Downloading-case loser unsure how she'll pay
By Guillermo Contreras
: December 4, 2010
A San Antonio woman whose music downloading case was the first to reach the U.S. Supreme Court says she doesn't know how she'll pay $27,750 she now owes five music companies.
The Supreme Court last week rejected a request from Whitney Harper to hear her appeal of a lower court ruling that found she owes $750 for each of the 37 songs she downloaded when she was a teenager at Alamo Heights High School.
The music companies haven't officially billed her, and she said she hopes that doesn't come.
“As of right now, I don't have a lot of options” to pay, Harper, now 23, told the San Antonio Express-News.
She describes her five-year legal battle with the music industry as a “matter of principle.”
Harper graduated this year from Texas Tech University with a degree in public relations and now works in marketing for a local law firm. But she said she has no funds to pay, and could face bankruptcy.
Harper said she downloaded the music when she was 14 to 16 years old from file sharing sites, including Kazaa. She said the sites stated in bold that accessing the music was “100% FREE” and “100% LEGAL.” She argued that she didn't know she was also sharing the music and infringing on the music industry's copyrights.
In 2007, five companies sued her father after investigators traced the downloading to a computer at his San Antonio home. The companies changed the suit to target her when she turned 18, records show.
She's among the 30,000 people who were sued by the Recording Industry Association of America over sharing of copyrighted music online.
In 2008, U.S. District Judge Xavier Rodriguez found she infringed, but said it should be left to a jury to decide whether the infringement was “innocent.”
If a person is found to be innocent, the infringement results in $200 per song. If not, it goes up to $750 per song.
But the case didn't go to trial. She appealed to the 5th U.S. Circuit Court of Appeals. That court sided with the music companies, and it determined she didn't meet the innocent infringement defense.
The court ruled that notices on CDs gave her and others ample warning of copyrights, even if she downloaded from the Internet. The court said she owed $750 per song.
She appealed again in May. Over Justice Samuel Alito's dissent, the Supreme Court opted not to take the case, letting the 5th Circuit ruling stand.
Harper said she believes she would have fared better if she had a trial.
“When you see the RIAA in there and how young I was, that I really didn't know what I was doing, I think I would have had a different outcome,” Harper said.
But she also knows that could be detrimental.
A Minnesota mother, Jammie Thomas-Rasset went through three trials for downloading and sharing 24 songs online. Her first trial resulted in a $220,000 verdict against her, though the judge threw that out, according to news reports. She was hit for $1.92 million at a second trial, and the third one in November resulted in a $1.5 million verdict, or $62,500 apiece.
“For sure there would be a risk, but it's just the optimism in me,” Harper said. “I think they would have seen that I was just a child.”
In his dissent, Alito said the law appeared to be behind the times with today's technology. Harper agrees.
“I think the copyright law is really outdated,” Harper added. “They need to update it for the digital age. If they were to rewrite it, it would protect me and the RIAA against things like this.”