TRADEMARK: Everything You Need to Know about Trademark Protection and Registration"

COPYRIGHT: "Why You Can't 'Copyright' Your Song If You Have Already Written It!"

BUSINESS "Takin' Care of Business: A Band's Basic Business Guide"

"Will You Face The Music? Music Downloading 101"

MUSIC DOWNLOADING:  "Will You Face The Music? Music Downloading 101"

Q:  Is Downloading Music from the Internet Illegal?

 A:  Generally, yes under copyright law.  The United States Copyright Act states that copyright protection applies to sound recordings. The act states that infringement occurs when another party exercises the rights that have been exclusively granted to the copyright owner by the law.  The right to distribute the sound recordings (e.g. in the form of compact discs or digital audio transmission over the Internet) is a right given only to the copyright holder of the sound recordings, which is usually the record label who invested in the production of the sound recording. 

 On the other hand, in some situations it may be legal to download songs from the Internet.  One such example is when the owner of the copyrighted sound recording has given you permission. Many artists today allow audience recording of live performances, and allow fans to trade these recordings or make them available for free download as long as there is no commercial sale or gain involved.  Also, currently, websites like iTunes, Napster, Musicmatch, Rhapsody, MusicNet, MusicNow, Liquid Digital Media and Buymusic are currently licensed by the record labels to distribute music files online; therefore it is not a violation of the copyright act to download from these websites.  Of course, you will have to pay for each song you download, currently about $1.00 a song or less.   

 Q:   What is a Peer to Peer Network?

 A:  Peer-to-peer technology allows Internet users to interact on the same level with each other.  This is different than Napster, which used a central database. Users sent requests to Napster’s central database, which in turn searched its song files to find the song  requested.  The user could then download the song.  The software downloaded by the peer-to-peer users, on the other hand, directly connects the downloader to other users, de-centralizing the control of the network itself.  The courts have ruled that Napster was violating copyright law; however, the peer-to-peer websites, such as Kaaza, were not.

 Q:    Can I Download a Song for Educational Use?

 A:    In some situations, it may be considered “fair use” to download a song when it is solely for educational use.  However, the law is not clear as to where one can draw the line.  For example, if you were to try to sell a sound recording you do not own for some educational purposes, it would likely not fall under these fair use exceptions.  Thus, one of the factors in deciding if something is a “fair use” would be if you make money.  However, this is a tricky call to make, and it is highly advised to seek advice from a copyright law attorney before determining if your intended use of a song (or any working including a book, design, art, poem, etc) is a fair use.

 Q:   I’ve heard of the RIAA.  What is it?

 A:    “RIAA” stands for  the Record Industry Association of America.  It is a recording industry trade organization that represents the largest of the United States record labels, including Sony, Bertelsmann, Vivendi Universal, Time Warner Inc. and EMI.  It is also the company that certifies Gold, Platinum, Multi-Platinum, and Diamond album sales awards, which are based on the number of albums sold. 

 The RIAA has recently declared war on file swapping services and individuals involved in online swapping of music files.  The RIAA started instant-messaging individual users in April 2003 to warn them not to steal music by downloading online.  On September 8, 2003 the RIAA filed 261 lawsuits against individuals who share music files on peer-to-peer networks.  By September 29, 2003 , 64 of the suits had settled.   By late January 2004, the RIAA had filed a new round of copyright infringement lawsuits against 532 individual computer users who have been illegally distributing copyrighted music on peer-to-peer networks.  In addition, it recently hired the director of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to help it investigate online infringement.

 Q:    Will I Get Sued by the RIAA for Downloading?

 A:    The RIAA seems to be been suing only the most egregious of music swappers.  The RIAA has generally launched attacks against individuals it suspects of using peer-to-peer networks illegally to swap at least 1,000 music files on the Internet, and appears to be going after file-swappers who have downloaded more than 10,000 music files.  However, the law would allow it to go after an individual after only one download.  It is unlikely that the RIAA would do so, of course, as it probably would be impossible to file lawsuits against all of the millions of individuals who have downloaded at least one song.  Yet, the RIAA seems determined to go after as many infringers as possible, so it is possible, although not probable that you will be sued if you are just a minor infringer.  

 Q:   What Happens if the RIAA Sues Me?

