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Song downloads may cost S.A. woman $40,000
San Antonio Express-News ^ | 03/04/2010 | Guillermo Contreras

Posted on 03/04/2010 7:59:16 AM PST by Responsibility2nd

Of all the songs Whitney Harper of San Antonio downloaded from online file-sharing networks, the one that could best sum up the college student's situation now is Hanson's “Save Me.”

A federal appeals court that covers Texas has ruled the 22-year-old must pay a total of $27,750 to five music companies for 37 copyrighted songs she accessed through Kazaa and similar sites when she was a teenager.

Last week's opinion by a three-judge panel of the 5th U.S. Circuit Court of Appeals overturned a lower ruling that awarded the five recording companies $200 for each of the songs. The appeals court said Harper instead must pay $750 for each song.

Harper was unavailable for comment. Her lawyer, Donald Scott Mackenzie of Dallas, said the total with interest could well exceed $40,000 and force Harper to file for bankruptcy.

Mackenzie said other lawyers have shown interest in the case, and it could head up the appellate ladder, even to the U.S. Supreme Court.

He said Harper is about to graduate from Texas Tech with a degree in business communications, and the case has left a cloud over her.

“She's already been denied jobs because of this federal case,” Mackenzie said. “This has already impacted her.”

Harper, who was on the cheerleading squad at Alamo Heights High, is one of the few to challenge the recording industry, which sues people who download copyrighted music.

Many of the defendants are college students or teens who end up settling or lose by default because they have no money to challenge the recording industry's deep pockets, according to lawyers familiar with the issue.

The Recording Industry Association of America, the music industry's lobby, said it and its members had no comment.

Mackenzie said this case should make parents aware of what their kids are looking at on the Internet because it could end up costing them.

The companies initially sued Harper's father but amended the suit after learning she downloaded the music on a family computer.

“The record industry taught her a lesson,” Mackenzie said sarcastically. “They made an example of her.

“Her family and her are adamant that this is a ridiculous outrage.”

Harper was 16 years old, or possibly even 14, when she accessed the songs, Mackenzie said.

At the time, Harper said in a court affidavit, she'd never received computer training, and her skills were limited to e-mail and Web browsing. Harper said she was directed by friends or online advertising to sites such as Kazaa.

“I visited those sites and from viewing the Web pages of those sites, I understood Kazaa and similar products to be legitimate music sites that allowed a person to listen to music on their computer,” Harper's affidavit said. “Many of these sites advertised that this was 100 percent free and 100 percent legal which I had no reason to doubt.”

In 2008, U.S. District Judge Xavier Rodriguez found Harper infringed, but said it was up to a jury to decide whether the act was “innocent” — whether she was truly aware that her acts constituted copyright infringement. If the infringement is found to be innocent, that can reduce the amount per song from $750 to $200.

Rather than put the matter to a jury, the plaintiffs — Maverick Recording Co.; UMG Recordings Inc.; Arista Records LLC; Warner Bros. Records Inc.; and Sony BMG Music Entertainment — opted to accept a ruling stating they could collect $200 for each of the 37 songs.

But, if she appealed, they reserved the right to ask for the full $750 per song, records show.

Harper appealed, and the companies sought the full $750. Harper argued on appeal, among other things, that she was too young and naïve to know that what she was doing was illegal.

The appeals panel dismissed her arguments, including the “innocent infringement” defense, saying, in part, that copyright infringement warnings existed when the music was first recorded, such as onto CD.


TOPICS: Business/Economy; Culture/Society; News/Current Events
KEYWORDS: copyright; kazaa; mpaa; riaa
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Hoo boy. My kids used Kazaa to download songs. Glad I'm not facing a $40K lawsuit.
1 posted on 03/04/2010 7:59:16 AM PST by Responsibility2nd
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To: Responsibility2nd

Always turn off sharing and don’t leave the thing online for days on end.


