• by Wendy Davis  @wendyndavis, May 27, 2010

A peer-to-peer user who downloaded 37 tracks on Kazaa as a teen is asking the U.S. Supreme Court to rule that she can be considered an "innocent infringer."

In papers filed this week, Whitney Harper argues that she "believed that listening to music using a file-sharing network was akin to listening to a noninfringing Internet radio station" when she downloaded the tracks at age 16.

U.S. District Court Judge Xavier Rodriguez in San Antonio, Texas ruled earlier that Harper was an "innocent infringer" and only need pay damages of $200 per track. The copyright statute typically provides for damages ranging from $750 to $150,000 per infringement, but the law slices the minimum to $200 for so-called innocent infringers.

But earlier this year, the 5th Circuit Court of Appeals reversed that decision. The appellate court ruled that Harper couldn't be an innocent infringer because the copyright statute says that status is only available to defendants who have no access to published phonorecords -- in this case compact discs -- that contain copyright notices.

Harper now is asking the Supreme Court to take up the case and reverse the 5th Circuit's ruling. She argues that the statute's wording about notices on phonorecords should not apply in her case because she didn't infringe by copying a CD. "She infringed by copying and distributing music files that bore no such notice," she argues.

Harper also argues that the question "is of unusual national importance because of the unprecedented litigation campaign that the RIAA has been waging against those who listen to music on file-sharing networks."

The RIAA sued or threatened to sue tens of thousands of alleged file-sharers between 2003 and December of 2008. At that time, the organization shifted strategy and said it would no longer file new suits against most individual, noncommercial individuals who share tracks.