

The Recording Industry Association of America is labeling a Texas woman "vexatious" for her refusal to pay the record labels $7,400 for allegedly infringing 37 songs on the Kazaa file sharing network.

Instead, 20-year-old Whitney Harper is demanding a jury trial. The Texas Tech student wants a federal judge to consider the mistrial in the Jammie Thomas case, in which a jury awarded the RIAA $222,000 for infringing 24 songs. In that case, the nation's only file sharing lawsuit to go to trial, a Minnesota federal judge declared a mistrial after concluding he wrongly instructed jurors that simply making music files available on a peer-to-peer network constituted infringement.

Whitney's motion is believed to be the first of the thousands of pending RIAA file sharing cases to invoke the Jammie Thomas mistrial decision, which U.S. District Judge Michael Davis wrote Sept. 24. The RIAA wants to appeal that decision, but first needs Davis' blessing.

Following the line of reasoning in the Thomas mistrial, the Texas woman's attorney said his client can only be liable at most for six songs, the number of tracks RIAA investigators said they downloaded from her share folder. Judge Davis ruled that the 24 downloads the RIAA investigators made from Thomas' share folder count as evidence of infringement.

The RIAA is urging (.pdf) the Texas judge to stick with his previous rulings that making music files available constituted infringement, and therefore force a settlement instead of trial.

"Because the Court already has addressed this issue twice, defendant’s continued attempts to raise it are vexatious," RIAA attorneys wrote (.pdf) in court documents. The RIAA, which has filed an estimated 30,000 file sharing lawsuits, labeled New York attorney Ray Beckerman "vexatious" last month for his defense of an RIAA defendant.

The RIAA has agreed to accept $200 per track instead of the usual base of $750 under the Copyright Act because the woman is claiming an innocent infringement defense. The Copyright Act, which carries penalties of up to $150,000 per track, allows penalties as low as $200

for innocent infringement defenses — in this case a teenager claiming she was clueless about what she was doing.

Whitney has admitted to downloading Kazaa and music when she was between 14 and 16 years old. She later moved out of her family's San

Antonio home, but the family computer was still running Kazaa and making available the music she downloaded years ago — all unknown to the woman and her family. The RIAA sued her last year.

"I think there is a good chance of getting a jury nullification in this case," said the woman's attorney, Donald Scott Mackenzie of Texas.

Mackenzie said he would be willing to settle the case for $1,200 —

$200 for each of the six songs the RIAA downloaded from the computer's open share folder.

Illustration: Modernhumorist.com