2 posted on 03/04/2010 8:01:53 AM PST by TSgt (RE-ELECT NOBODY - VOTE THEM ALL OUT!)
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To: Responsibility2nd
If I'm ever on such a jury the only thing I'll vote for is for the downloader to pay the then-current cost of the song plus a one cent punitive award for every song “illegally” down loaded.
3 posted on 03/04/2010 8:02:21 AM PST by Gay State Conservative (Host The Beer Summit-->Win The Nobel Peace Prize!)
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To: Gay State Conservative

There really is a stupid tax


4 posted on 03/04/2010 8:02:58 AM PST by AppyPappy (If you aren't part of the solution, there is good money to be made prolonging the problem.)
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To: Responsibility2nd

Teenagers routinely get away with murder because they are “too young.” How is it they are automatically charged as an adult on this lesser crime?


5 posted on 03/04/2010 8:03:09 AM PST by Ingtar (Reckon the process will be silly - Reckonsilliation)
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To: Responsibility2nd
Hoo boy. My kids used Kazaa to download songs. Glad I'm not facing a $40K lawsuit.

I work for Crapital Records.What's your name again? ;-)

6 posted on 03/04/2010 8:03:38 AM PST by Gay State Conservative (Host The Beer Summit-->Win The Nobel Peace Prize!)
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To: Responsibility2nd

Music industry continues to shoot self in foot.


7 posted on 03/04/2010 8:04:42 AM PST by La Lydia
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To: AppyPappy

I can’t for the life of me understand why anyone but a record company executive would vote for any $40K judgment in a trial.Or anything remotely resembling $40K.If the downloader was making any serious $$$ in doing so my attitude might be different but I wonder how often that happens.


8 posted on 03/04/2010 8:06:56 AM PST by Gay State Conservative (Host The Beer Summit-->Win The Nobel Peace Prize!)
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To: Responsibility2nd

Jeez, it’s not like she stole something, after all.


9 posted on 03/04/2010 8:07:17 AM PST by Wolfie
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To: Responsibility2nd
"In 2008, U.S. District Judge Xavier Rodriguez found Harper infringed, but said it was up to a jury to decide whether the act was “innocent” — whether she was truly aware that her acts constituted copyright infringement. If the infringement is found to be innocent, that can reduce the amount per song from $750 to $200."

Thank GAWD our court system works so well, also I hope O.J. does someday find that killer!

10 posted on 03/04/2010 8:07:17 AM PST by Mad Dawgg (If you're going to deny my 1st Amendment rights then I must proceed to the next one...)
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To: Responsibility2nd
"In 2008, U.S. District Judge Xavier Rodriguez found Harper infringed, but said it was up to a jury to decide whether the act was “innocent” — whether she was truly aware that her acts constituted copyright infringement. If the infringement is found to be innocent, that can reduce the amount per song from $750 to $200."

Thank GAWD our court system works so well, also I hope O.J. does someday find that killer!

11 posted on 03/04/2010 8:07:38 AM PST by Mad Dawgg (If you're going to deny my 1st Amendment rights then I must proceed to the next one...)
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To: Gay State Conservative
"I can’t for the life of me understand why anyone but a record company executive would vote for any $40K judgment in a trial.Or anything remotely resembling $40K.If the downloader was making any serious $$$ in doing so my attitude might be different but I wonder how often that happens."

Its a great business plan if you think about it. All they need do is sue everybody and they automatically get 20,000% ROI for every successful lawsuit.

Someone cue the Guinness Beer Commercial guys...

12 posted on 03/04/2010 8:12:35 AM PST by Mad Dawgg (If you're going to deny my 1st Amendment rights then I must proceed to the next one...)
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To: antiRepublicrat; ShadowAce

ping


13 posted on 03/04/2010 8:14:17 AM PST by bamahead (Few men desire liberty; most men wish only for a just master. -- Sallust)
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To: Responsibility2nd

My kids were wise and told me they didn’t do Kazaa, but who knows, they may have when they were really young and just clicking around and don’t remember.

I think this is a horrid judgement. The songs cost .99 cents? How can one stop an innocent 14 year old from saying, I’ll download this and then I won’t have to ask mom for the credit card. I’m sure many are unaware it’s illegal.

