|
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. Most people use these services to search for music and video files in
order to download (copy) them to their own 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.).
Back to Top
What is copyright?
Copyright is actually a group of exclusive rights afforded by law to authors
of many types of artistic and creative works such as songs, sound recordings,
movies and other audiovisual works, literary works, visual artworks (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. There are certainly legal uses for file-sharing software. For
example, many independent musicians chose to make their music available on
file-sharing networks to try to generate interest in their music (even though
they receive no payment from file-sharing of their music). 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. Most
copyright owners will likely chose not to do so since they do not receive any
payment from file-sharing of their works.
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
rights of reproduction and distribution
under U.S. copyright law. Although some people still seem to believe that
file-sharing of copyrighted works is not illegal, every court that has addressed
this issue so far has clearly indicated that it is. Even in the music and movie
industries’ lawsuit against the Grokster file-sharing service, where the court
ruled that Grokster was not liable for infringements by users of its
file-sharing software, the court stressed that the individual users are guilty
of copyright infringement (MGM
v. Grokster - Note: pdf file - requires
Adobe Reader).
Back to Top
Is file-sharing ethical?
Some people believe that file-sharing of copyrighted works
without authorization is just like stealing (i.e., just like shoplifting a CD
from a record store). Under this view, file-sharing deprives recording artists,
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. 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. By analogy, if I
want a new car, but believe the model I want is overpriced, would I be
entitled to steal it?
- "File-sharing is a way to sample music in order to decide
whether you want to buy it on a CD." However, from a legal perspective, 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. Large companies such as the 5 major record labels have
certainly been hurt by illegal file-sharing (which has resulted in layoffs of
thousands of mployees, less artists being signed to recording contracts,
etc.). However, 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).
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.
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 three 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 Napster). 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. However, in a lawsuit filed against
file-sharing services Grokster and Morpheus, the court ruled that Grokster and
Morpheus were not liable for the infringements committed by their users. The
difference between the Grokster/Morheus decision and the court rulings against
Napster and Aimster was due to differences between the file-sharing software.
Grokster and Morpheus are decentralized file sharing systems which allow files
to be transferred directly between users rather than through any computer
servers operated by Grokster or Morpheus. The Grokster/Morpheus ruling basically
says that the file-sharing service is not liable even though their users may be
using it for illegal purposes. This case is currently (as of October, 2003)
being appealed (MGM v.
Grokster - Note: pdf file - requires
Adobe Reader).
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 high-profile 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, combined with the Grokster/Morpheus legal ruling apparently
convinced the RIAA that it had no choice but to begin suing individuals for
illegal file-sharing.
Back to Top
What is the status of the RIAA lawsuits
against file-sharers?
As of October 1, 2003, 52 of the 261
individuals sued by the RIAA have reached
settlements.
In addition, 12 individuals whose identities were subpoena'd by the RIAA also
settled although lawsuits had not yet been filed against them. Since the terms
of these settlement agreements are confidential, the amounts of money paid by
these file-sharers to settle the claims against them have not been disclosed. In
addition to any settlement payments, the file-sharers must also destroy all
illegally acquired files and CDs they've made containing infringing files. One
of the lawsuits has been voluntarily dismissed by the RIAA since the elderly
woman sued claimed she had never downloaded music files (although it may be
possible that someone else using her Internet connection might have done so).
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
If I paid a fee for a file-sharing service, does that allow me to trade
copyrighted music files legally?
No. Some file-sharing services such as KaZaa sell access to an
upgraded version of their software. Apparently, some people who have purchased
the upgraded version of Kazaa believed that the payment covered the music being
shared. This is not true. When you sign up for Kazaa’s upgraded version,
there does not seem to be any notification that you are responsible for what you
are trading which seems a bit misleading since consumers could assume that the
payment covers the music files available through use of the software. So far,
none of the file-sharing services have obtained licenses to legally offer music
from the vast majority of copyright owners such as record companies represented
by the RIAA and music publishers.
Back to Top
Should I delete the music files I’ve downloaded to avoid being sued?
Although deleting illegally acquired files may make it less
likely that you’ll be sued since those files would no longer be available for
sharing with other file-sharers, you can’t change what’s already been done and
deleting files will not erase any record of your file-sharing activity that
already exists. If the RIAA already has evidence of illegal file-sharing,
deleting or destroying that evidence will not prevent you from being sued. If
you were sued, the fact that you voluntarily deleted the infringing files might
be something you could use in an effort to negotiate a settlement as quickly and
cheaply as possible.
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 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 guilty of copyright
infringement, you will be liable for either
actual damages and the infringer's profits or
statutory damages of $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 $200,000
($200 times 1000 copyrighted works infringed). In all likelihood, the
statutory damages award would be higher since the $200 per infringement is
only possible in situations involving "innocent infringement" (i.e., you were
not aware and had no reason to believe that your acts constituted
infringement). You will 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 suit that goes to trial). In the lawsuits filed by the RIAA
against individuals for illegally file-sharing, so far settlements have
reportedly been as low as $2,000 and as high as $19,000.
