Feb 12 2006

Can I download it to try out the music?

No, not unless the copyright owner permitted or invited that. The idea that downloading a file is permitted because it is so easy on Internet is simply wrong. Downloading is copying and infringement. Indeed, it can have massive adverse effects on copyright owners.

One myth on Internet is that so-called personal or private uses of copyrighted works are fair use. It is not clear where this image cam from, but it is not true. Think about your reaction if I told you that I have a right to borrow your car whenever I like, so long as I don't sell it to someone else. You would not be happy. Copying does not become fair use simply because the person making the copy does not resell the copy.

To be clear, however, if copyrighted files have been posted on Internet by the copyright owner (or with its permission) and the context of the posting invites copying, downloading a file might be covered by an implied or express license depending on the circumstances. In the absence of express or implied permission, however, downloading is infringement unless fair use doctrine applies.

In cases where the downloader engages in further copying and distribution of the work for profit, the case against fair use is quite clear and consistent. See Micro Star v. Formgen Inc., 154 F3d 1107 (9th Cir. 1998) ; Storm Impact, Inc. v. Software of the Month Club, 44 USPQ2d (BNA) 1441 (ND Cal. 1997). There is no viable argument that making multiple copies and distributing them is fair use simply because the work appeared online or simply because the downloader does not charge for the copies it makes and distributes.

Arguments that downloading is fair use center on downloading for personal use, rather than reuse for redistribution. Courts properly reject arguments that downloading for personal use constitutes fair use. "Fair use" refers to uses that do not harm the copyright owner. This is typically not the case where the defendant merely downloads for its personal benefit the entire copyrighted work without authorization. Indeed, as the court Napster observed, obtaining value without compensating the copyright owner can be commercial use of a work, even if the downloading party did not sell the unauthorized copy for a profit. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)
The question is not whether the one copy made by the one defendant of the one work harms the copyright owner, but whether allowing millions of persons to make one copy without compensating the copyright owner would be harmful. Usually, it would. Recently, in BMG Music v. Gonzales, 2005 WL 3336532 (7th Cir. 2005), the Seventh Circuit in an opinion by Judge Easterbrook made this explicit. The defendant there was an individual who, over a period of time, had downloaded over one thousand music files - supposedly to review the files to make a decision about whether or not to purchase a copy. The person claimed that copying for purposes of review was fair use because it did not affect the market for the work. The court rejected this. Judge Easterbrook observed:

As she tells the tale, downloading on a try-before-you-buy basis is good advertising for copyright proprietors, expanding the value of their inventory. The Supreme Court thought otherwise in Grokster, with considerable empirical support. As file sharing has increased over the last four years, the sales of recorded music have dropped by approximately 30%. Perhaps other economic factors contributed, but the events likely are related. Music downloaded for free from the Internet is a close substitute for purchased music; many people are bound to keep the downloaded files without buying originals. That is exactly what Gonzalez did for at least 30 songs. It is no surprise, therefore, the only appellate decision on point has held that downloading copyrighted songs cannot be defended as fair use, whether or not the recipient plans to buy songs she likes well enough to spring for.

Arguments that the copyright owner is benefits from uses that it never authorized rightfully fail. The right to choose a method of developing or exploiting a copyrighted work resides in the copyright owner. The claim, by another party, that its use of the work benefited the owner attempts to turn the principle of property rights upside down. Judge Easterbrook commented:

Although BMG Music sought damages for only the 30 songs that Gonzalez concedes she has never purchased, all 1,000+ of her downloads violated the statute. All created copies of an entire work. All undermined the means by which authors seek to profit. Gonzalez proceeds as if the authors' only interest were in selling compact discs containing collections of works. Not so; there is also a market in ways to introduce potential consumers to music.

As noted by Judge Easterbrook, the Supreme Court's ruling in the Grokster decision similarly is based on an assumption that downloading (copying) files is not fair use. Metro Goldwyn Mayer Studios, Inc. V. Grokster, Ltd., 125 S.Ct. 2764 (2005).


The court in BMG affirmed an award of statutory damages at $750 per infringed work. Ooooops! Lets try one last quote to make the point:

Limited copying may be permissible for certain noncommercial, educational purposes, taking into account the nature of the copyrighted work and market considerations. These factors, however, weigh against application of the fair use doctrine to cases involving Internet piracy. PWA allowed members to obtain unlawful, digital duplicates of thousands of commercially available software programs. The government also presented expert testimony on the harmful effect of Internet piracy on the potential market for the copyrighted work, though we think this point is fairly obvious. It is preposterous to think that Internet piracy is authorized by virtue of the fair use doctrine.

U.S. v. Slater, 348 F.3d 666 (7th Cir. 2003)


Written By:Robert Gagnon On March 15, 2006 10:06 PM

Is downloading books illegal?

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