U.S. Supreme Court Requests Response in Music Downloading Case

by Janette Spencer-Davis, Legal Editor, CCH Copyright Law Reports   

In a move indicating its interest in a music downloading case, the U.S. Supreme Court asked a record company to respond to a petition for certiorari asking the Court to decide whether "the inadvertent innocent infringer defense to copyright infringement should be eliminated for all Internet music downloading." The record company, which had initially waived its right to respond, filed a brief in opposition on October 15, 2010.

The case, Maverick Recording Company v. Harper (5thCir 2010), 2010 Copyright Law Decisions ¶29,896, is the first to reach the high court from the more than 40,000 legal actions taken in recent years to combat illegal downloads. The U.S. Court of Appeals for the Fifth Circuit ruled that an Internet user infringed the record company's exclusive rights when she used file-sharing programs to download and distribute audio files of copyrighted recordings. It also ruled that the "innocent infringer" defense was unavailable to the user.

When the Internet user was sued, she was a high school cheerleader. She claimed she had no idea at the time that downloading files from KaZaA was illegal, likening what she had done to listening to an Internet radio station. In the petition, attorneys for the user assert that downloaders should be viewed as "innocent infringers" subject to smaller fines than record companies sought. They further assert that notification on a CD label should not determine whether an infringement is innocent or not, because the defendant "may never have had access to a CD corresponding to the music files that she listened to." The attorney for the record company declined to comment.

The petition for review is Harper v. Maverick Recording Co., Docket No. 10-94, filed May 26, 2010.