|
Introduction
Background
File-sharing, also known as peer to peer file-sharing or
simply "p2p," has become extremely popular and controversial since the invention
of Napster (the first file-sharing software program) in 1999. In September,
2003, the Recording
Industry Association of America (RIAA) filed copyright
infringement lawsuits against 261 individuals for illegal file-sharing of
copyrighted sound recordings. The RIAA lawsuits have resulted in a great deal of
media attention and public debate on the issue of file-sharing. Many people have
questions about the legality of file-sharing. This FAQ is intended to provide
some answers to common questions about copyright and file-sharing. It is hoped that the information provided will be useful to
anyone who is interested in the controversy revolving around the file-sharing of
copyrighted works. Disclaimer
This FAQ is intended to provide general
information about copyright law as it applies to online file-sharing. It is
intended for informational and educational purposes only. Some
aspects of copyright law are quite complex and consequently some of the
information presented has been simplified. If you need specific
advice based on your own particular circumstances, you should consult with a
qualified attorney.
Questions
What is file-sharing?
File-sharing (more specifically, "peer-to-peer file-sharing" or "P2P") is in simple terms a way for people connected to the Internet to
share files stored on their computers. File-sharing services such as
Kazaa,
Grokster,
Morpheus,
i-Mesh,
etc. provide software which enables people to search for files on other people’s
computers. File-sharing software can be
downloaded for free on the Internet although some file-sharing services charge a
fee for premium services (such as versions which block pop-up advertisements,
etc.). Users of file-sharing software can download files from other users'
computers and make files stored on their computer available to other users to
download. Most people use these services to search for music and video
files in order to download (copy) them to their own computers. The vast majority
of files made available over file-sharing networks contain copyrighted music and
movies. Most of the copyright owners of the music and movies "shared"
through file-sharing networks have not authorized their works to be made
available in this manner.
Back to Top
What is copyright?
Copyright is actually a group of rights afforded by law to authors
(and other owners) of many types of artistic and creative works such as songs, sound recordings,
movies and other audiovisual works, literary works, visual artwork (paintings,
sculpture, photographs), etc. The
exclusive rights
provided by copyright law are:
- The right to
reproduce the copyrighted work
- The right to adapt (or prepare
derivative works) based upon the
copyrighted work
- The right to distribute copies or
phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental, lease, or
lending
- The right to perform the copyrighted work publicly
- The right to display the copyrighted work publicly
- The right to perform sound recordings publicly by means of a digital audio
transmission
Back to Top
What is copyright
infringement?
In general,
copyright infringement occurs when someone other than the
copyright owner (or someone authorized by the copyright owner) exercises one or
more of the copyright owner's exclusive rights. There are however, some
exceptions to this general rule such as when a use of a copyrighted work is held
to be a "fair
use" of the copyrighted work (these limitations are found in
sections 107-122 of the U.S. Copyright Act of 1976, but none
are likely to apply in most situations involving file-sharing).
Back to Top
Is file-sharing illegal?
Whether file-sharing is illegal or not depends on exactly what
is being shared and under what circumstances. There are certainly legal uses for file-sharing software. For
example, some musicians chose to make their music freely available on
file-sharing networks to try to generate interest in their music. It is also
legal to share works that are in the
public domain. However, it is
generally illegal to use file-sharing software to trade copyrighted music or
other copyrighted works (e.g., movies, software, photographs, etc.) without the
copyright owner’s permission. In other words, it is the copyright owner (whether
a relatively unknown independent artist or a record company which owns the
copyright to a very well known artist’s recordings) who is legally entitled to
decide whether to make their works freely available through file-sharing. Many
copyright owners chose not to do so since they do not receive any
payment from file-sharing of their works and since people obtaining free copies
may be less likely to purchase copies.
The vast majority of file-trading activity is illegal since
most of the works being traded are popular copyrighted music which has not been
authorized to be distributed through file-sharing. This violates the copyright
owner’s
right of reproduction
under U.S. copyright law. Although some people still seem to believe that
file-sharing of copyrighted works is not illegal, courts that has addressed
this issue so far have generally indicated that it is.
