Commentary

Who's An 'Innocent Infringer' Of Copyright? Supreme Court May Decide

The U.S. Supreme Court indicated that it's interested in deciding when people accused of copyright infringement online can claim that they are "innocent infringers," subject to as little as $200 in liability.

In an order quietly issued last week, the Supreme Court directed the Recording Industry Association of America to respond to a petition for review filed by Whitney Harper, who shared downloaded 37 tracks from Kazaaa when she was in high school. That order doesn't mean that the Supreme Court will definitely take the case, but increases the odds, according to The Blog of the Legal Times.

U.S. District Court Judge Xavier Rodriguez in San Antonio earlier ruled that Harper was an "innocent infringer" and ordered her to pay $200 per track -- the statutory minimum for innocent infringers. The minimum for people who aren't "innocent infringers" is $750 per track.

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The 5th Circuit Court of Appeals reversed Rodriguez's decision because the copyright statute says that "innocent infringer" status is only available to people without access to published phonorecords -- in this case compact discs -- that contain copyright notices.

Harper then asked the Supreme Court to take up the case, arguing that the copyright statute's wording about notices on phonorecords should not apply in her case because she didn't infringe by copying a CD.

Should the Supreme Court accept the case and ultimately rule in Harper's favor, the decision could change the dynamics of copyright litigation going on today.

Consider the copyright troll Righthaven -- a start-up that has filed more than 100 lawsuits against Web users ranging from Senate candidate Sharron Angle to reform groups to an unemployed woman who blogs about cats.It costs Righthaven $350 to file a lawsuit, so if an innocent infringer defense is available to defendants in those cases, even a victory by Righthaven could cost the company money.

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