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. icon
    average_joe (profile), 22 Sep 2010 @ 8:54am

    I wouldn't get too excited about this case. My prediction is that if the Court does take it they will ultimately affirm the Fifth Circuit, thereby taking away the innocent infringer defense from online infringers nationwide.

    Why Harper appealed the District Court decision I'll never understand. The District Court put her on the hook for $200 per track, and on appeal the Fifth Circuit bumped it up to $750 per track. What did she think she was going to get on appeal?

    Now she's going to the Supreme Court, or at least she's trying to go there. Is she trying to ruin it for everyone else? Seems like it to me.

    Here's something else I don't get. Harper's attorney is wunderkind Kiwi Camara. His theory on why the Court should take the case is because he claims there is a split among the circuit courts.

    He claims that this case in the Fifth Circuit and another one in the Seventh Circuit are at odds with a case in the Second Circuit which he cites in his petition as D.C. Comics Inc. v. Mini Gift Shop, 913 F.2d 29 (2d Cir. 1990). Well, his cite is wrong and it's really 912 F.2d 29, but that's not the problem.

    He states: "On the other hand, the Second Circuit in D.C. Comics held that, where “there were no copyright notices on the infringing good and * * * a layman would not be able to distinguish between licensed and unlicensed goods,” a “defendants’ infringement was innocent.”

    But in that case, the defendants had their hands on a physical copy of the work. That's not the case here. Here, the work being copied is a digital work on a file-sharing network. I don't think the two are comparable, and Camara's claim that there's a circuit split is just wrong.

    Camara is the guy who got Thomas-Rasset on the hook for 1.92 million dollars in her retrial. It wouldn't surprise me if he botched this one as well.

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