RSSThomas mistrial raised in file-sharing defense
By Tim Conneally | Published October 20, 2008, 11:29 AM
After last month's mistrial in the proceedings against accused copyright infringer Jammie Thomas, a defendant in a similar file-sharing cases is using the decision as a precedent for retrial.
Whitney Harper was not even old enough to be tried as an adult when MediaSentry discovered that her KaZaA shared music folder contained some 544 copyrighted songs available for sharing. Thirty-seven of these songs, from artists such as Madonna, Faith Hill, Brooks & Dunn, and Good Charlotte were included in the initial filing for summary judgment (PDF available here) against the 16-year-old's father.
During her testimony, Whitney Harper admitted to using KaZaA, thus becoming the first defendant in this type of copyright infringement case to use her ignorance of the law as a defense. Harper said she had no reason to doubt that her actions were "100% free and 100% legal," and that she thought KaZaA was "similar to online radio stations." A signed statement from Harper declared, "KaZaA did not inform me that the materials available through their service were stolen or abused copyrighted material and I had no way of learning this information prior to this lawsuit."
Her case, Maverick v. Harper, was originally scheduled to go before a jury on November 17 to potentially reduce the statutory damages from $750 per infringement to $200. Now, Harper's counsel is using the mistrial declaration in Capitol v. Thomas as a precedent for the now 20-year old Texas Tech student's case.
The RIAA, however, appealed the call for a retrial in the Thomas case, and has likewise opposed the motion for entry of judgment in Harper's case. Like the appeal to Judge Davis, the RIAA's memorandum to District Judge Xavier Rodriguez cites preservation of judicial resources as a reason to forgo the special attention called to the 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 industry," the document states, "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 come-uppance by rapidly evolving technology and eroding morals. These are ironic complaints about our modern society and economy, which the entertainment industry has worked so hard to influence and shape."
The group agreed to accept no less than $7,400, or $200 per song; but Harper's attorney has said he'd settle the case for $1,200 (according to Wired Online), representing the six songs the RIAA successfully downloaded from Harper's account.
what media sentry download can not be used for evidence they own the rights to the song and have the leagle ability to download it, thats entrapent aint it?
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Entrapment applies only to law enforcement. I can legally entrap you and you can legally entrap me....just as MediaSentry can (in some states) legally entrap others.
Of course, if the lawsuit against them goes through (a state or two is in the process of forcing them to register as private investigators), then they will no longer be able to operate in the way they currently do.
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Can congress just change the Fair Use law already. Like most things in DC they are based on OLD dead ideas. Just keeping them alive causes this confusion. And we all know that the money is what brings change to laws....
Took bad eff.org is not larger..
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How on earth does putting your music collection into a shared folder on Kazaa fall into even the most liberal definition of Fair Use?
I agree, they need to fix copyright, big time, but doing away with it entirely (allowing anyone to share anything) isn't going to fix anything either.
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