Back to Top
Is file-sharing ethical?
Some people believe that file-sharing of copyrighted works
without authorization is just like stealing (i.e., like shoplifting a CD
from a record store). Under this view, file-sharing deprives musicians,
songwriters, record producers, and record companies of income derived from the
music they create and invest in. On the other hand, file-sharing proponents
assert many arguments that file-sharing is a good thing. However, most of the
rationales given in support of file-sharing, do not constitute legal defenses to
copyright infringement and some do not really make much sense ethically or
logically. Some of
the more common are:
- "CDs cost too much and usually only contain 1 or 2 songs I
really want." Even if you believe this, that doesn’t give you the right to
illegally obtain the songs you want through file-sharing. Although not a
perfect analogy, if I
want a new car, but believe the model I want is overpriced, would I be
entitled to steal it? Stealing a car and infringing a copyright are not
the exactly same, but both involve violating someone's ownership rights.
- "File-sharing is a way to sample music in order to decide
whether you want to buy it on a CD." However, it is
the copyright owner’s decision as to whether, how, and to what extent a work
can be sampled before purchase. Again using a car analogy, cars dealers will
generally allow you to test drive a car before you decide whether or not to
buy it. However, they don’t let that test drive last indefinitely or let you
keep the car even if you decide not to buy it.
- "No one is really hurt by file-sharing or if anyone is
hurt, its just the huge entertainment corporations." Anyone who believes that
no one is being hurt by illegal file-sharing is probably unaware of (or
prefers to ignore) what has been happening in the music industry over the past
several years. Record sales have declined by about 30% since the emergence of
file-sharing. Large companies such as the major record labels and movie
studios have
certainly been hurt by illegal file-sharing (which has resulted in layoffs of
thousands of employees). While there are other factors that have also
contributed to the decline in record sales, illegal file-sharing seems to be
the most significant factor. In reality, it’s probably the little guy (e.g., independent
artists and record labels, record producers and small music publishers, etc.)
that are being harmed the most by illegal file-sharing since small businesses
often struggle to make enough money to stay in business in the first place.
Back to Top
Is
it possible to legally obtain music using file-sharing software?
Yes. It is possible to legally obtain music through
file-sharing since some copyright owners (primarily independent musicians)
authorize the free distribution of their music through file-sharing services.
However, it is very difficult to know whether a particular music file has been
authorized or not. The vast majority of the music being traded by file-sharers
has not been authorized to be distributed by file-sharing services and music by
well known artists is almost certain not to be authorized. Finally, while some
independent artists authorize file-sharing of their music, many others do not.
The best approach from a legal standpoint is to assume that music is not
authorized for file-sharing unless you somehow know otherwise (e.g., an
independent artist, on their website or elsewhere, encourages fans to download
their music using file-sharing services). In addition, there have recently
been some attempts to offer legal file-sharing services by companies such as
iMesh,
Mashboxx and Ruckus which recently
introduced a free service for college students. Record companies and many
artists have generally agreed to make their music available through file-sharing
services as long as they are compensated in some manner. Some file-sharing
companies are experimenting with advertising supported services (with part of
the advertising revenue going to pay copyright owners) while others are offering
paid monthly membership services.
Back to Top
What is the RIAA?
The RIAA
is the Recording Industry Association of America, a trade organization which
represents the interests of record companies in the United States. Among other
things, the RIAA seeks to protect its members legal rights (record companies
typically own the copyrights in sound recordings made by artists they have under
contract). In September, 2003, the RIAA initiated the first round of copyright
infringement lawsuits on behalf of its members against individual file-sharers,
suing 261 people. Other organizations representing copyright owners such as the
International Federation of the Phonograph
Industry (IFPI) and the Motion Picture
Association of America (MPAA) have also sued file-sharers and file-sharing
companies.
Back to Top
Why is the
RIAA suing file-sharers?
