Court Denies Innocent Infringement Defense To Teen For Sharing Music

from the reasonable? dept

You may recall a few years back that a teenager, Whitney Harper, who was getting sued by the record labels/RIAA for file sharing, claimed that the amount she should have to pay up should be less than the $750 statutory minimum, because she was an “innocent infringer,” unaware that what she was doing in listening to music was against the law. In fact, she didn’t even realize she was sharing files, but thought she was just listening to music, like radio. Surprisingly, the lower court actually agreed with her and said that $200 per song (for the 37 songs) was an appropriate amount. But, of course, the RIAA appealed, as (despite claims to the contrary in the Tenenbaum and Thomas-Rasset case) they need those huge potential amounts to use as a sledge hammer against file sharers. Unfortunately, an appeals court has overturned the lower court ruling, and said that the statutory minimum of $750 per infringement should apply — saying that the innocent infringement defense isn’t applicable because the CDs the music came on (which she never saw) had proper copyright notices.

As you may know, copyright law does allow for reduced statutory damages on innocent infringement, “where the infringer sustains the burden of proving . . . that [she] was not aware and had no reason to believe that . . . her acts constituted an infringement of copyright.” Given the details of this case, that seemed to apply — but the appeals court was having none of it. In the decision, it argues that the law says an innocent infringer defense cannot be applied (with one exception irrelevant to this case) if a proper copyright notice “appears on the published . . . phonorecords to which a defendant . . . had access.”

The court the says that because copyright notices are found regularly on CDs, then Harper effectively “had access” to those recordings, at least enough to know they were covered by copyright. Not surprisingly, I find this argument to be quite troubling. If we assume it is accurate that Harper was using LimeWire as if it were a radio to listen to music, then how would she know that she was violating the copyright on the recordings at all? Would someone listening to the radio know? What about someone listening to Pandora or Spotify. Based on this ruling, anyone can be put at risk of much larger statutory damages for copyright if they simply don’t know if the online streaming service they’re using has properly cleared the copyrights. That does not seem like a conclusion that makes sense, or would have been intended by Congress. Did Congress really intend for each user to do the research before using any online music service to make sure those services had properly cleared the copyrights?

Filed Under: , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Court Denies Innocent Infringement Defense To Teen For Sharing Music”

Subscribe: RSS Leave a comment
vivaelamor (profile) says:

Re: Re: inter-tubes

“Stealing is stealing. Would you sneak into your local book store, pocket a few books, and leave without paying?”

Would you ‘steal’ a kiss?

Would you buy something at a price low enough to be considered a ‘steal’?

Would you have let Marilyn Monroe ‘steal’ the show?

Please steal a dictionary. I’m sure the service to humanity would outweigh the negative consequences.

vivaelamor (profile) says:

Re: Re: Re:2 inter-tubes

“I see your thesaurus app is working. But your reply has nothing to do with what was posted. Trying to compare stealing a book with stealing a kiss is ridiculous.”

Thesaurus? I use a dictionary for semantics, I suggest you do too.

The point of my demonstration was to highlight that the word ‘steal’ can be used to mean different things. Stealing when used to describe copyright infringement is distinct from the use of the word in your book example.

Steal as used in your example: “to take (the property of another or others) without permission or right, esp. secretly or by force: A pickpocket stole his watch.” (

Steal as used when referring to copyright infringement: “to appropriate (ideas, credit, words, etc.) without right or acknowledgement.” (

While the distinction might not matter to you, when you use the two different meanings to draw a comparison you are either being deceptive or ignorant.

PaulT (profile) says:

Re: Re: Re:2 inter-tubes

“Trying to compare stealing a book with stealing a kiss is ridiculous.”

Trying to compare copying a digital file with stealing a digital book is equally ridiculous.

For your original analogy to even remotely work, you would have to replace stealing the book with photocopying it. Even then, it’s a poor analogy because finite, expensive physical resources are used in photocopying whereas none are used in digital copying.

Grammah Correction Specialist says:

We be sing wit’ some bad grammahrz!

