What price innocent infringement? That's the question a San Antonio jury will have to address in mid-November, as the RIAA and 20-year-old Whitney Harper will battle in court over the amount of damages Harper will have to pay to the record labels after being found liable for copyright infringement by a federal judge.

Harper was 16 when MediaSentry discovered and downloaded a number of tracks from what proved to be her shared folder on KaZaA. The record labels sued her father, but he was dropped from the suit once Whitney admitted to using KaZaA for downloading and sharing music. Her admission was enough to convince Judge Xavier Rodriguez to hand the RIAA a summary judgment this past August, but he ruled that damages be capped at $200 per song, not the $750 at minimum sought by the RIAA.

The reason for the $200 limit was Harper's innocent infringement defense. She admitted to using KaZaA, but said that she didn't know that what she was doing was wrong due to her age at the time and general lack of knowledge about how computers and P2P systems work. There was no warning from KaZaA that the music on the network was "stolen or abused copyrighted material," noted Judge Rodriguez in his opinion. He also agreed with Harper's assertion that she had "no knowledge or understanding of file trading, online distribution networks or copyright infringement" and that she believed there was nothing illegal about her activities.

Ignorance of the law may be no defense against being held liable for infringement, but it can put a serious cap on damages. Under the Copyright Act, infringement is normally punishable by fines of up to $750 to $30,000 per act, and the upper limit can be raised to $150,000 if the infringement is deemed malicious. But for cases of innocent infringement, the judge can reduce the damages below the $750 floor. In the case of Maverick v. Harper, the judge told the record labels they could accept damages of $200 per song or have a jury decide what the total damages should be; the RIAA has chosen a jury trial over the damages.

The RIAA's decision to reject the judge's award appears a bit hypocritical on a couple of levels. The group has said on numerous occasions that its legal campaign against P2P users isn't about making money—indeed, an industry executive testified during the Jammie Thomas trial that the lawsuits are a money-losing proposition. Instead, the suits are meant, among other things, as a deterrent to copyright infringement and to teach P2P users a lesson.

Here, it seems painfully clear that the lesson has been taught. Harper has been found liable for 37 counts of copyright infringement and the judge is willing to award the RIAA $7,400 in damages—almost double what her father would have had to pay had he accepted the terms of the RIAA's prelitigation settlement letter back in 2005. Furthermore, in the 28,000-plus copyright infringement lawsuits filed by the record labels, the RIAA has never once asked for a set monetary damages, saying instead that it would be content with whatever the court deemed appropriate (former RIAA head litigator Richard Gabriel made this very statement during the Thomas trial). Judge Rodriguez did exactly that, and the labels have decided that it wasn't enough. Now, the RIAA will tie up a federal courtroom, a judge, and a jury for a few days before Thanksgiving in hopes of extracting an additional pound of flesh from someone who says she didn't know she was doing anything wrong back when she was just 16 years old.

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