Posted on 03/04/2010 7:59:16 AM PST by Responsibility2nd
Of all the songs Whitney Harper of San Antonio downloaded from online file-sharing networks, the one that could best sum up the college student's situation now is Hanson's “Save Me.”
A federal appeals court that covers Texas has ruled the 22-year-old must pay a total of $27,750 to five music companies for 37 copyrighted songs she accessed through Kazaa and similar sites when she was a teenager.
Last week's opinion by a three-judge panel of the 5th U.S. Circuit Court of Appeals overturned a lower ruling that awarded the five recording companies $200 for each of the songs. The appeals court said Harper instead must pay $750 for each song.
Harper was unavailable for comment. Her lawyer, Donald Scott Mackenzie of Dallas, said the total with interest could well exceed $40,000 and force Harper to file for bankruptcy.
Mackenzie said other lawyers have shown interest in the case, and it could head up the appellate ladder, even to the U.S. Supreme Court.
He said Harper is about to graduate from Texas Tech with a degree in business communications, and the case has left a cloud over her.
“She's already been denied jobs because of this federal case,” Mackenzie said. “This has already impacted her.”
Harper, who was on the cheerleading squad at Alamo Heights High, is one of the few to challenge the recording industry, which sues people who download copyrighted music.
Many of the defendants are college students or teens who end up settling or lose by default because they have no money to challenge the recording industry's deep pockets, according to lawyers familiar with the issue.
The Recording Industry Association of America, the music industry's lobby, said it and its members had no comment.
Mackenzie said this case should make parents aware of what their kids are looking at on the Internet because it could end up costing them.
The companies initially sued Harper's father but amended the suit after learning she downloaded the music on a family computer.
“The record industry taught her a lesson,” Mackenzie said sarcastically. “They made an example of her.
“Her family and her are adamant that this is a ridiculous outrage.”
Harper was 16 years old, or possibly even 14, when she accessed the songs, Mackenzie said.
At the time, Harper said in a court affidavit, she'd never received computer training, and her skills were limited to e-mail and Web browsing. Harper said she was directed by friends or online advertising to sites such as Kazaa.
“I visited those sites and from viewing the Web pages of those sites, I understood Kazaa and similar products to be legitimate music sites that allowed a person to listen to music on their computer,” Harper's affidavit said. “Many of these sites advertised that this was 100 percent free and 100 percent legal which I had no reason to doubt.”
In 2008, U.S. District Judge Xavier Rodriguez found Harper infringed, but said it was up to a jury to decide whether the act was “innocent” — whether she was truly aware that her acts constituted copyright infringement. If the infringement is found to be innocent, that can reduce the amount per song from $750 to $200.
Rather than put the matter to a jury, the plaintiffs — Maverick Recording Co.; UMG Recordings Inc.; Arista Records LLC; Warner Bros. Records Inc.; and Sony BMG Music Entertainment — opted to accept a ruling stating they could collect $200 for each of the 37 songs.
But, if she appealed, they reserved the right to ask for the full $750 per song, records show.
Harper appealed, and the companies sought the full $750. Harper argued on appeal, among other things, that she was too young and naïve to know that what she was doing was illegal.
The appeals panel dismissed her arguments, including the “innocent infringement” defense, saying, in part, that copyright infringement warnings existed when the music was first recorded, such as onto CD.
Please don't read into my statement too much, I'm not justify downloading/sharing music in this manner but rather stating an observation of the RIAA’s strategy.
That was the problem with FILE SHARING, once it was ruled illegal, all they had to do was make a bust with one computer, then start following the IP address of all the file downloads.
I wonder who paid for the boob job?!
Not guilty!
oh yeah post that and suddenly half of FR votes not guilty :)
How can anyone believe (RIAA aside—they don’t believe) that $200 or $700 per song is reasonable?
The iTunes/Amazon MP3 cost for these songs would be $1 (okay, $0.99; I’m rounding up the penny). If we assume the worth as a fraction of a CD and estimate a 12 track CD priced at $15, we get $1.25 a song.
Let’s take the higher number of $1.25/song as the worth. The article says that she downloaded 37 songs. If you triple the worth of the song, for punitive damages (and, personally, I think tripling the damage value of anything for punitive damages sounds kind of ridiculous), you get a grand total of: $138.75.
From $140 to $27,750 (the bump up to $40k was with interest). I do not have a problem with copyright per se, but this is certifiably insane.
Judges should body-slam RIAA lawyers at every opportunity, forcing them to actually PROVE damages, for example, rather than theorize and estimate. At the worst, proven, actual damages should be limited to 3x market value (Or 3x about $1 per song), and punitive damages should be similar to shoplifting fines.
She should be looking at $1000 - $2000 in damage, tops.
Courts should stop being a perverse revenue stream for the RIAA.
Not guilty!
I disagree if the fine was $25 per song most people would think twice about illegally downloading a $1.00 song. $25.00 per song can add up very quickly.
A provision requiring the downloader to pay court costs and legal fees, if they unsucessfully contest the $25.00 a song fine would give the copyright holders incentive to pursue claims. Perhaps it should even be $50.00, but $750.00 is unconscienable, especailly when we are dealing with a minor, IMO.
I don’t advocate a system favoring the infringer. But the punishment has to fit the crime. Generally speaking, in civil cases, plaintiffs can only recover actual damages, plus court costs. The recording industry has been given special privilges to receive judgments that are 75,000% higher than their actual damages,(no doubt through some graft in the form of campaign contributions to congress) and IMHO this is wrong.
Agreed.
After all, one could create the MP3 himself from any physical medium.
Well, I must say it’s time to revoke the offer of $7400 to settle. How does $74 sound? If that is too much of a fine, then she can perform the appropriate community service.
Sorry RIAA you lose on FR! When a picture is posted in a thread then all morals and laws are thrown out the window.
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I wish mathematicians had an RIAA. We’d be filthy rich.
The point is that the penalty should fit the crime.
Cutting a thief's hand off discourages theft, but I don't think anyone here would argue that as a penalty it is too severe--because it does not fit the crime. Likewise, being penalized ~$40k for "stealing" 37 songs cannot be said to fit the crime.
Not guilty!!
1) Record labels pay to promote the music of their artists, hoping to increase the airplay of the songs on the radio, which is free. (See the "Payola" scandal of the 50's)
2) Recording music off the radio for your personal use is legal, and always has been, AFAIK.
3) Radio is a 115-year-old technology for mass dissemination of information.
4) The Internet is fundamentally the modern, superior equivalent of radio: a technology for the mass dissemination of information.
So, the recording industry, which pays for -- sometimes illegally -- its product to be disseminated to free mass market broadcast using one technology now sues its own customers for obtaining or sharing the very same product through a modern free mass market broadcast.
The activity is the same; only the technology is different. But one is promoted to the point of bribery, while the other is brutally punished.
No you wouldn't. First, your label would screw you with bogus accounting that made it look like your stuff never made any money, and probably blame the math pirates besides.
Then the MIAA would sue any pirates, making all these tearful professions on camera about how concerned they were about YOU getting ripped off. Then after they win in court and bankrupt the math pirate, the MIAA keeps the money and you get bupkis.
civil judgments are.
This is why these cases are pointless. A judgment of a “bazillion dollars” is meaningless. If anything this case is just as deserving of tort reform as any other nusance suit.
Dude, have a sense of humor!
Come on, I was saying all of that in jest with a sarcasm tag thrown in for good measure, LOL!
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