Copyrights

BNA

Downloading Copyrighted Music
Using P2P Software Not Fair Use


The downloading of copyrighted music through a peer-to-peer file-sharing network is direct infringement that cannot be defended as a fair use under the Copyright Act, the U.S. Court of Appeals for the Seventh Circuit ruled Dec. 9 (BMG Music v. Gonzalez, 7th Cir., No. 05-1314, 12/9/05).
Affirming a lower court's injunction and an award of $22,500 in statutory damages--$750 for 30 songs downloaded--the appellate court rejected the infringer's contention that she was merely sampling music on a try-before-you-buy basis or that the downloads were merely a form of time-shifting permitted under a 1984 Supreme Court ruling. Instead, the court said that the infringer's retention of copies of the downloads for future use directly undermined the income available to authors of the copied works and thus precluded a fair use defense.


Infringement Found Below

Defendant Cecilia Gonzalez used the KaZaA file-sharing software to download more than 1,370 copyrighted songs, some of which were contained on compact disks she owned or later purchased.
BMG Music and others filed a lawsuit against Gonzalez in 2003, alleging copyright infringement.

Judge Blanche M. Manning of the U.S. District Court for the Northern District of Illinois granted summary judgment for the copyright owners, enjoining Gonzalez from further infringement and awarding statutory damages of $22,500, or $750 for each of the 30 songs for which Gonzalez did not own legitimate copies.

Gonzalez appealed.


Sony Time-shifting Analogy Rejected

Judge Frank H. Easterbrook first rejected Gonzalez's contention that her downloading activities were a form of time-shifting permitted under Sony Corp. v. America v. Universal Studios, Inc., 464 U.S. 417, 220 USPQ 665 (1984), known as the "Betamax" decision.
"A copy downloaded, played, and retained on one's hard drive for future use is a direct substitute for a purchased copy--and without the benefit of the license fee paid to the broadcaster," the court said.

"The premise of Betamax is that the broadcast was licensed for one transmission and thus one viewing. Betamax held that shifting of the time of this single viewing is fair use," the court said. By contrast, the files that Gonzales obtained were posted in violation of copyright law, there was no license covering a single transmission, and Gonzalez kept copies, the court noted. "Time-shifting by an authorized recipient this is not. . . ."