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Supreme Court May Rock & Roll On Illegal Music Download Case

Kazaa.jpgOver the last several years, the 4 big record labels (Sony BMG, Universal Music, Warner Music and EMI) have aggressively pursued file sharing companies like KaZaA and Grokster as well as those who downloaded the music for their personal use.

The US Supreme Court recently took the first step toward hearing one of the more than 40,000 music download cases that have been filed by the music industry companies against individuals who downloaded music from the internet.

In each of these law suits, the music companies allege that the person downloading the music violated US copyright laws, which imposes shockingly strong penalties, up to $150,000 per violation. In these music download cases, many young people downloaded hundreds of songs, and the music companies contend that each downloaded song constitutes a violation.

In the case of Harper v. Maverick Recording, the Supreme Court recently requested that a record company file a brief in response to a petition filed on behalf of Whitney Harper, a high school cheerleader who unknowingly violated copyright laws by downloading songs from KaZaA.Whitney Harper.jpg

Ms. Harper’s attorneys are asking the High Court to view downloaders as “innocent infringers” so that they would be subject to much smaller fines than the ridiculous $10,000 per song usually sought by the music companies. Copyright law subjects “innocent infringers” to fines of only $200 per infringement. But this is still a stiff price to pay if you have downloaded lots of songs.

Given the extremely small percentage of cases actually heard by the US Supreme Court these days, if the Court does decide to hold oral arguments in the Harper case, it would be a significant event that could well result in a landmark ruling. One empirical study on the activities of the Supreme Court says that the chances of the Court hearing a case where it has requested such a response is 37% greater than in those where no response is sought.

Having represented a client in one of these download cases, this author is surprised that an individual downloader has the means or the desire to pursue one of these cases all the way to the US Supreme Court. I suspect that Ms. Harper’s attorneys are working on a pro bono (no attorney’s fee) basis, just as I did for the young high school student I represented about 8 years ago.

The major challenge that my client faced was that the music company had computer records showing the details of what she admittedly had done all the way down to the date and time of the download and the name of the songs. She really had no defense to the infringement charge except ignorance. She had downloaded about 3000 songs and was facing a potential judgment that could ruin her financially for the rest of her life. For her, the risk was too great to go forward with litigation, and she elected to settle for a small percentage of what the music companies were seeking. So, kudos to Ms. Harper. May she succeed where others have failed.

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