• by Wendy Davis , Staff Writer @wendyndavis, March 1, 2010

Siding with the record labels, the 5th Circuit Court of Appeals court has upped the damages that a college student must pay for sharing 37 music tracks on Limewire from $7,400 to $27,750.

A trial judge, Xavier Rodriguez in San Antonio, Texas, had earlier ruled that the student, Whitney Harper, potentially was an "innocent infringer" when she shared the tracks as a teenage high school student. Rodriguez imposed minimum damages of $200 per track.

But the 5th Circuit found that she wasn't an innocent infringer, because that status is only available to defendants who have no access to published material -- compact discs, in this case -- that contain copyright notices.

The appellate court ruled that Harper's subjective belief about whether or not the files were copyrighted was irrelevant to whether she was an innocent infringer.

The court also rejected Harper's argument that copyright infringement damages set out by the statute (ranging from a minimum of $750 to a maximum of $150,000 per infringement) were unconstitutional -- but on a technicality. The 5th Circuit found that Harper had waived that argument because she didn't flesh it out for the trial judge.

The ruling comes as other courts are struggling to figure out appropriate damages when noncommercial users have been caught sharing files online. Two juries have returned large damage awards against individual file-sharers -- $1.92 million in the case of Jammie Thomas-Rasset and $675,000 against grad student Joel Tenenbaum -- but it's not clear those awards will hold up.

Already, a judge moved to slash the damages in the Thomas-Rasset case to $54,500, but the RIAA rejected the move, setting the stage for a new trial just on damages. (In that case, the RIAA offered to settle with Thomas-Rasset for $25,000 if she would agree to back the RIAA's request that the judge withdraw his ruling slashing the damages; she declined.)

Tenenbaum also challenged the damage award. U.S. District Court Judge Nancy Gertner heard arguments last week, but hasn't yet reached a decision.