1.) Avoid contractions in formal weddings. “Don’t” should be “do not”, “they’re” should be “they are”…
2.) Uh oh. I spot a missing article or pronoun! “had proper” is written, but should this be “had the proper”?
3.) Use a more accurate adjective than quite in “I find this argument to be quite troubling”
4.)It’s written that “If we assume”. “Assume” means “to accept without proof.” but “Presume” means “to accept before proof is established.” Wouldn’t presume be a better word?

Howz you’re grammarz? It’s the way I are!

isthisthingon (profile) says:

Re: Re:

Dear illiterate poop bowl of hate and intolerance,

Stop breathing. Furthermore, know that someone in this world sees the truth behind your fraudulent and opportunistic façade your fragile ego hides behind. You suck. Why am I so harsh on you? Because anything less scathing wouldn’t even be read by a sociopath such as yourself.

Quickly now, reduce my grammar to a dismissable straw man and quiet the storms of your sand castle self confidence. MTV is the ultimate achievement your current path has to offer.

Wake up or shut up. Actually, just shut up. Shut up until you start behaving like the less unoriginal beast your parents worked so hard to produce. They deserve better so don’t be such a poop stain. Now go clean your room.

Flakey says:

Should have known?

Honestly, I don’t think the appeals court had a clue.

While you can argue that the original may have had a CC notice, it is like pulling teeth to get that info from the labels. That is unless they are fixing to make an infringement case.

Look at how much trouble that the RIAA Radar site has in identifying what is covered by the labels who the RIAA represents and who is not.

The major labels do nothing to aid in this identification. In fact they make it extremely difficult to do so. Major artists get the award of their own named label. It is still held by the major but it looks like it doesn’t.

Knowing that lots of listeners are looking for the indies, they go as far as to try and hide that it’s not an indie.

All this means you can’t just look at the cd right off the bat without getting down with a magnifying glass to look if it is so labeled.

In the case of P2P and digital downloads, there is no physical label to read this on. I’m sure that the metadata has the name and even there, the metadata is changeable by whom ever had that copy before you or by the purchaser, if they are determined.

Nothing in digital is locked down that can not be unlocked by the determined, with a minor amount of effort and a good choice of search terms.

Anonymous Coward says:

Re: Should have known?

It should be a matter of law that if the *AA doesn’t list ownership of something that they own on a website, they can’t claim copyprivileges on it. the **AA are getting paid to work yet they’re too lazy to even list their privileges on a website yet alone create content. They want to get paid not to work and they are only good at suing people for no good reason.

Anonymous Coward says:

Re: Should have known?

“While you can argue that the original may have had a CC notice, it is like pulling teeth to get that info from the labels. That is unless they are fixing to make an infringement case. “

This is the equivalent of passing a secret law without letting anyone know what the law is and then enforcing the law on those who break it, despite the fact that there is no documentation telling us what the law is. You can’t pass a law saying “thou shalt not copy these songs” without first telling people what these laws are. Yet the RIAA gets to pass such laws with no oversight. They are basically a government body that passes secret laws that they then enforce on the masses without telling anyone what those laws are. Seriously, how is this even legal? At least with patents one might be able to do a patent search. In the case of copyprivileges, one can’t do a copyprivilege search because the **AA keep no records of what they hold a such privileges to. This is nonsense. We need some central database where everyone can search for works and know ahead of time what is and is not covered by copyprivlege law.

Anonymous Coward says:

Re: Re: Should have known?

and the purpose of these laws is to prevent the distribution of creative commons music. These laws are specifically intended to prevent me from downloading music released under a creative commons license in fear that such music might secretly be covered by copyprivilege laws. This is unacceptable, our government should invoke no such law.

Anonymous Coward says:

Re: Re: Should have known?

I know. They’re trying to promote the progress of innovation by encouraging people to become psychic. It’s the innovation of clairvoyance and remote viewing. By not knowing what the laws are we are forced to used our inherent psychic abilities to figure them out and determine what songs we can and can’t share and who is and who isn’t signed.

