Fearing reversal, RIAA opts for the money in Harper case

Ars Technica reports that the RIAA has changed course in the copyright infringement case of a teenage girl who downloaded 37 songs over Kazaa.The judge in Maverick v.

Ars Technica reports that the RIAA has changed course in the copyright infringement case of a teenage girl who downloaded 37 songs over Kazaa.

The judge in Maverick v. Harper had held that Whitney Harper, 16 at the time of her offenses, was an "innocent infringer" and awarded a mere $200 per song, far less than the statutory minimum of $750 per song.

The RIAA had been fighting this, pressing for a jury trial on the damages issue, but now the RIAA wants judgment for $7,400 while Harper is pressing for a trial. It seems the fortunes of the parties have really shifted.

Here's why: The judge's finding for the RIAA was based on the "making available" theory – the idea that having files in Kazaa's shared folder (which the software does by default but teenagers presumably do not realize this) is sufficient grounds to find that someone distributed copyright material.

This theory has been thoroughly trashed in subsequent court decisions, most notably in Capitol v. Thomas, where Judge Michael Davis dismissed a jury verdict in favor of the RIAA because it was "manifest error" to instruct the jury that making available constituted infringement. Judge Davis ordered a new trial.

Now the RIAA is jumping mad over Harper's attempts to have the judge reconsider the "making available" issue, calling her efforts "vexatious." Ars cites Harper's motion for the trial:

[I]in this case we have this single case, one of tens of thousands of lawsuits filed as a part of a massive campaign to preserve a business model currently dominant in the music. This Court is aware that this case is not about the actions of Whitney Harper, a young lady who was 14 to 16 years old at the time of alleged infringement. It is instead about an 18 billion dollar industry that was once on a rising trend, now facing its comeuppance by rapidly evolving technology and eroding morals.

If there is a trial, it will be in mid-November.

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