法律英语：83 File Sharing Law

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2. Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is file sharing and downloading on the Internet. Millions of Americans download media files via the Internet. But when are these downloads legal, and when are they not? The Quick and Dirty Tip is that if you would normally have to pay for it at your local Borders or Barnes & Noble, you must also pay for it on the Internet. You may not download it for free.

Under federal law, artistic 3 works such as songs, movies, books, and photographs can be copyrighted. Once the work is copyrighted, the creator of the work gets a number of rights including the exclusive rights to copy and distribute it.

For example, U2 wrote and recorded an excellent album titled The Joshua Tree. They copyrighted their songs and the artwork used on the CD. Then you buy it. You can listen to the album, use songs in a mix CD or playlist on your iTunes, etc. But, you cannot make 100 copies and sell them on the street corner because you are infringing 4 on U2’s right to do so. They made the album and copyrighted it, so they get to control its distribution.

The same idea applies to the Internet. You can buy The Joshua Tree, burn it to your computer, and listen to it. You cannot then charge people $1 each to download a song from you. Under the No Electronic Theft Act, you cannot give the song away for free either. You are, again, doing things that only U2 has the right to do: copy and distribute.

And this brings us to file sharing programs. File sharing programs are computer programs that let users grant public access to a folder 5 on their computer. So, I could put in my public folder photos from my vacation to Hawaii, a short film that I created and copyrighted, and the songs from The Joshua Tree. Then, other users in the network could download the files to their own computers. Let’s look at each in turn:

My vacation pictures are fine because they are not copyrighted. I can share them with anybody I want, and anyone can distribute them to anyone else.

The short film I created is slightly different. Assuming that I own all the copyrights to it, I have rights to the film and can control how I distribute it. I have the right to post the film, and you can download it because I chose to make the episode downloadable for free. But, you do not have the right to redistribute the film by posting it on YouTube. If you downloaded the film and then sent the file to your dad, you are technically 6 infringing on my copyright. This is true even though I do not charge you for the file.

U2’s album is a pretty straightforward 7 example. Once I put the copyrighted songs up, I am distributing them, and anyone who downloads the song is effectively stealing it from U2 for the purposes of copyright law. This is true regardless of the number of songs I put up, the quality of the recording 8, and whether one person or a million people download the song.

To use the Border’s analogy, I could not burn 100 copies of U2’s album and sell it to Borders because only U2 has the right to do that. You would be stealing from Borders if you walked into the store and took the album without paying for it. Both of us are breaking the law and can face penalties.

The penalties for copyright infringement 9 range considerably 10. For willful commercial infringement, the penalty can be as high as six months in prison and $250,000 in fines.

Initially 11, the government and copyright holders 12 sued only the makers 13 of file sharing programs, such as Napster and Grokster. But, copyright holders have been cracking down on individual users too. On September 8, 2003, the Recording Industry Association of America (RIAA), the trade group that represents the U.S. recording industry, filed 261 lawsuits 14 against individual file-sharers. Among the 261 people targeted, four were college students who settled the claims for $12,000 to $17,500. That campaign has escalated 15 recently, and on February 28, 2007, the RIAA launched a new campaign against illegal file sharing against 400 students on 17 university campuses.

These suits pit the central goals of copyright against each other. On one hand, we want artists to be able to maintain exclusive control over how they promote, distribute, and sell their work so that they have an incentive 16 to create something that is unique and inspiring. On the other hand, we want the public to be able to access the music, and the Internet is a truly remarkable 17 tool for doing so. For two disparate views on how the problem should be solved, please visit the RIAA’s website at。。。and the Electronic Frontier Foundation’s website at。。。In the end, the Quick and Dirty Tip is to be very careful with file sharing programs. Many listeners might be infringing on copyrights unintentionally by posting their music files in their public folders 18. To ensure that you do not unintentionally commit copyright infringement, please visit the EFF’s tips page.

The safest option is to purchase music legally, either at a music store, or online. iTunes is an excellent option where users can buy individual songs for $0.99. For a list of other sites where you can buy music, please visit the RIAA’s website.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful 19 Life. Be sure to check out all the excellent Quick and Dirty podcasts at QuickAndDirtyTips.com.

You can send questions and comments to。。。。or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.

UPDATE:

Many listeners have written regarding the following statement:

“My vacation pictures are fine because they are not copyrighted. I can share them with anybody I want, and anyone can distribute them to anyone else.”

As many listeners have pointed 20 out, this statement is not entirely 21 true. The creator of an artistic work such as a photograph immediately gains some copyright protection simply by taking the photograph. My statement is inaccurate 22. I apologize to you, loyal listeners, and thank those listeners who wrote to correct me.

The point I intended to make is that I would have little practical legal recourse against you if I posted my own files publicly without indicating that these photographs were intended to have copyright protection. (For example, I could do so by putting a © symbol on the photograph, but such a designation is not necessary.) Should I choose to sue for copyright infringement, I would not be likely to win any significant monetary 23 damages. I used the vacation picture example as a practical contrast to that of my own copyrighted movie or a popular band’s copyrighted music album. In doing so, I oversimplified and misstated the law.

I encourage listeners to e-mail and comment for this exact purpose. I intend to convey accurate legal information while maintaining language that is not overly technical or confusing. Thank you for listening, and please continue to comment!

Legal Lad