'Innocent Infringer' copyright defense for downloaders goes to U.S. Supreme Court

The case of Whitney Harper, the first defendant in a peer-to-peer copyright infringement suit to use the "innocent infringer" defense, was submitted to the U.S. Supreme Court in the form of an Amicus brief Thursday by a group of "Cyberprofessors" led by digital copyright reformer Professor Charles Nesson.

Nesson's group, calls this the "next generation of P2P lawsuits."

In 2004, when Harper was only sixteen years old, copyright monitoring company MediaSentry found that she was sharing 544 copyrighted songs on peer-to-peer network KaZaA. Harper's father was subsequently taken to court in the Western District of Texas by Warner Brothers, Sony BMG, Maverick Recording Co., UMG Recordings, and Arista Records for violation of the Copyright Act of 1976, requesting minimum statutory damages of $750 for each song.

Harper admitted to using KaZaA, but said that she had no reason to believe she was breaking any laws, and that she believed KaZaA was "similar to online radio stations." The district court allowed this "innocent infringer" defense, but it was overturned in the 5th Circuit Court of Appeals.

In their appeal, the labels argued that copyright warnings on physical CDs should serve as enough of a warning against P2P downloading, saying "one need only have access to some CD and see that the recording is subject to copyright."

Even though Harper may have never seen the CDs, their existence was enough of a safeguard for the Appellate court to reverse the District Court's "innocent infringer" ruling.

"Copyright notices on album covers in record stores are no substitute. To a person viewing an Internet file in cyberspace who genuinely does not know or have reason to know that file is copyrighted, they provide neither actual notice nor reasonable notice of copyright. They provide no basis for disregarding Harper's state of mind in downloading digital files," Thursday's brief said. "Not all music is copyrighted, and from the viewpoint of the music downloader on the Internet, copyright-restricted files often appear to be no different from noncopyrighted files."

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