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U.S. Supreme Court

Alito Dissents from Cert Denial in Music Downloading Case Against Texas Teen

Posted Nov 29, 2010 12:04 PM CDT
By Debra Cassens Weiss

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Justice Samuel A. Alito Jr. disagrees with the Supreme Court’s refusal to hear a dispute involving a 16-year old Texas youth accused of illegally downloading music from the Internet.

The teenager, Whitney Harper of San Antonio, claimed she was an “innocent infringer” who wasn’t aware the songs had been protected by copyright law, SCOTUSblog reports. Innocent infringers are liable for minimum damages of $200 for each work infringed, compared to a usual minimum of $750, Alito explained in his dissent (PDF) from the cert denial.

The New Orleans based 5th U.S. Circuit Court of Appeals had ruled that the innocent infringer claim wasn’t available under the 1988 law, which bars the defense when a copyright notice appears on the “phonorecord.” The appeals court had ruled there is no requirement that the downloader actually see the copyright notice, as long as he or she could have confirmed that the work was copyrighted.

Alito wrote that the statute defines “phonorecords” as material objects, and there is a “strong argument” the law restricting the innocent infringer defense does not apply in a digital downloading case, he wrote.

In such a case, the question would be whether the infringer was aware of and had reason to believe the downloading was illegal, he wrote. Alito notes there are no decisions that conflict with the 5th Circuit ruling, but he would grant review because few cases are likely to reach the federal appeals courts.

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