Judge: RIAA damages too high in innocent infringement case

By Eric Bangeman

A judge has ruled that a teenage girl who admitted to downloading music over KaZaA will only have to pay damages of $200 per song, instead of the $750-30,000 normally allowed under the Copyright Act (and the $750 per song sought by the RIAA). The reason for the cap comes from Whitney Harper's "innocent infringement" defense, in which she argues that she did not knowingly infringe the record labels' copyright.

Harper's father was sued by the labels in January 2007, but after it was discovered that his then-16-year-old daughter Whitney was responsible for the KaZaA share discovered by MediaSentry back in June 2004, he was dropped from the lawsuit and his daughter substituted. Whitney admitted to using KaZaA as well as downloading and sharing music over the P2P network, but said she didn't realize what she was doing was wrong. Her technological illiteracy and age made her incapable of intentionally infringing the record labels' copyrights, she argued.

In his ruling, Judge Xavier Rodriguez quotes an affidavit submitted by Harper saying that she had "no knowledge or understanding of file trading, online distribution networks or copyright infringement." Since KaZaA didn't expressly inform her that the music she found on the network was "stolen or abused copyrighted material," she had no way of knowing that what she did was wrong. "Defendant had 'no reason to doubt' that her actions were '100% free and 100% legal' and that she believed programs like KaZaA 'to be similar to online radio stations,'" wrote Judge Rodriguez.

The RIAA countered the argument by pointing out the copyright notices included on retail copies of CDs should have been enough to make Harper realize that what she was doing was wrong. Not so, said the Judge.

Even though Harper may not have realized it, the judge ruled that she did indeed infringe on the RIAA's copyrights, thus granting the RIAA's motion for summary judgment on 37 of the over 540 songs in Harper's KaZaA share (six that were downloaded by MediaSentry, 16 listed in MediaSentry's screen shots, and 15 found in a forensic examination of the family PC's hard drive). But damages are capped at just $200 per song—not the at least $750 sought by the RIAA—due to her innocent infringement.

"Although proper notice was provided on the cover of each of the Recordings, a question remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting," wrote the judge. "In this case, there were no compact discs with warnings," reads the judge's order. "Plaintiffs have not introduced any evidence to contradict that Defendant did not have an understanding of the nature of file-sharing programs and copyright sophisticated enough to have reason to know that her actions infringed Plaintiffs' copyrights. Therefore, the Court finds that a fact issue exists as to whether Defendant was an innocent infringer."

If the parties can't agree to the damage award of $200 per song (for a total of $7,400), the case will move to trial over the amount of damages.

With the possibility of being forced to pay up to $30,000 in damages for each song (Jammie Thomas was ordered to pay $9,250 per song after being found liable for infringement; that case looks headed for a retrial), $200 per song doesn't sound all that bad. But had the Harpers signed off on the RIAA's prelitigation settlement offer, they may have been able to write a check for $4,000 and be done with it all.

That said, had Judge Rodriguez applied the law differently, it is possible that the Harpers would only have to pay damages for the six songs actually downloaded (and possibly not even those). The judge either isn't familiar with or isn't convinced by recent rulings that merely making a file available over a P2P network is not enough to demonstrate copyright infringement. Instead he found that the presence of the tracks in a KaZaA share was enough to infringe the labels' distribution and reproduction rights.

Original here