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  If the name Kiwi Camara rings only a faint bell, here is a reminder: In 2001, then 16, he was the youngest student ever to enroll at Harvard Law School. Yes, that Kiwi Camara. Now, after graduating from Harvard Law magna cum laude and launching a law firm in Houston, Camara is 26 and returning to the limelight with a petition before the Supreme Court in Harper v. Maverick Recording Company. It is the first music-downloading copyright case to reach the Court from a wave of litigation launched by the recording industry to clamp down on illegal file-sharing. The Recording Industry Association of America or its members sued or threatened to sue more than 40,000 people for infringing record company copyrights, according to Camara’s brief. Camara made history when he started at Harvard Law, but he made headlines the next year when he uploaded his class notes, as requested, to a Harvard web site for the use of future students. His mistake: using offensive shorthand terms in his notes, such as this one to describe the Supreme Court case Shelley v. Kraemer: “Nigs buy land w/no nig covenant: Q: Enforceable?” The resulting uproar produced calls for censuring Camara and enacting a speech code at the law school. In The People v. Harvard Law, a book that focused in part on the Camara episode, author Andrew Peyton Thomas wrote that with one mouse click, Camara had “ruin[ed] his career before it began.” But Camara’s career was not derailed, though the book indicates he initially lost some job offers. Now, asked about his Harvard experience, Camara said, “I’m one of the few people who loved my time at Harvard.” Camara was asked if his Harvard years brought him in contact with its then-new dean Elena Kagan to the point where she might recuse from his case as a justice. “I don’t think so,” said Camara. “All the stuff that made the news happened the year before she came,” while Robert Clark was dean. Camarata said he and Kagan became “acquainted” after she arrived, and she judged him in a moot court competition once. But it is likely that Kagan and other justices have been moot court judges of dozens of Court practitioners without feeling the need to recuse. Camara is name partner in the Houston firm Camara & Sibley, launched after Camara clerked for an appeals judge and taught at Northwestern University School of Law following Harvard. He has a broad commercial and general practice, including representation of several music downloaders. Six month ago, Camara read a ruling by the U.S. Court of Appeals for the 5th Circuit that went against Whitney Harper, a 16-year-old high school student from Texas who was sued for illegally downloading 37 recordings. Camara volunteered to represent her for free. “We didn’t like the decision and offered to help her any way we could.” He added, “We’re on a pro bono mission to see what we can be done” to minimize legal exposure for so-called “innocent infringers.” At the trial stage before the U.S. District Court for the Western District of Texas, the recording companies sought damages against Harper of $750 per infringement, the minimum called for by the Copyright Act. But Harper invoked an exception in the law which allows for damages of $200 where the infringer “was not aware and had no reason to believe” that he or she was violating copyright. Harper claimed she had no idea at the time that downloading files from KaZaA was illegal, likening what she had done to listening to an Internet radio station. The trial judge agreed with her and set the damages at $200 per song. On appeal, the record companies challenged the “innocent infringer” defense. The 5th Circuit reversed, finding that Harper “cannot rely on her purported legal naivety,” because the record companies had placed copyright notices on the CD version of their songs. Under its reading of the copyright law, the court said that disclosure by the record companies automatically foreclosed the innocent infringer defense. The $750-per-song fine was back, for a total of $27,750. In his petition, Camara asserts that notification on a CD label should not determine whether an infringement is innocent or not, because the defendant “may never have had access to a CD corresponding to the music files that she listened to.” Camara said circuits are split on the issue, and the high court should resolve it. The 5th and 7th circuits have ruled that copyright notice anywhere can defeat an innocent infringer defense, while the 2nd Circuit ruled that the notice has to be on the copy the infringer used. Charles Nesson, one of Camara’s Harvard professors, has filed an amicus curiae brief sketching the history of innocent infringement and urging the Court not to accept “the absurd conclusion” that “notice in the record stores, never seen by the infringer, is sufficient to put a digital user, in his or her home, on notice of copyright liability.” Because the RIAA suits tend to settle or are not appealed, Camara hopes the Court will take Harper’s case to end the dispute. “It could be now or never,” he said. Tony Mauro can be contacted at [email protected].

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