Two prominent lawyers in the fight against RIAA P2P lawsuits have taken their battle to the Supreme Court. Today, Harvard Law professor Charles Nesson and "Recording Industry vs. the People" blogger/lawyer Ray Beckerman joined with a few other law professors to ask the Supreme Court not to gut copyright law's "innocent infringer" defense.

The case concerns a woman named Whitney Harper. Several years ago, when she was a teenaged cheerleader, Harper downloaded music using P2P networks. She was caught by MediaSentry, which investigated file-sharing for the major music labels, but she claimed to be an "innocent infringer" under US copyright law, saying that in her early teen years she had thought P2P use to be just like listening to free music on the radio. That defense, accepted by the judge in her case, reduced the statutory minimum damages against Harper from $750 per song down to just $200.

On appeal, though, the decision was overturned by a three-judge panel (PDF) in the Fifth Circuit, and it took a big whack at the law's innocent infringer protections. Copyright law allows that, "where the infringer sustains the burden of proving... that [she] was not aware and had no reason to believe that... her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."

But the judges noted that the defense has a limitation: when a copyright notice "appears on the published... phonorecords to which a defendant... had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages." That is, since CDs contain printed copyright notices, Harper could not claim innocence of the law—even though she testified that none of the tracks in question came from compact discs.

Final damage award: $750 per song, multiplied by 37 songs, or $27,750.

The case has now been appealed to the Supreme Court, where Harper is represented by Kiwi Camara (who also represented Jammie Thomas-Rasset at her second trial). Camara studied under Nesson at Harvard, and now his former professor has filed an amici brief arguing that the appeals court decision is simply bizarre on its face. "The absurd conclusion is reached whereby notice in the record stores, never seen by the infringer, is sufficient to put a digital use, in his or her home, on notice of copyright liability," they write.

The law was written in an analog era, and it targeted those who copied tapes or CDs. Such people couldn't claim not to know about the copyrighted nature of the works they were copying—it was written right there on the cassette or CD! But in the digital world, this makes no sense. How could slapping a copyright notice on a CD alert anyone using a P2P network about anything?

"It is wrong to interpret a law passed by Congress to protect innocent infringers in an analog world so as to deny the mitigation of damages to digital infringers," write the law professors. "This pernicious doctrine deserves review before it becomes permanent and a precedential foundation for further impositions on Internet users."