Turns away appeal by Whiteny Harper to determine whether or not she can claim “innocent infringement” 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.”
In a blow to those looking to mount an “innocent indfringer” defense against charges of illegal file-sharing, the Supreme Court has declined to hear the case of Whitney Harper v. Maverick Recording Company.
Harper was accused of illegally downloading 37 copyrighted songs when she was 16yo. She was initailly granted an “innocent infringer’s” exemption by US District Judge Xavier Rodriguez back in 2008, and ordered pay $200 p/violation instead ($7400) of the Copyright Act’s minimum of $750 p/violation.
Harper had 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.”
“I had no way of learning this information prior to this lawsuit,” she told the court.
Judge Rodriguez agreed, in part, because the RIAA failed to convince him that placing labels on the physical copies of the 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
That ruling was revoked earlier this year by the Fifth Circuit Court of Appeals which ruled that copyright notifications – located on those CDs wherever they may have existed in the world – was sufficient notification, mainly because they would’ve been similar to the ones on the CDs in her possession, and that she had to instead pay the statutory minimum of $750 per infringement ($27,750).
In a lone dissent, Justice Samuel Alito, said that he would have granted a petition to hear the case because there is no notice of copyright placed on digital files as there is with physical recordings, and that there is a “strong argument” that the provision negating an “innocent infringer” defense based on the existence of these notifications “does not apply.”
“This provision was adopted in 1988, well before digital music files became available on the Internet,” he writes.
“The theory of §402(d) appears to be that a person who copies music from a material object bearing the prescribed copy-right notice is deemed to have ‘reason to believe that his or her acts constituted an infringement,’ §504(c)(2). But 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. In such a case, the question would simply be whether the infringer “was . . . aware and had . . .reason to believe,” §504(c)(2), that the downloading was illegal,” adds Justice Alito.
He particularly singles out for criticism the fact that the Court of Appeals failed to take into account her youth – 16yo – and obvious lack of “legal sophistication” in concluding that she should have had “reason to believe” that her actions were illegal.
“Although ‘reason to believe’ is an objective standard, it is by no means clear that certain objective characteristics of the infringer—such as age—may not be taken into account,” he writes.
It’s something I’ve argued all along, that if a 16yo with no demonstrably clear knowledge that she was infringing others copyrights can’t claim an “innocent infringer” defense then who can? Nobody’s saying that she didn’t commit a crime, that’s been repeatedly ruled to be the case, but only that the lower amount of damages should be awarded.
Too bad the rest of Court didn’t agree.