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The ruling was revoked earlier this year by the Fifth Circuit Court of Appeals which decided that the copyright notifications located on the CDs from which her illegally downloaded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.