Whitney Harper, found guilty of illegally downloading 37 copyrighted songs while she was between the ages of 14 and 16yo, says she’s not sure how she’ll be able to come up with the $27,750 a judge ordered her to pay to record labels for copyright infringement.
She was initially granted an “innocent infringer’s” exemption by US District Judge Xavier Rodriguez back in 2008, and ordered pay $200 p/violation, or $7400, instead of the Copyright Act’s minimum of $750 p/violation, or $27,750.
Harper had argued that she qualified as an “innocent infringer” because she was unaware that content available on KaZaA was “stolen or abused copyrighted material,” and that she hadn’t seen the notices on physical CDs warning her that the songs were copyrighted.
That ruling was revoked earlier this year by the Fifth Circuit Court of Appeals which ruled that it didn’t matter if she had seen the notices or not, the fact that they merely existed in the world was sufficient enough because they would’ve been similar to the ones on the CDs she did own. It then increased her fine to the statutory minimum of $750 per infringement ($27,750).
It’s a pyrrhic victory for the RIAA because Harper says that “As of right now, I don’t have a lot of options” to pay.
She avoided a jury trial because she feared a huge verdict like the one handed to Jammie Thomas. Thomas’ latest verdict on appeal stands at $1.5 Million for illegally sharing 24 Songs, but the one that surely scared Harper was when a jury awarded record labels $1.92 million, or $80,000 per song. A similar judgment would’ve seen her tab rise to $2.96 million! The law allows for statutory damages of up to $150,000 per willful infringement.
However, Harper now regrets not having requested a jury trial, and blames the decision on her youth.
“When you see the RIAA in there and how young I was, that I really didn’t know what I was doing, I think I would have had a different outcome,” she adds.
She thinks that after all, she was “just a child,” and doesn’t believe that a jury would have honestly felt her responsible for millions of dollars worth of damages.
I agree, and Justice Samuel Alito, who in a lone dissent from the Supreme Court’s recent decision not to hear the case, pointed out that the Court of Appeals failed to take into account her youth and obvious lack of “legal sophistication” in concluding that she should have had “reason to believe” that her actions were illegal.
She say that so far she hasn’t received an official bill from record labels demanding the $27,705, but adds that her likely only recourse will be to declare bankruptcy.