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Filesharing teen gets damages reduced in ignorance claim

Too young to understand, court rules

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A 16-year-old girl has successfully argued that she was too young to understand that her copyright-infringing downloading of music was unlawful. A US court said she will only have to pay $200 per song downloaded instead of the $750 demanded in the case.

A number of record labels including Maverick, Universal, Sony BMG and Warner, sued Steve Harper over music downloaded and shared using KaZaA software. It transpired that it was his daughter Whitney that had used the software and he was replaced by her in the suit.

Harper was 16 at the time of the copyright infringements and her lawyer argued in court that a person her age could not understand the illegality of her acts and could therefore not be capable of intentionally infringing the copyright in the music.

Harper told the court in a statement that she had had "no knowledge or understanding of file trading, online distribution networks or copyright infringement".

Judge Xavier Rodriguez said that it was crucial that the KaZaA software had not told Harper that there was anything illegal about her actions.

"Defendant stated that she had 'no reason to doubt' that her actions were '100 per cent free and 100 per cent legal' and that she believed programs like KaZaA 'to be similar to online radio stations,'" he said in his ruling (pdf).

"The damages provision of the Copyright Act provides that a plaintiff may elect to seek minimum damages of $750 per work," said the ruling. "However, it also provides that 'where the infringer … was not aware and had no reason to believe that his or 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'."

Previous cases had found that a defence of innocent infringement was not available for records where a copyright sign is visible on the packaging. No such signs appear on digital downloads using software such as KaZaA, though.

"In her affidavit and in her deposition, [Harper] claimed that she believed using KaZaA and similar products to be akin to listening to radio over the internet and did not know that the recordings were being either downloaded or distributed," said the ruling.

Rodriguez has said that Harper should pay $200 per song rather than the requested $750 per song, which would result in total damages of $7,400. If the parties cannot agree on that sum then he said that he would hold a trial on the sum of damages that should be paid.

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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