The US Supreme Court today refused to hear the case of a file-swapper who claimed she was an "innocent infringer," but one justice at least understands the absurdity of the current law.

The case concerned Whitney Harper, who shared some music on the family computer when she was a teenager and was subsequently hit with a lawsuit from the RIAA. Harper claimed that she was an "innocent infringer" who went straight when she learned about copyright law, and that she had thought P2P use was basically like (legal) Internet radio.

A federal court in Texas allowed Harper's claim, which reduced her liability to $200 per song instead of the usual statutory minimum of $750. An appeals court overturned the ruling; as it pointed out, copyright law currently states that one can't claim "innocence" so long as a copyright notice was printed on the physical "phonorecord." But because Harper had downloaded on computers and never seen the CD version of her songs, she argued that the provision was patently unfair and appealed to the Supreme Court.

The justices today refused to hear the case, though Samuel Alito dissented (PDF). "This provision was adopted in 1988, well before digital music files became available on the Internet," he wrote. "But a person who downloads a digital music file generally does not see any material object bearing a copyright notice, and accordingly there is force to the argument that §402(d) does not apply. In such a case, the question would simply be whether the infringer 'was... aware and had... reason to believe,' that the downloading was illegal."

While the Court is most likely to act on issues where the different Courts of Appeal are divided, Alito argued that the case should have been taken anyway. "Although there are now no conflicting Circuit decisions," he said, "I would grant review in this case because not many cases presenting this issue are likely to reach the Courts of Appeals. The Court has decided not to grant review at this time, but if a conflict in the Circuits develops in the future, the question presented, in my judgment, is important enough to warrant review."

For now, though, Harper's verdict remains in place: $750 for each of the 37 songs at issue, or $27,750.