There are several reasons why the RIAA has chosen to file
lawsuits against individuals who are illegally making copyrighted music files
available through online file-sharing services. Sales of pre-recorded CDs have
declined by about 30% over the past 5 years. The RIAA believes that
file-sharing is the main reason for this dramatic decline in sales (a logical
assumption considering that the sales decline began shortly after file-sharing
started to become popular due to the original Napster file-sharing company). As a result of this sales decline,
the music industry is in dire straights - the 5 major record companies have laid
off thousands of employees and many independent record companies, music
publishers and retail stores are struggling to stay in business or have gone out
of business.
The RIAA has tried to combat file-sharing in several ways. At
first, the RIAA limited its legal actions to the file-sharing services, winning
lawsuits against Napster and Aimster. Although the RIAA suffered a setback,
initially losing a lawsuit against file-sharing services Grokster and Morpheus, the
U.S. Supreme Court ultimately
reversed this decision in
MGM
Studios v. Grokster, ruling in favor of the record and film companies.
In addition to their legal efforts, the RIAA (as well as other
organizations representing copyright owners such as the
Motion Picture
Association of America) have spent millions of dollars in
educational efforts, including television advertising campaigns, to
let people know that file-sharing of copyrighted works without permission is
illegal. In May, 2003, the RIAA sent over four million instant messages to
alleged copyright infringers using Kazaa and Grokster file-sharing software
warning them that their illegal file-sharing activity is not anonymous and that
they could be sued if they didn’t stop (according to the RIAA, these notices
were sent to virtually all of the 261 individuals in the initial round of
lawsuits filed in September, 2003). The RIAA also sent warning letters to many
universities since many students use high-speed university Internet connections
to download music using file-sharing software. In June, 2003, the RIAA filed
lawsuits against four college students who were operating file-sharing networks
over their universities computer networks, all of which were quickly settled.
Despite the RIAA’s efforts to make the public aware of the illegality and the
damage caused by file-sharing, use of file-sharing services continued to
increase. That apparently
convinced the RIAA that it had no choice but to begin suing individuals for
illegal file-sharing.
Back to Top
How can I get
caught illegally sharing copyrighted music?
Although many people seem to believe that their actions online
are anonymous, almost anything you do online can be traced. File-sharing in
particular is not a private type of activity. As the name "file-sharing"
implies, you are "sharing" files stored on your computer with other
file-sharers. Since you are making the files on your computer available to
others to download (unless you restrict the settings of the file-sharing
software you are using), other people (including organizations representing
copyright owners) can easily see what files you are sharing. Organizations such
as the Recording Industry Association of America (RIAA) constantly monitor
file-sharing activity in order to identify unauthorized uses of their members’
copyrighted works.
Back to Top
Is it illegal to have file-sharing software installed on my computer?
No. Since there are legal, non-infringing uses for
file-sharing software (e.g., sharing non-copyrighted files or sharing
copyrighted files with the copyright owner’s permission), it is not illegal to
have the software installed on your computer and to use it for legal means.
Back to Top
What are the penalties for illegal file-sharing?
Under copyright law, there are both
civil and criminal penalties although
criminal copyright prosecutions are relatively rare:
- Civil Remedies: A copyright owner (or an organization
representing copyright owners such as the RIAA) can file a civil lawsuit
against you for copyright infringement. If you are found to have
infringed, you will be liable for either
actual damages and the infringer's profits or
statutory damages of $750 (in rare cases reduced to as low
as $200) to $150,000 per infringement. For
example, if you made 1000 copyrighted sound recordings available through a
file-sharing service, the minimum statutory damages award would be $750,000
($750 times 1000 copyrighted works infringed). You might also likely be ordered to reimburse the copyright
owner’s
legal fees and costs in connection
with the lawsuit (which can easily run into the tens of thousands of dollars
and up for a lawsuit that goes to trial). In the lawsuits filed by the RIAA
against individuals for illegally file-sharing, so far
settlements have
reportedly averaged between $3,000 to $5,000.
- Criminal Liability: It is also possible that you could be
criminally prosecuted for copyright infringement in certain circumstances
(depending on the number and value of copyrighted works infringed).
Criminal copyright infringement can result in penalties of up
to 5 years in prison and $250,000 in fines for first offenses.
