Do You Download Music Over A File-Sharing Network?
Author: Jason A. Martin

It can be estimated that millions of people around the world
share music over a file-sharing network. For this article, I am
addressing the issue in America mainly because I am not aware of
the laws in other countries. Do you think it is illegal to
download music from file-sharing networks? What about music you
already own? An important recent court decision will answer
these questions directly and you might be surprised.

Recently the United States Court of Appeals for the Seventh
Circuit heard a case against a Chicago woman, Cecilia Gonzalez.
Many plaintiffs including BMG, Sony and others brought the case
against her. Gonzalez allegedly had downloaded over 1,000 songs
through KaZaA—although she admitted to only 30. Keep that number
in mind, 30. Many, if not just about all, people who download
files over a file-sharing network don't stop at one file.
Thirty files can be reached in minutes to an hour without
thought. In fact, it was alleged that Gonzalez downloaded 1,370
songs in just a few weeks, which is an average of 65 songs per
day.

If you where caught downloading thirty songs over a
file-sharing network, what would your defense be? Let's look at
two specific common defenses and see how a court might react. I
have selected two defenses that I feel are most common, because
they not only appear in the court case I have referenced, but
many others I have surveyed would try to use them as their
defense as well.

First Defense: I was simply trying out the songs to see if I
liked them and then I planned to buy the ones I liked and erase
the ones I don't. (Simplified: try-before-you-buy)

Judge Eastbrook, one of the judges hearing the Gonzalez case,
pointed out that this defense is not valid because one had many
avenues to hear music before purchasing. Eastbrook names iTunes,
radio, internet radio, Yahoo! Music and others as ways to
legally try before buying. If this was going to be your
defense, you will lose.

Second Defense: I am only downloading music that I already own.


This seems like a great defense, at first. You already own the
music and the law allows you to create a backup copy. Ah, but
here is where it goes south. Downloading music you already own
is not considered fair use under the U.S. Copyright Law and
your action is therefore copyright infringement. See UMG
Recordings Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349.

Furthermore, the try-before-you-buy scenario is really blown
away by the fact that you no longer need to buy CD's in whole.
iTunes really helped change the legal arena in this respect
because a user can both sample songs at their leisure and
purchase single songs. The ability to purchase single songs is
the big one.

In the end, Gonzalez lost her case. The thirty songs, that
would have cost $29.70 at iTunes, will end up costing her
$22,500 in damages—imagine what it would be if the plaintiffs
had pushed for a decision on all 1,370 songs. She was given the
opportunity to settle for $3,500 before going to court, which
she declined—another bad decision. If you download music over
file-sharing networks and are caught, what will be your legal
defense?


About The Author: Jason A. Martin is a Journalism Major
(Political Science minor) and future law school student. His
blog deals with Politics, Media and the Law. You can view it at
http://www.JasonAMartin.com To keep up to date with Mr. Martin's
articles, visit http://www.jasonamartin.com/subscribe.php