• by Wendy Davis  @wendyndavis, August 20, 2010

A coalition of law professors and other attorneys are asking the U.S. Supreme Court to consider whether people who share music over peer-to-peer networks can be considered "innocent infringers."

If the Supreme Court ultimately agrees with that argument, file-sharers could still be liable for copyright infringement, but with damages of only $200 per infringement rather than the current minimum of $750.

"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," Harvard law professor Charles Nesson writes in a friend-of-the-court brief. Joining Nesson in the brief were nine other copyright lawyers and law professors.

Nesson and the other attorneys are urging the court to consider an appeal by Whitney Harper, who downloaded 37 tracks on Kazaa when she was a high school student. 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 minimum for so-called innocent infringers. But earlier this year, the 5th Circuit Court of Appeals reversed that decision.

The appeals court ruled that Harper couldn't be an innocent infringer because the copyright law 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 has asked the Supreme Court to consider her appeal of that ruling.

Nesson's friend-of-the-court brief argues that the 5th Circuit's conclusion is "absurd" because the copies downloaded by Harper didn't contain a copyright notice.

"When a downloader makes a subjectively earnest and objectively reasonable mistake of fact about copyright status, genuinely lacking the intent to infringe a copyright, innocent infringement ought to be available to mitigate damages," Nesson argues.

"This case has broader implications than just an unfair result against one young woman," he adds. "The total elimination of innocent infringement as a viable issue in infringement actions against individual, noncommercial infringers is the last step toward imposing strict liability on file sharers."

"Strict liability" means that defendants are liable regardless of their intent to violate the law.

But Harper could have an uphill battle at this point. In a separate case, another appellate court, the 7th Circuit Court of Appeals, also ruled that peer-to-peer file-sharers were not entitled to the innocent infringer defense.

Given that two different appeals courts have reached the same conclusion, the Supreme Court is not likely to get involved, says Santa Clara University law professor Eric Goldman.

Nonetheless, Goldman says he supports the "normative implications" of Nesson's brief. "The fact that copyright law is a strict liability tort leads to a variety of undesirable consequences," he says. "A robust innocent infringement defense would alleviate some of those consequences."

Nesson led the team that represented file-sharer Joel Tenenbaum, who was sued by the Recording Industry Association of America. A jury found Tenenbaum liable and ordered him to pay $675,000 for sharing 30 tracks, but U.S. District Court Judge Nancy Gertner in Boston later slashed the damages to $67,500, ruling that the jury's award was unconstitutional.

Both the RIAA and Tenenbaum are appealing that ruling. Tenenbaum argues that damages are still unconstitutionally high, while the RIAA argues that the jury verdict should stand.