Commentary

Appeal Rejected, P2P User On Hook For $28K

The U.S. Supreme Court has decided not to hear the appeal of Whitney Harper, leaving her facing a $27,750 bill for having downloaded 37 tracks from Kazaa when she was 16.

In 2008, a trial judge ruled in San Antonio, Texas that Harper was a so-called "innocent infringer" and ordered her to pay $200 per track -- the minimum for innocent infringers. The statutory floor for those who aren't innocent infringers is $750.

That ruling was reversed by the 5th Circuit Court of Appeals, which ruled that Harper wasn't an innocent infringer because the copyright statute says that only people without access to published phonorecords -- in this case compact discs -- can be considered "innocent." That court also deemed Harper's age and lack of legal knowledge irrelevant to her liability.

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.

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The Supreme Court didn't give a reason for turning down Harper's appeal, but the order issued today shows that the decision wasn't unanimous. Judge Samuel Alito Jr. wrote a three-page dissent explaining why he wanted the court to consider Harper's appeal. He said there was "a strong argument" why the part of the statute dealing with notices on records doesn't apply in cases involving digital downloads, noting that the provision dates to 1988, "well before digital music files became available on the Internet."

"The Fifth Circuit's decision may or may not set out a sensible rule for the post-'phonorecord' age," he wrote. But, he added, the court's interpretation of the statute "is at least questionable."

Regardless, now that the court has decided against taking Harper's appeal, she probably has run out of legal avenues to challenge the ruling. But other, future defendants might find themselves in more fortunate positions, given that today's decision declining to hear the appeal doesn't set the kind of precedent that would make the Fifth Circuit's decision the law of the land.

The situation would be different had the Supreme Court considered the case and then issued an order affirming the Fifth Circuit opinion; that would create a precedent that could leave many other peer-to-peer defendants hard-pressed to argue they were innocent infringers.

Instead, the Supreme Court has left judges in most federal courts remaining free to rule that peer-to-peer downloaders are innocent infringers. And, given Alito's dissent, other judges might be more inclined to do so now, knowing that at least one member of the Supreme Court has indicated that such a finding might be correct.

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