Amicus to the Supreme Court – Whitney Harper

Charles Nesson’s Amicus Reply* to
Respondent’s Brief in Opposition to Whitney Harper’s
Petition for Certiorari to the United States Supreme Court

Section 504(c) of the Copyright Act establishes three levels of exposure to statutory damages — the lowest level for innocent infringement, a top level for willful infringement, and a middle category for infringements which are neither innocent nor willful. Whitney Harper epitomizes the innocent infringer category: she had no knowledge or understanding that she was infringing copyright by listening to music on her computer.

Respondents deny that there are three categories. They assert, “The Copyright Act has only two levels of culpability: infringement, which is a strict liability offense, and willful infringement, which requires knowledge or reckless disregard.” Capitol Records, Inc. v. Thomas-Rasset, Case No.: 06cv1497 (MJD/LIB) (2010) (Plaintiff’s Response to Amicus Curiae Brief on the Issue of Jury Instruction). They say the innocent category is gone, eliminated by § 402 because Respondents put copyright notices on the physical phonorecords. Innocent (unknowing) infringement thus moves up from the eliminated bottom category, according to them, to become §504’s middle category; knowing infringement becomes the statute’s top category, encompassing all infringements ranging from the merely knowing to the egregiously willful.

It is this absurd interpretation of § 504 that undergirds the exorbitant and wildly unconstitutional awards Respondents have obtained against Jammie Thomas-Rasset (first trial – $221,000; second trial – $1,900,000; third trial – $1,500,000) and Joel Tenenbaum ($675,000). Respondents reason that because “standard infringement requires no knowledge or intent”, the “willful infringement” top category requires no more than knowledge or intent. Ibid.

This cannot be the law, yet it is the premise on which outlandish awards against downloaders have been based and are presently being defended. It will become the law if the judgment of the court below against Whitney Harper is allowed to stand.

Respectfully submitted,
Charles Nesson
with assistance of Phil Hill, J.D. ‘13

*The Supreme Court does not permit amici to file reply briefs, but here’s what I would like to have filed.

from ray beckerman’s blog

Wednesday, November 03, 2010

According to court records Capitol v Thomas-Rasset damages retrial commenced yesterday, continued today

According to court records, the damages retrial in
Capitol Records v. Thomas-Rasset commenced yesterday and was continued today, Prof. Nesson was granted leave to file an amicus brief, and the RIAA filed a responding brief.

Nesson amicus brief
RIAA response


podcast interview with kiwi camara, whitney harper, joel tenenbaum:
kiwi tells it like it is

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