To ask $700 for a .99 cent song to send a message to a bunch of kids whose only crime is listening to music, that is big time idiotic. I’ll bet kids that go out and steal CDs from cars don’t have that kind of restitution to pay.

Someone stole a box of CDs from my car once, maybe the court should award me 100K.


14 posted on 03/04/2010 8:16:20 AM PST by I still care (I believe in the universality of freedom -George Bush, asked if he regrets going to war.)
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To: Responsibility2nd

How about charging her the $0.99 per song if she had paid.
What is the deal with $250 per?


15 posted on 03/04/2010 8:17:05 AM PST by svcw (If you are going to quote the Bible know what you are quoting.)
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To: Responsibility2nd

Good!

This women stole from me. I want an example made of her, and others.


16 posted on 03/04/2010 8:17:21 AM PST by The Toll
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To: Responsibility2nd
They need to collect the money so the bands can donate to Obama’s re election campaign.
17 posted on 03/04/2010 8:21:50 AM PST by chuckles
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To: rdb3; Calvinist_Dark_Lord; GodGunsandGuts; CyberCowboy777; Salo; Bobsat; JosephW; ...

18 posted on 03/04/2010 8:22:15 AM PST by ShadowAce (Linux -- The Ultimate Windows Service Pack)
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To: Responsibility2nd

While the recording industry clearly has legitmate interest in keeping its recordings from being illegally downloaded, it seems to me that the punishment in these cases is far too severe to fit the crime.

If the kid had been caught shoplifting CDs of the same recordings, she’d probably get a slap on the wrist, been required to pay for or return the merchandise and received a small fine. Also, if someone steals 37 CDs they would likely be charged with a single count, not fined for each CD stolen.

What does a song cost on iTunes, about a dollar? So for “stealing” $40 worth of merchandise (in a manner that does not deprive the rightful owner of possession of said merchandise), she gets fined $40,000? This is insane!


19 posted on 03/04/2010 8:24:00 AM PST by Above My Pay Grade
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To: Ingtar

Teens make a lot of stupid decisions!

However, if she was 14 when downloading any of them, doesn’t the TX Statute of Limitations apply from the date of download? I think that would be well past the “i’ll sue you” date...

Anyone know?


20 posted on 03/04/2010 8:27:09 AM PST by RebelTXRose
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To: Responsibility2nd
Harper was unavailable for comment. Her lawyer, Donald Scott Mackenzie of Dallas, said the total with interest could well exceed $40,000 and force Harper to file for bankruptcy.

I thought judgments weren't bankrupt-able.

21 posted on 03/04/2010 8:27:47 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: MikeWUSAF

Exactly!

People that leave that thing going 24/7, with hundreds of files being shared, deserve to be caught.


22 posted on 03/04/2010 8:28:07 AM PST by VanDeKoik (Iran doesnt have a 2nd admendment. Ya see how that turned out?)
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To: svcw

>>>How about charging her the $0.99 per song if she had paid.What is the deal with $250 per?<<<

I think there should be some happy medium in between. If all the illegal downloaders had to pay is the regular price, they would just try to get away with it knowing that if they get caught they would be no worse off than if they had simply bought the recordings.

Perhaps something like $10 or $25 per song would be reasonable.


23 posted on 03/04/2010 8:28:30 AM PST by Above My Pay Grade
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To: The Toll; ShadowAce

She wasn’t held liable for downloading, she was held liable for sharing. She downloaded them into a file sharing directory for other people to download.


24 posted on 03/04/2010 8:29:16 AM PST by Perdogg ("Is that a bomb in your pants, or are you excited to come to America?")
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To: RebelTXRose

it’s federal since it happened on ALgore’s internet.


25 posted on 03/04/2010 8:30:09 AM PST by Perdogg ("Is that a bomb in your pants, or are you excited to come to America?")
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To: Gay State Conservative
I can’t for the life of me understand why anyone but a record company executive would vote for any $40K judgment in a trial.

There is no choice. The statutory minimum is $750 per violation. There were 37 violations. Thus, the damage award is $27,750.

