Internet pirates don't usually look like Johnny Depp painted up as Captain Jack Sparrow.
More like the smiling high school cheerleader that Whitney Harper of San Antonio was when major record labels Maverick Recording, UMG, Warner Brothers and Sony sued her six years ago for illegally downloading and sharing copyrighted songs on her computer.
Most people like free stuff. Teenagers are no different. And when somebody tells them, "Hey, you know you can download tunes for free," how many will go, "Are you sure that's legal?"
The recording industry sued thousands of music freeloaders between 2003 and 2008, and most settled, though they paid a lot more than it would have cost to buy the music in the first place.
But Harper and a Minnesota woman kept fighting, and not with happy results.
The 5th U.S. Circuit Court of Appeals ruled in February that Harper should pay the record companies $27,750, or $750 each, for 37 wrongly downloaded and shared tunes, such as Fleetwood Mac's "Dreams" and Mariah Carey's "We Belong Together."
Jammie Thomas-Rasset, who's described in news accounts as a Minnesota single mother, has it worse. She's been through three trials, and in November a jury concluded that she should pay $1.5 million for 24 songs - $62,500 apiece. (The first trial resulted in a $220,000 verdict; the second, $1.9 million, according to reports about the case.)
Harper's was the first case to reach the U.S. Supreme Court, but the justices weren't buying. It takes four votes to grant a hearing, and only Justice Samuel Alito publicly indicated any interest. But it wasn't in the issue of whether the damage assessments were outrageous, as many online commenters contend, or the question of whether the recording industry is a bully trying to stifle innovation, which is more a philosophical debate than a legal one.
In a dissent Nov. 29, Alito addressed the point on which Harper's appeal hinged: Is there room in copyright law for someone who gets music from the Internet to be an "innocent infringer," or is every nonpaying online tune-ophile a scofflaw?
The federal Copyright Act guarantees artists the right to profit from the work for a "limited" time. Congress set the damages at $750 to $30,000 per illegal use of a copyrighted work. But for someone who violated copyright without knowing or meaning to, the amount is a minimum of $200.
Documents in Harper's case indicate that she used peer-to-peer sharing software from KaZaA, which has since gone to a pay system; LimeWire, which shut down in October after a federal judge found that it facilitated massive infringement; and iMesh, which says it now offers the first authorized file-sharing service.
But she argued that she was too young and naive to understand that her actions were illegal, especially when the files she downloaded didn't carry warnings that they couldn't be copied for free.
But of course they didn't show the warnings - because they were accessible illegally.
I don't know whether she truly believed what she was doing was like listening to Internet radio, as she's supposed to have claimed - or whether that's a convenient excuse. The 5th Circuit said that didn't matter anyway.
What mattered, the court said, was that she had access to CDs, on which she could have seen the required copyright warnings.
Alito said there's a "strong argument" that the Copyright Act provision relating to innocent infringers and access to copyright notices doesn't apply to digital files at all because it was written before the age of Internet music downloads.
But just as technology often outpaces the law, the industry is also developing quickly.
After getting a 2005 Supreme Court ruling against free sharing on Napster, the record industry stopped suing users in 2008 but kept going after sites like LimeWire. Meanwhile, online services have kept evolving.
Wired.com columnist Paul Boutin noted this week that songs can now be bought for a song online (often $1), and in November the Beatles came available on iTunes. "The age of stealing music via the Internet is officially over," he wrote, crediting "the record labels and online stores we loved to hate" with innovating, albeit under pressure from "audiophiles and copyfighters."
It's possible that overly aggressive litigation and the public backlash it caused helped propel changes in the music industry and open opportunities for savvy companies and for consumers as a result. Of course, that's not much consolation to the defendants who never expected their music to cost so much.
ABOUT THE WRITER
Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram. Readers may write to her at 400 W. 7th Street, Fort Worth, Texas 76102, or via e-mail at firstname.lastname@example.org.