Pixelation says:

FTA “Even if the court agreed that Harper did not “distribute” the recordings under § 106(3) by making them available to others, the underlying finding of copyright infringement predicated on reproduction would remain.”

Wow! You don’t have to make it available, you don’t have to distribute it, just download it.
This seems like a big win for the **AA.
May the fleas of a thousand camels infest their armpits.

Anonymous Coward says:

If I bought something from someone who stole it and I didn’t know it was stolen, common sense says I shouldn’t get blamed. The law wouldn’t punish me either. Why does copyprivilege law have to be so stupid, to supercede such basic principles just to enforce some senseless law and punish someone who unknowingly infringes on something, an action far less harmful than taking or buying a stolen item from someone and not knowing they stole it. Not to mention the punishment for infringement can be far worse than the punishment for theft even, despite the fact that infringement isn’t even unethical yet theft is.

Pixelation says:

Re: Re:

“How does the RIAA choose its “victims”? 37 songs is basically the equivalent of a double-CD and seems pretty trivial. Surely there are millions of kids who download more than this?”

They send out thousands of letters threatening to sue if people don’t pay up. The ones that fight are their “victims”.

You can see an example letter…

vivaelamor (profile) says:

Re: Little Detais

‘How is it “moral” or “lawful” to distribute another person’s property without the owners’ permission? What details are being “hidden” by anyone?’

Who’s talking about distributing property? I thought we were talking about copyright infringement. While infringement can be considered unlawful, you’re going to have a harder time making a moral case, considering that her actions caused no harm to anyone else.

Anonymous Coward says:

Re: Little Detais

“What details are being “hidden” by anyone?”

The laws regarding what songs we may and may not copy. Those are being hidden because the RIAA and the government just expects us to know this stuff by magic. I’m sorry, I’m not psychic, and the RIAA’s and the courts and the laws position is absolutely preposterous.

vivaelamor (profile) says:

Re: Re:

“Check out the law – and take a look at the site – before you spout misinformation regarding existing copyright laws. Get educated – it’s our responsibility as participants in forums like these.”

You’ll have to be more specific than that, I don’t see anything on the front of and I don’t fancy exploring the whole site to chase a potential wild goose. Ditto with the law, which law? You haven’t even narrowed it down to a country.

vivaelamor (profile) says:

Re: Re: Re: Re:

“One should start with the laws pertinent to the jurisdiction involved with the case we’re discussing. Then study the Berne Convention. And if you do not know how to use a Web site as informative as the EFF’s – then I really wonder why you’re participating here.”

What do you do when, having pretended to read all that, I come back and say ‘no, you’re still wrong’? Finally tell me what your argument is, or continue to chase me around in a circle by telling me I’m wrong again?


Rekrul says:

Re: How do they do it?

I’m not overly naive, usually, but Limewire says it’s all anonymous. So how the hell does the AA know what me and a guy in Detroit are doing?

Because Limewire may be anonymous in that you don’t have to enter your real name, but the internet is not anonymous. It needs IP addresses to function. Think of it this way; Can you call someone if you don’t have their phone number? Can anyone call you if they don’t have your phone number? If you want them to be able to reach you, you need to give them your phone number. Let’s say that you walk into a public place and announce what your phone number is. Nobody there has any idea what your name is or where you live, so you’re “anonymous”. However if one of the people in that place thinks you’re doing something illegal, they can get a court order to force the phone company to tell them who that number is registered to.

IP addresses work the same way. When you download something, your computer “calls” the IP address of other users who have the file you want. As you download it, your copy of Limewire offers up a copy of that files to others, just as others offered it to you. Anyone can “call” your IP address and request a copy of that file. If it’s a copyright file and the person requesting it happens to work for the music industry, they can track your IP address back to your ISP. They will then, through a series of legal loopholes, get a court order forcing your ISP to tell them who that IP address is registered to. At which point, you get a nasty surprise in the mail.