26 posted on 03/04/2010 8:30:25 AM PST by Publius Valerius
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To: svcw
How about charging her the $0.99 per song if she had paid.

You're kidding, right? Go into the Gap and steal a sweater. If you get caught, offer to then pay the $29.99 on the price tag. See how far that gets you.

27 posted on 03/04/2010 8:31:50 AM PST by Publius Valerius
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To: svcw

Well, you can’t just award the real price because then there would be no deterrent to downloading them. Downloaders would face no downside; if caught they’d just be liable for the same cost they’re avoiding anyway. But 200X seems usurious. In ancient Israel, God’s law required a thief to pay back multiple times the value of what he stole, and the multiple varied depending on what was stolen, but it was in the range of 5X, not 200X.


28 posted on 03/04/2010 8:32:59 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: Responsibility2nd

29 posted on 03/04/2010 8:33:33 AM PST by rabscuttle385 (Live Free or Die)
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To: Above My Pay Grade
Perhaps something like $10 or $25 per song would be reasonable.

At that price, there is little deterrence, because the risk of being caught is low. Fines are "big" so that even with the low risk of getting caught and being sued, people think "it's not worth it."

Moreover, high fines encourage copyright holders to bring suits to enforce their rights; if the fines were lower, it would not be cost effective to bring suits, and copyright holders would be effectively denied the ability to enforce their rights. I really don't understand why people are advocating that the system favor the infringer.

30 posted on 03/04/2010 8:35:21 AM PST by Publius Valerius
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To: Publius Valerius
There is no choice. The statutory minimum is $750 per violation. There were 37 violations. Thus, the damage award is $27,750.

Of course there's a choice. If you believe the statutory penalty is disproportionate for the crime, you might reason "Well, I know she did the crime, but the penalty is disproportionate and I have no way to modify it but to find in her favor. Maybe next time the labels pay to have a law passed they'll put in a more reasonable penalty. Then I might uphold it."

31 posted on 03/04/2010 8:37:22 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: Gay State Conservative

Although, I understand what you are saying, I don’t think that is a fair punishment either. Like others said if you stole a $30 piece of clothing, if you get caught, should you be allowed to just pay for it and a 1 cent punitive damage and be off the hook?


32 posted on 03/04/2010 8:38:52 AM PST by Mr Fuji
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To: Above My Pay Grade
Well, they offered her a “deal” of paying $7400 for the songs. Not good but better than $27k or $40k. I assume folks think they will get a sympathetic jury and it doesn't appear to be the case.
33 posted on 03/04/2010 8:41:11 AM PST by Mr Fuji
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To: Gay State Conservative

One word: Lawyers. They have to get paid.


34 posted on 03/04/2010 8:41:38 AM PST by AppyPappy (If you aren't part of the solution, there is good money to be made prolonging the problem.)
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To: Gay State Conservative
If I'm ever on such a jury the only thing I'll vote for is for the downloader to pay the then-current cost of the song plus a one cent punitive award for every song “illegally” down loaded.

Excuse me, but are you saying that a person should pay the "retail rate" for appropriating someone else's intellectual property and then only if they are caught doing so?

You do realize, sir, that the imposition of penalties in the form of high costs are imposed to discourage such behavior.

35 posted on 03/04/2010 8:42:05 AM PST by OldPossum
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To: Responsibility2nd

What? No execution?


36 posted on 03/04/2010 8:43:03 AM PST by Lazamataz (Seriously. The only way Obama can possibly pull this out is to declare Martial Law before November.)
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To: MikeWUSAF

....And move your music to another (non-shared) folder.


37 posted on 03/04/2010 8:43:19 AM PST by peteram
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Comment #38 Removed by Moderator

To: rabscuttle385

Wasn’t there a Russian site a few years back called AllOfMp3 that was selling songs and not paying the royalties? Seems like ASCAP and RIAA jumped into that and got an uncooperative Russian government to cooperate, cuz all of a sudden,one day, the site was off the net.


