The US Court of Appeals for the Seventh Circuit last week held that unauthorized downloading of copyrighted music amounts to theft, and is not "fair use" under the copyright laws.

The case, BMG Music v. Gonzalez, pitted a record company (and holder of copyrights for many songs) against an individual who had downloaded >1,000 copyrighted songs using the KaZaA peer-to-peer file sharing network. In the initial trial, Ms. Gonzalez was convicted of having downloaded copies of 30 copyrighted songs, and a statutory minimum penalty of $750 per intentionally copied work was imposed (30 x $750 = $22,500).

On appeal, Ms. Gonzalez claimed that her download of the songs was "fair use" according to one or both of two theories. First, she claimed that the downloads were within the scope of an earlier US Supreme Court decision relating to "time-shifting" video recordation of televised programs. Second, she claimed that the downloads merely represented a try-before-you-buy approach to sampling music prior to purchase, and that such an approach should be considered by the Court to be a "fair use." The Appeals Court rejected both of these theories.

With regard to the "time-shifting" theory, the Court pointed out that television programs (the subject of the Supreme Court's time-shifting suit) were broadcast with authorization for their recipient to view the program at least once, and that the recipient of such programs were therefore authorized recipients. The Court contrasted that situation with Ms. Gonzalez's download of copied songs, pointing out that such downloads were not authorized. Ms. Gonzalez therefore never had an authorized version of the downloaded songs - either for immediate use or later use, and the Supreme Court's time-shifting doctrine did not apply.

Turning to Ms. Gonzalez's 'try-before-you-buy' theory of fair use, the Court indicated that the choice of the method of distribution of musical works belongs to the owner of the rights in such works. Remarking on the fixed nature of a song downloaded in its entirety (i.e., even if a downloader does not buy the song, a copy remains on the downloader's machine) and the coincidental decrease in music sales with increasing use of file-sharing, the Court found no equitable reason to upset the decision by an owner of rights in a musical to distribute that work in only controlled, authorized ways.

The lower court's verdict against Ms. Gonzalez was upheld.

Unauthorized downloaders of copyrighted music files should be aware that many suits by music companies against downloaders are successful, and that absent a compelling justification for doing so, it appears that such verdicts are not likely to be overturned by appellate courts.

A copy of the Appeals Court's decision can be read at:
www.ca7.uscourts.gov/tmp/OP0J5265.pdf

Be careful out there!

Gary D. Colby
Intellectual Property Attorney