ALL file sharing software works this way. BitTorrent, Kazaa, eDonkey2000, Direct Connect, etc.

The only way to hide your IP address is to pay a monthly fee for a VPN service, which will then route all activity trhough other IP addresses so that the people on the other end have no way to see your IP address. Think of it like using 2-3 couriers in a row to deliver your messages, only the first one knows who you are.

Joe Shmoe says:


The word “stealing” cant be used for downloading music. If someone were to steal a book or computer program, that is physical theft. it costs money to reproduce and distribute these materials and hence actually costs the company more money and is immoral and wrong as a whole.

However getting a digital copy of a song does not cost the record companies a single dime. They are suing for money they believed they are owed because of the “business that they lost” plus the costs of filing the suit and overhead. That is why its $750 per song.

You might be able to argue that its stealing on the basis of lost business HOWEVER, no one realizes that before the age of P2P programs and file sharing CDs were $20 minimum per album. THAT is why file sharing came to be. Can anyone recall how long the internet was around before file sharing came to be in demand?

They said the same thing about VCRs and Radios with tape decks when those came out. The media companies swore that both devices would be the death of media everywhere and we would soon have no more songs or movies because of these devices(sound familiar anyone, anyone?).

Not to mention the fact that in these cases there is very little to no information that says that these actual individuals downloaded and shared the songs. Ive even heard of a case where someone got rid of their old modem and got sued when the new owner was sharing music from the same modem.

Its pretty much extortion at this point.

Anonymous Coward says:

Due Dilligence

So this is what the US legal system has come to. Now, before you listen to any music you need to hire attorneys and have them research the relevant copyrights, subpoena and review licensing contracts, and then maybe go to court and obtain a declaratory judgment that your proposed usage is within the law. If you want to stay legal, that is (because copyright issues can be quite complex). Legally, this is called “due diligence” and the lawyers and courts absolutely love it because they make tons of money in the process.

You know what? Screw that shit.

Yow want music, movies, etc.? You might as well infringe then, because even if you try not to, you might accidentally do so anyway and innocent infringement is no defense under the law, it seems. In fact, if you go to a store and buy it then you’re probably just giving money to the same people who will take that money and turn around use it to sue you (or your children) someday. Don’t be stupid. Don’t buy it.

Fin says:

@ Clint Bradford

@ Clint Bradford

“Stealing is stealing. Would you sneak into your local book store, pocket a few books, and leave without paying?”

Is that all you got? That’s like claiming at Pharyngula dinosaurs walked the earth along Adam and Eve. If you’re going to be the new RIAA shill here you need to do some homework.

stealing – you lose your copy.
sharing – we both have it.

And btw, it’s called infringement, not stealing. Were you lying or just ignorant?

Try answering this. I bought the LP, the tape, the CD and the remastered CD. I think someone owes me some money back since I paid for the right to listen to the same shit several times.

What about all the CDs I bought without having the right to listen to them before buying? There was a time when music stores did not have any previews at all. I remember because I bought many discs that ended up being totall crap with only one good song. If you buy a stereo system and you don’t like it you can return it. Money back and no questions asked. Why is a CD different? We’ve all been ripped off after buying CDs we didn’t like. Again, someone owes us a lot of money!

I was waiting for Mickey Mouse to enter public domain. As luck would have it, when it was about to happen the maffia bought the politicians, rewrote the law and made an extension. No public domain for Mickey. Nice, huh?

So if you’re only go by the law when it favours you and change it accordingly because you have the power then I’m entitled to fuck you over. It’s a two way street.

The copyright and “intellectual” property maximalists are the scum of the eath. They are the reason culture is a load of crap. Britney Spears, boys bands, corporate rock and drag queen Ga Ga. None of that would have happend before copyright.

The sooner we get rid of them the better.

Flakey says:

new RIAA shill

What ever gave you the idea it’s new? A new name perhaps but the office that pays for the services is still the same.

The viewpoint hasn’t changed as they aren’t taking in money hand over fist unless the product is scarce.