39 posted on 03/04/2010 8:44:43 AM PST by mentor2k
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To: Responsibility2nd

I think anyone who owned a vinyl,tape, or CD recording should already have a license for an MP3 version.


40 posted on 03/04/2010 8:48:08 AM PST by the_daug
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To: peteram; MikeWUSAF
I have noticed that the RIAA tends to go after heavy sharers who leave files in the open for a long time (months and even years). What I've gathered is that they don't really go after people who are drive-by downloaders/sharers.

Please don't read into my statement too much, I'm not justify downloading/sharing music in this manner but rather stating an observation of the RIAA’s strategy.

41 posted on 03/04/2010 8:50:38 AM PST by Mr Fuji
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To: Still Thinking

That was the problem with FILE SHARING, once it was ruled illegal, all they had to do was make a bust with one computer, then start following the IP address of all the file downloads.


42 posted on 03/04/2010 8:51:09 AM PST by mentor2k
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To: rabscuttle385

I wonder who paid for the boob job?!


43 posted on 03/04/2010 8:52:15 AM PST by kcvl
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To: Mr Fuji
SEE POST 39:

"Wasn’t there a Russian site a few years back called AllOfMp3 that was selling songs and not paying the royalties? Seems like ASCAP and RIAA jumped into that and got an uncooperative Russian government to cooperate, cuz all of a sudden,one day, the site was off the net."
44 posted on 03/04/2010 8:53:12 AM PST by mentor2k
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To: rabscuttle385

Not guilty!


45 posted on 03/04/2010 8:55:40 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: rabscuttle385

oh yeah post that and suddenly half of FR votes not guilty :)


46 posted on 03/04/2010 8:56:07 AM PST by xp38
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To: Responsibility2nd

How can anyone believe (RIAA aside—they don’t believe) that $200 or $700 per song is reasonable?

The iTunes/Amazon MP3 cost for these songs would be $1 (okay, $0.99; I’m rounding up the penny). If we assume the worth as a fraction of a CD and estimate a 12 track CD priced at $15, we get $1.25 a song.

Let’s take the higher number of $1.25/song as the worth. The article says that she downloaded 37 songs. If you triple the worth of the song, for punitive damages (and, personally, I think tripling the damage value of anything for punitive damages sounds kind of ridiculous), you get a grand total of: $138.75.

From $140 to $27,750 (the bump up to $40k was with interest). I do not have a problem with copyright per se, but this is certifiably insane.


47 posted on 03/04/2010 8:57:15 AM PST by Seņor Zorro ("The ability to speak does not make you intelligent"--Qui-Gon Jinn)
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To: Responsibility2nd
The RIAA attack machine is an abomination.

Judges should body-slam RIAA lawyers at every opportunity, forcing them to actually PROVE damages, for example, rather than theorize and estimate. At the worst, proven, actual damages should be limited to 3x market value (Or 3x about $1 per song), and punitive damages should be similar to shoplifting fines.

She should be looking at $1000 - $2000 in damage, tops.

Courts should stop being a perverse revenue stream for the RIAA.

48 posted on 03/04/2010 8:59:10 AM PST by TChris ("Hello", the politician lied.)
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To: rabscuttle385

Not guilty!


49 posted on 03/04/2010 9:00:07 AM PST by FoxPro (I love bacon.)
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To: Publius Valerius

I disagree if the fine was $25 per song most people would think twice about illegally downloading a $1.00 song. $25.00 per song can add up very quickly.

A provision requiring the downloader to pay court costs and legal fees, if they unsucessfully contest the $25.00 a song fine would give the copyright holders incentive to pursue claims. Perhaps it should even be $50.00, but $750.00 is unconscienable, especailly when we are dealing with a minor, IMO.

I don’t advocate a system favoring the infringer. But the punishment has to fit the crime. Generally speaking, in civil cases, plaintiffs can only recover actual damages, plus court costs. The recording industry has been given special privilges to receive judgments that are 75,000% higher than their actual damages,(no doubt through some graft in the form of campaign contributions to congress) and IMHO this is wrong.


50 posted on 03/04/2010 9:00:22 AM PST by Above My Pay Grade
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