Supreme Court Apparently Interested In 'Innocent Infringer' RIAA Case

from the this-could-get-interesting dept

We've been covering the Whitney Harper "innocent infringement" case for a while now. Harper, as a teenager, was sued in one of the tens of thousands of RIAA lawsuits, for sharing some music via Limewire. US copyright law has a provision for "innocent infringement," where it lets you lower the statutory award amounts from a minimum of $750 down to $200. Harper made the case that she was unaware that sharing music via Limewire was unauthorized, as it seemed just like an online radio to her. While the district court sided with Harper in saying that it was innocent infringement, the record labels appealed and the appeals court reversed, claiming that because the CD cases of the music in question had proper copyright notices, Harper was properly notified... even though she never saw those cases.

Harper appealed to the Supreme Court earlier this year. At the time, I noted that while this is an important issue, I doubted the Supreme Court would hear the case. However, indicating a fair bit of interest, the Court has asked the RIAA to respond to Harper's appeal -- which generally indicates serious interest in potentially taking the case. According to Wired, the court normally agrees to hear less than 1% of appeals, but if it requests more info on a petition, then it tends to take 34% of those cases. Still long odds, but a lot more likely...

Filed Under: copyright, innocent infringement, supreme court, whitney harper

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  1. identicon
    Anonymous Coward, 23 Sep 2010 @ 6:39am

    Re: Re: Re: Re: Re:

    It is instructive to read, in order, the original DC opinion, a modified opinion by the DC, and then the 5th Circuit opinion.

    It explains what the plaintiff agreed to do concerning the innocent infringer defense and the $200/infringement award, the plaintiff's reservation to cross-appeal (and why) in the even the defendant decided to appeal the innocent infringer defense, the plaintiff's attempt to insert an constitutionality claim at the DC level and why it was rejected by the 5th Circuit, the cursory nature of the defendant;s cert petition, and, with a bit of digging using Google to search "whitney harper supreme court amicus" to find a brief in support of the defendant's petition filed by Mr. Nesson, various law professors, and Ray Beckerman that reads almost in its entirety as an irrelevant trip down history lane dating back centuries.

    Importantly, a DC opinion carries no precedential weight, whereas an appellate court opinion does serve as precedent within the Fifth Circuit.

    If the appellant, the cert petitioner, was able by some stroke of incredible "luck" able to have cert granted, the limited nature of the issue that is the subject of the cert petition would at the very best, in the event that the Fifth Circuit was overturned, result in the case being returned to the Fifth Circuit for either another crack at its decision or for remand back to the DC.

    In any event, if the case was remanded and the defendant able to successfully assert and prove the defense, the very best that could happen is that the court would issue an order that would be exactly the same as the original DC decision.

    Perhaps defendant's counsel is working some unknown angle, but as noted earlier it seems almost certain that counsel is scrambling to try and have the case returned to the DC so that the alleged unconstitutionality of statutory damages can be pressed forward one more time in the hope that it would be entertained by the court, have an opinion rendered thereon, and then reappealed to the Firth Circuit with the hope that it would either be granted, in which case the label would appeal, or denied, in which case the defendant would appeal via cert in both instances to the Supreme Court.

    In summary, this is not about the defendant being an innocent infringer. It is yet another avenue trying to fling the constitutionality of statutory damages against a wall in the hope that it may stick.

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