simply trying to argue that its not up to the public to get informed of the copyright, and that if they are not aware of it the penalties should be lower, since it was not intentionally done. Other examples in law where this applies is death, injury, etc.

Jared Moya

She's STILL GUILTY either way, both courts have said as much. The only question that's being debated is how much she has to pay, whether or not she's eligible for a reduced "innocent infringer" amount (<$200 p/infringement). Should we force a naive 14yo to pay $7400 or $27,750? It's stupid to say yes. Idiot copyright holders still get to ruin her life financially the question is just how bad. With the RIAA in this case having suffered only $37 in damages for her illegally downloading 37 copyrighted songs it's hard to argue that a 14yo teen and her family should have to pony up nearly $28,000, especially in this economy. Also, can u please not compare P2P with the disgusting practice of having sex with underage kids? It's pretty insulting to say the least, and it's offensive to the people who have been victims of the practice Im sure. Save your hyperbole for drunken games of poker please. BTW she's not going to jail and she was only 14yo at the time. In an era of broken budgets u want to send 14yo to prison? God you're an idiot, but Im sure you get that a lot.