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Justices pass on chance to examine illegal music downloads

By Bill Mears, CNN Supreme Court Producer
  • A Texas woman is being sued by the recording industry for downloading songs
  • The Recording Industry Association of America is seeking $27,500
  • Other cases have been settled for a few thousand dollars

Washington (CNN) -- Whitney Harper likes music and enjoyed sharing it with her teen-age friends. But that put her in deep legal trouble, and she has become the face of unresolved legal issue over so-called "innocent infringers."

The Supreme Monday passed up a chance to review the appeal of the young Texas woman, who was targeted by the recording industry with illegally downloading music on her home computer when she was a high schooler.

It was the first music-downloading copyright appeal to go trial and subsequently reach the high court, after the industry sought to stifle what they say is rampant illegal file-sharing, costing companies and artists billions of dollars.

Court records show perhaps 40,000 people have been sued or threatened with legal action for taking the music off their shared peer-to-peer IP networks.

The justices' refusal Monday to intervene is a legal setback for Harper, and leaves thousands of music downloaders like her liable for thousands of dollars each in damages.

At issue was whether the "inadvertent innocent infringer" defense to copyright violations should be eliminated for all internet music downloading. The justices were being asked to establish some bright line over the proof necessary to demonstrate a premeditated violation of federal law.

Harper was between 14 and 16 when she began downloading and sharing popular music with her friends from her San Antonio home. The Recording Industry Association of America, the music companies' trade group, had for years monitored computer users like Harper as part of an ongoing campaign to target illegal downloads. They randomly selected her IP address and traced her Internet use, discovering Harper had used a peer-to-peer network program to share 544 digital audio files. The industry sued the girl and her family in federal court for 37 copyrighted songs she had downloaded using the file-sharing program Kazaa.

Now 22, Harper is a Texas college student. At her trial in federal court, Harper admitted the downloads but said she was too young to understand what she was doing was against the law. Her lawyer, Kiwi Camara, told the high court in a brief that Harper "did not understand the nature of file-sharing networks. She believed that listening to music using a file-sharing network was akin to listening to a non-infringing Internet radio station." Their defense is that "the music files that she copied bore no statutory copyright notice," unlike the printed notices found on CDs and other retail music purchases.

Those labeled "innocent" infringers may be liable under federal law for up to $200 in damages per track. A non-innocent infringer faces up to $150,000 in fines per track. Most of the cases brought by Recording Industry Association of America have been settled in court for a few thousand dollars.

In Harper's case the recording industry sought $750 for each of the 37 downloads, or $27,500. A federal appeals court agreed, saying Harper "cannot rely on her purported legal naivety," since the CD versions of the music contained adequate copyright warnings. Those judges concluded copyright notice anywhere trumps the innocent infringer defense. Camara argued other courts have interpreted federal law differently, saying that a copyright notice has to be on the specific copy the infringer used. Harper had claimed she never saw any such labels on her file-sharing network.

In its brief with the high court, the Recording Industry Association of America says downloading perfect, digital copies of their artistic creations "has wreaked financial havoc in the recording industry."

Justice Samuel Alito noted he would have accepted the Harper appeal for review, saying there is a "strong argument" that federal law protections do not apply to downloading of digital music files.

Alito said that while lower courts so far have been unanimous in ruling for the music industry, the issue is one the high court should address now, given the evolving nature of conflicts over technology and commerce.

The justices had earlier addressed the issue of intellectual property in the cyber age. In a unanimous 2005 ruling, the court said in the "Grokster" case that software companies can be held responsible for misuse of their file-sharing software, concluding "there is evidence of infringement on a gigantic scale."

That case involved liability of peer-to-peer networks that sell the software. The current case brings the separate dispute over holding individual users accountable.