- In addition, if you are a college student and use your
university's computer network to illegally trade copyrighted files, you have
probably violated your college’s computer use policy and can be subject to
disciplinary action such as suspension of network access, probation,
suspension and expulsion. Similarly, if you are an employee and you use your
employer’s computer network to illegally trade copyrighted files, you may be
subject to disciplinary action. Since service providers (entities providing
Internet access) can be potentially liable for copyright infringements
committed by their users, many colleges and companies have policies that
strictly prohibit copyright infringement and some even monitor use of their
networks to detect and deter infringing activity.
Back to Top
If so many
people are file-sharing, how can it be illegal?
It has been estimated that well over 60 million people have
used file-sharing software. However, copyright owners are not required to sue
everyone who infringes their copyrights. It would be practically impossible for
copyright owners to pursue every illegal use of their works so copyright owners
selectively enforce their rights. Similarly, the fact that the police do not
give every driver who exceeds the speed limit a ticket, does not mean that they
can’t pull you over and give you one. Copyright owners are free to
sue certain file-sharers and not others in order to set examples and let people
know that there can be consequences. The fact that many people may be
violating the law does not excuse any one person's doing so.
Back to Top
Will I be sued if I download music, but do not share the music on my computer
with others?
Maybe. It is generally illegal to download copyrighted music
without the copyright owner’s permission since doing so violates the copyright
owner’s right to reproduce the copyrighted work. When you download, a copy (or
reproduction) of the file is made on your computer hard drive. So far, the RIAA
and other organizations have
generally limited their lawsuits to people who have made
large numbers of files (i.e., 1000 or more) available for others to download through file-sharing networks.
Apparently, the RIAA believes that targeting individuals who are sharing a large
number of files is the most likely way to reduce illegal file-sharing (which is
probably a logical theory since if there are much fewer files available through
file-sharing services, file-sharing activity may decline). Though the RIAA
apparently hasn't yet targeted anyone for merely downloading, it is
certainly possible that they (or other copyright owners) may do so in the
future. Consequently, although it is less likely that you will be sued if you do
not make files stored on your computer available for file-sharing, it is not
safe to assume that this will prevent you from being sued.
Back to Top
Can I
be sharing files without realizing it?
Yes. Most of the file-sharing programs are automatically set
up so that users authorize sharing of files stored on their computers with other
users. Consequently, whenever you use the file-sharing software, you are
allowing files stored on your computer to be shared. To prevent files stored on
your computer from being available for others to download, you must change the
file-sharing software settings. If you want to prevent files from being shared,
see the University of Chicago’s website on how to
disable peer to peer file-sharing.
Back to Top
What if I get sued for file-sharing, but I didn’t realize I was doing anything
wrong or illegal?
There is an old law school saying that ignorance of the law is
not a defense. Even if you really didn’t know that unauthorized file-sharing of
copyrighted works is illegal, you can still be held liable for copyright
infringement. To allow otherwise would encourage people to remain ignorant of
the law. However, it might be possible to assert that you are an innocent
infringer (i.e., you were not aware and had no reason to believe that your acts
constituted infringement) which can reduce the amount of money you’re liable for
to as low as $200 per work infringed. With all the publicity illegal
file-sharing has received in the media over the past few years, courts may be
unlikely to accept the innocent infringement argument since most people are
probably aware (or should be aware) of the illegality of unauthorized
file-sharing by now.
Back to Top
Does
file-sharing qualify as a fair use of copyrighted materials?
Not in most circumstances. Some people believe that
file-sharing constitutes a "fair use" of copyrighted materials.
Fair use use is a defense to copyright infringement which
applies in certain limited situations. Although it is possible that some
situations involving file-sharing might be fair use (for example, if I used a
file-sharing service to download a song in one of the copyright law classes I
teach for the sole purpose of educating students about copyright and
file-sharing), the vast majority of file-sharing would not. Although fair use
is a very complicated area of copyright law, in general it applies when a
limited portion of a copyrighted work is used for purposes such as criticism,
comment, news reporting, teaching, scholarship, or research. File-sharing, on
the other hand, is most commonly used solely for entertainment purposes. Some
people also believe that it is fair use to make copies of a recording you own
for personal use. Although this may be true, it is difficult to equate
file-sharing with personal use since file-sharing inherently involves the
potential for sharing with millions of other file-sharers all over the world. In
a lawsuit against file-sharing service Aimster, the court stated that the idea
that "ongoing, massive, and unauthorized distribution and copying of copyrighted
works somehow constitutes ‘personal use’ is specious and unsupported."
