Cheerleaders apparently not always have their way. This week the case of then teenaged cheerleader Whitney Harper (photo) appears before the U.S. Supreme Court. Starting point for the case is that several record companies had discovered that Harper illegally downloaded 37 songs through a P2P network. The record companies are now demanding compensation from Harper. 

Harper claims that the statutory damages for copyright infringement per song should be reduced from $ 750 to $ 200 because she is an "innocent infringer". She thought P2P was like listening to the radio for free. 

The court initially accepted this claim. U.S. copyright law allows that, "where the infringer sustains the burden of proving... that [she] was not aware and had no reason to believe that... her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200." 

However on appeal the verdict was reversed, because the Court found that Harper did not meet the legal conditions for an 'innocent infringement’. The judge noted that when a copyright notice "appears on the published... phonorecords to which a defendant... had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages." Although Harper stated she did not obtain the tracks from a CD (which in a P2P case seems quite obvious), the judge ruled that she couldn't claim innocence because CDs have printed copyright notices. 

Acclaimed Harvard Professor Charles Nesson and lawyer/blogger Ray Beckerman are now speaking out on behalf of Harper. The American copyright lawyers ask the Supreme Court to accept the 'innocent infringer' defense, because its conditions are written in the analog era and should be translated into the spirit of the current digital era. "The absurd conclusion is reached whereby notice in the record stores, never seen by the infringer, is sufficient to put a digital use, in his or her home, on notice of copyright liability," they say.

Read the amicus brief here. 

Source: ArsTechnica