- 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 copyight 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 the 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. Similarly, copyright owners can choose to
sue certain file-sharers and not others. The fact that many people may be
violating the law does not excuse your doing so.
Back to Top
Is
the RIAA going to continue suing file-sharers?
Yes. The RIAA has said they are planning on filing several
thousand copyright infringement lawsuits against individual file-sharers. The
RIAA has also stated that, unlike the first round of 261 lawsuits in September,
2003, future lawsuits will not be announced publicly (although they will likely
be reported on in the press).
Back to Top
How can I find out if I’m going to be sued for file-sharing by the RIAA?
If you have illegally traded copyrighted music files, it is
possible that you will be sued for copyright infringement. Although there’s no
way to know for sure whether the RIAA is going to sue you until you are served
with a complaint, you can find out if the RIAA has requested a subpoena from
your Internet service provider by using the
Subpoena Database Query Tool at the
Electronic Frontier Foundation.
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 (at least
as of October, 2003), the RIAA has limited its lawsuits to people who have made
over 1000 files 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 will likely decline). Though the
RIAA has not yet filed suit against 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.
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 is the RIAA’s Clean Slate amnesty program?
The RIAA has initiated the Clean Slate amnesty program for
U.S. residents who believe that they have illegally downloaded or distributed
copyrighted sound recordings using file-sharing software. This program allows
people to sign an affidavit basically stating that they have deleted all
copyrighted sound recordings illegally downloaded though file-sharing services
and will not illegally download copyrighted sound recordings in the future. In
return for signing this affidavit, the RIAA agrees not to sue or assist in any
copyright infringement lawsuits related to illegal downloading prior to the
affidavit’s date. For additional requirements, see the RIAA’s
Clean Slate Program Description (pdf file - requires
free Adobe Reader).
Back to Top
Should I sign the
RIAA’s Clean Slate amnesty program?
No. Although the RIAA may have adopted the Clean Slate Program
as a way to provide some degree of security to people afraid of being sued, it
is probably not advisable to sign a Clean Slate Program affidavit for several
reasons. First, a signed affidavit is a written admission of copyright
infringement and it is not advisable to make such an admission without first
consulting with an attorney to evaluate the situation. Second, the amnesty
program only provides limited insulation from being sued for illegal
file-sharing. Although the RIAA agrees not to sue you, this does not mean you
can’t be sued by other copyright owners (or organizations representing them).
For instance, there are generally two separate copyrights involved in each piece
of recorded music. Record companies (such as those represented by the RIAA)
usually own the copyright in the sound recording (the particular recording of
the song) while music publishers typically own the copyright in the underlying
songs. Consequently, although the RIAA can promise not to sue you, there is no
way the RIAA can prevent music publishers or record companies who are not RIAA
members from doing so.
Back to Top
What
should I do if I’m sued by the RIAA for illegal file-sharing?
Since such a lawsuit is a serious matter that could end up
costing you thousands of dollars, 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 with the RIAA 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 are already having an effect.
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. According to a survey by
Peter D. Hart Research Associates, 61% of people polled in August, 2003 admitted
that they were aware that file-sharing of copyrighted works was illegal (up from
37% in June).
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, 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.
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 are sometimes transmitted using file-sharing software. Usually, these
viruses require you to download a file containing the virus and then activate it
manually. 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 have
children using file-sharing software, this is certainly 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. Unlike the file-sharing companies,
these services have obtained licenses from copyright owners to legally make the
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 RESOURCES ON FILE-SHARING & COPYRIGHT LAW
Tech
TV's Music Wars
The U.S. Copyright
Office
Music Downloading, File Saring & Copyright: A Pew
Internet Project Data Memo
(pdf file - requires
Adobe Reader)
NEWS ARTICLES ON FILE-SHARING
RIAA Hits Students Where It Hurts
RIAA Press Release: Recording Industry To Begin
Collecting Evidence And Preparing Lawsuits Against File "Sharers Who Illegally
Offer Music Online
RIAA Press Release: Recording Industry Begins Suing P2P
File Sharers Who Illegally Offer Copyrighted Music Online
Rude Awakening for File Sharers
Schoolgirl Settles With RIAA
File-Sharing Lawsuits: Are You Next?
Peace Offering for File Traders?
RIAA Lawsuits Reducing File-Sharing
RIAA Sues iMesh File Trading Firm
Lawsuits Damp Down P2P Audience
P2P Networks Want To Play Nice
Senator Seeks Lower Downloading Penalties
Innocent File Sharers Could Appear Guilty
|
About The Author |
| This FAQ list has been put
together by David J. Moser, an attorney with over ten years of experience
in intellectual property and entertainment law. Moser is also a
professor at the Mike Curb College of Entertainment & Music Business at
Belmont University where he
teaches courses in Intellectual Property Law, Legal Issues in the Music
Industry and Music Publishing. He is also a recipient of a Fulbright
Scholar Award which involved research on intellectual property piracy in
the Philippines and the author of "Music Copyright for the New
Millennium" published by ProMusic Press. |
 |
|
