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Downloading Copyrighted Songs on File-Sharing Network Is Not 'Fair Use'
In an important decision interpreting the fair use provision of the Copyright Act (17 U.S.C. '107), the U.S. Court of Appeals for the Seventh Circuit recently held that downloading full copies of copyrighted material without compensation to authors cannot be deemed “fair use.” In BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005), Judge Frank H. Easterbrook, writing for a unanimous three-judge panel, rejected the defendant's argument that she was immune from liability because she was merely sampling songs that she had downloaded from the KaZaA file-sharing network on a “try-before-you-buy basis.”
Although the recording industry has filed hundreds of complaints against users of KaZaA and similar peer-to-peer file-sharing networks, many of those cases have settled or remain tied up in district courts. Gonzalez is the first such case to reach the appellate level and result in an opinion directly addressing the issue of whether downloading music through those networks qualifies as a “fair use” under the Copyright Act.
Defendant Cecilia Gonzalez acknowledged that she downloaded more than 1370 copyrighted songs during a few weeks and kept them on her computer until she was caught. Gonzalez claimed that she owned compact discs that contained some of the songs before she downloaded them, and that she purchased others later. She conceded, however, that she never owned legitimate copies of 30 songs that she downloaded, and the plaintiff recording companies moved for summary judgment as to those 30 songs. That motion was granted by Judge Blanche M. Manning of the U.S. District Court for the Northern District of Illinois, BMG Music v. Gonzalez, Case No. 03 CV 6276, 2005 WL 106592, 2005 U.S. Dist. LEXIS 910 (N.D. Ill. Jan. 7, 2005). The district court enjoined Gonzalez from further infringement and also awarded the recording companies $22,500 in statutory damages.
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