Best things for trolls is not to feed them. You’re being short circuited on the feeding part as that is being taken care of off line.

clintbradford (profile) says:

Apologies ...

Sorry. Guess I’m from the old school. Where when I purchase my albums and enjoy them and make one archival copy for personal use. And where I believe it is wrong to post the music I have purchased on the Internet for any and all to download with no fees being paid to the legal creator and/or the artist’s chosen distributor for their works.

Anonymous Coward says:

Re: Re: Re: Apologies ...

Also educational for you and your iPod:

Finally, since understanding words is so difficult for you:

clintbradford (profile) says:

Re: Re: Re:2 Apologies ...

Yeah – Let me re-re-review my agreement with iTunes and Apple – and see where it is illegal for me to purchase music from them, download it to my computer, and save it to three or four iPods that I own.

Why have we lost common sense? When new record albums were released, I never dreamed of recording them to cassette and giving away copies to friends. But today, some people believe that everything should be free and freely disseminated.

Anonymous Coward says:

Re: Re: Re: Apologies ...

Funny. I cannot find any citations for court cases where one gets sued for keeping a copy of their purchased works on an iPod. Cite me a couple, will you please?

Heh, just because they haven’t gotten around to it yet doesn’t mean they don’t consider it “theft”.

When asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy, Jennifer Pariser, the head of litigation for Sony BMG, replied “Making “a copy” of a purchased song is just “a nice way of saying ‘steals just one copy’.”

So like the previous commenter suggested, you should go turn yourself in for theft now. Of course, you won’t do that because industry shills are big hypocrites.

Anonymous Coward says:

Re: Re:

While tells us that you haven’t been responsible for any original works. If you had published a book … or written music …

Actually, copyright doesn’t just apply to books and music, it applies to most kinds of original, creative, intellectual works. And since copyright is automatic, I imagine that probably every commenter here has created copyrighted material. Even my comments here are copyrighted.

You’d probably think differently about existing copyright law.

And you’d probably think differently if you thought it applied to you. However, seeing as how you freely quote from other people’s comments here (thief!), you apparently don’t think it does.

Anony1 says:

She knew what she was doing. I don’t know what’s worse, the RIAA’s tactics, or the gullable swallowing of this girl’s feigned ignorance by the users here. Clintbradford makes some good points. Regardless of the RIAA’s view point on back up files, they clearly are not very confident in the legal backing for this view point, as NO ONE here has been able to site case law. He asked (clintbradford) for case law examples of people being criminally liable for infringement based on back up archivals alone. None has been provided here. So unless this is just a pissing contest of ad hominem attacks, you pro-freedom fighters might want to STFU already.

vivaelamor (profile) says:

Re: Re:

“I don’t know what’s worse, the RIAA’s tactics, or the gullable swallowing of this girl’s feigned ignorance by the users here.”

Thankfully nothing I have said hinges on whether the girl is feigning ignorance or not, so I’ll presume you didn’t mean me.

“Regardless of the RIAA’s view point on back up files, they clearly are not very confident in the legal backing for this view point, as NO ONE here has been able to site case law.”

Probably because no one had asked anyone to cite case law, because no one has claimed that there is any case law regarding that point. However, I can cite a brief from the RIAA that backs up the point: “Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use”.

“So unless this is just a pissing contest of ad hominem attacks, you pro-freedom fighters might want to STFU already.”

Either: I see what you did there; or you have no concept of irony.

TSO says:

> Fifth Circuit Court of Appeals which has decided that those notifications – located on those CDs wherever they may have existed in the world

“As you will no doubt be aware, the plans for development of the outlying regions of the Galaxy require the building of a hyperspatial express route through your star system, and regrettably your planet is one of those scheduled for demolition. ….. What do you mean you’ve never been to Alpha Centauri? For heaven’s sake, mankind, it’s only four light-years away, you know. I’m sorry, but if you can’t be bothered to take an interest in local affairs that’s your own lookout. Energize the demolition beams.”

— The Hitchhiker’s Guide to the Galaxy by Douglas Adams.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...