Back to Top
What
should I do if I’m sued for illegal file-sharing?
Since such a lawsuit is a serious matter that could end up
costing you a lot of money, you should consult with an attorney who
specializes in copyright law before doing anything else. A knowledgeable
attorney will want to analyze the facts of your particular situation to
determine whether you are likely to be found guilty of copyright infringement or
whether any defenses (such as fair use) might apply to your situation. If it is
likely that you have violated copyright law, an attorney can help negotiate a
settlement and hopefully limit the amount of money you’re liable
for as much as possible.
Back to Top
Have the RIAA’s lawsuits been effective in combating illegal file-sharing?
Although its too early to tell what the long-term effects of
the RIAA’s lawsuits will be, it seems that they may be having a limiting affect.
According to a survey by Nielsen/NetRatings, file-sharing using the Kazaa
software has
dropped by about 40% since the RIAA
filed its first lawsuits against college students. Additionally, public
awareness that it is illegal to use file-sharing technology to transfer
copyrighted music has clearly increased considerably as a result of the media
attention the RIAA enforcement efforts have generated. While estimates indicate
that the overall amount of file-sharing has not decreased and may have increased, its possible that the
lawsuits have at least limited the growth of illegal file-sharing, especially
since broadband Internet access has increased dramatically in recent years which
makes it much easier to download large files.
Back to Top
Is there any potential solution to the problems posed by file-sharing of
copyrighted works?
Maybe. Ultimately it is possible that file-sharing of
copyrighted music may be legalized by imposing some type of mandatory licensing
scheme under which file-sharing services pay fees that are used to compensate
copyright owners for the distribution of their works through file-sharing.
Theoretically at least, this could be similar to the licensing system that
exists for performances of songs by radio stations. Radio stations pay annual
blanket license fees to performance rights organizations (ASCAP,
BMI and SESAC
in the U.S.) which allow them to broadcast any music they want. The performance
rights organizations monitor performances and pay copyright owners of songs
(music publishers) and songwriters based on an estimate of the number of
performances. In theory licensing may be a workable solution, but there are many
issues that would need to be resolved (e.g., who pays, what should payment rates
be based on, who collects and monitors, etc.) before such a system could be put
in place. Although is not likely to happen quickly, it may be the best
compromise to allow file-sharing of copyrighted works to continue while
compensating the creators and copyright owners of the works being shared.
As mentioned
above, there are a few legal file-sharing services although it remains to be
seen whether they can become viable businesses.
Back to Top
Aside from being sued for copyright infringement, are there other things to
worry about from file-sharing?
Yes. File-sharing can pose several serious problems in
addition to the risk of being sued for copyright infringement. First,
computer viruses and
spyware are sometimes transmitted using file-sharing software. You should be very careful in downloading and opening any files if you
don’t know who they come from and what they contain. You should also make sure
you are running updated virus protection software on your computer. File-sharing
software is also sometimes used to pass along software programs known as "scumware."
Scumware can take over your Web browser and add links to Web pages which send
users to advertising sites or pornography sites. For more information, see
www.scumware.com.
Finally, in addition to music, file-sharing software has become a popular means
of distributing adult-oriented photographs and pornography so if you find such
content offensive or if you have
children using file-sharing software, this may be something to be
concerned about.
Back to Top
How can I obtain or
listen to music online legally?
Until recently, there weren't a lot of legal options for
obtaining music online. However, this is changing rapidly. There are a growing
number of companies that sell music online. Many online music services are
now obtaining licenses from copyright owners to legally make music available online. The following are just a few of the currently popular
sites (several others are set to launch before the end of 2003):
Additional
Materials
|