 A:    Copyright law states that if you infringe on someone’s copyright (e.g. by downloading it without their permission) you can be fined by the government and be ordered to pay money in the form of civil damages the owner of a copyright.  The provisions that the RIAA is suing individuals under can allow for astronomical damages—as high as $150,000 per violation (e.g. per download!).  However, courts will often award significantly smaller amounts, even as low as $250.00.  In addition,  while violations to U.S. copyright laws can carry hefty fines and large civil damages awards, the RIAA settles most lawsuits out of court for less than $5,000.  The RIAA has sued nearly 400 individuals for copyright violations since September, and most of those cases have been settled for amounts likely in the rage of $2,500-$7,500.  Some people have also been forced to make statements admitting to or describing their use, and one fifteen year old girl and other infringers even recently agreed to be in a commercial that aired during the Super bowl.

 Q:   What Should I do if the RIAA Sues Me?

 A:    If you have downloaded illegally and are sued, you have several options.  First, your best bet is to discuss your case with an attorney experienced in Entertainment law and/or copyright litigation.  An attorney may be able to advise you on certain rights that you may have, including fair use defenses or innocent infringement defenses.   In addition, an attorney may be able to help you negotiate a lower settlement than you can on your own.   

 Q:   Can I prevent the RIAA from Suing Me?

 A:   Obviously, the best thing you can do is stop downloading.  But if you already engaged in infringing actions, or if you think you might get sued, you should also review the RIAA’s “Clean Slate Program”, an amnesty program for file swappers.  Individuals (not businesses) are eligible for the program if they have 1) not yet been sued, 2) agree to destroy all illegal files they own, 3) did not engage in any commercial downloading (e.g. tried to make money), and 4) agree not to download illegally in the future or allow other to do so on their computer.  The RIAA has cleared over a thousand people through this program.  More information is available at

 Q:    Okay, so I downloaded.  But How will the RIAA Catch Me?

A:  The RIAA has used a provision of a recent law called the Digital Millennium Copyright Act (“DMCA”) to issue subpoenas to Internet service providers (ISPs) to uncover the identities of individual Internet subscribers who are downloading.  It then used the information from the subpoenas to file lawsuits against individual file swappers.  The DMCA gives copyright owners the ability to obtain these "informational" subpoenas without having ask a judge.  By August, 2003 the RIAA had won approval for more than 1,300 subpoenas and obtained the identity of computer users suspected of illegally swapping music files online.  In a December 2003 ruling, however, a court said the DMCA protected ISPs from that subpoena power if their networks were simply the conduit for illegal downloading because the law did not anticipate the emergence of peer-to-peer file-trading, having only been developed recently in the wake of Napster.  Without the DMCA subpoenas, the RIAA must file formal lawsuits against file-traders identified only by their online monikers or as “John or Jane Does”. It then must petition the a judge to issue a subpoena to the defendant's ISP to uncover the real identity—a process that has recently made it more difficult to uncover individual identities. The RIAA, despite this setback, still has pledged to continue its fight and file claims against the individuals.    

 Q:    How will the RIAA Prove I Downloaded Songs or that I Didn’t Copy them from a CD that I Legally Own?

A:  The RIAA often can tell whether you copied a song from a store-bought CD or from a peer-to-peer network.  The RIAA has probably led the way in advancing  techniques for proving infringement by the individual users.  For example, the industry recently disclosed its use of a library of digital fingerprints, called "hashes," that it stated could identify MP3 music files that had been traded on the Napster service as far back as May 2000.  The FBI and other computer investigators commonly use this technique in hacker cases.  By comparing the fingerprints of music files on a person's computer against its library, the RIAA can often determine whether someone recorded a song from a legally purchased CD or downloaded it online from someone else.  The RIAA also stated that it is examining “metadata tags”, which are hidden snippets of information embedded within many MP3 music files.

 Q:  Are the Pay Download Sites Working to Deter Illegal File Swapping?

 A:  By Christmas 2003, more than 17 million digital tracks had been purchased through the paid services iTunes, Napster, Musicmatch, Rhapsody, MusicNet, MusicNow, Liquid Digital Media and Buymusic.  The RIAA’s legal attack on music downloaders appears to be having the effect it was meant to have.   According to a report released Sunday January 4, 2004 , the percentage of Americans who download music online has been sliced in half.


Leon Bass is an attorney in the Central Ohio area who practices entertainment law. This article could not been written without the generous assistance of Jason Hayward, a former law student at The Ohio State University College of Law and a former law clerk in Lee’s office.

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Disclaimer:  Of course, as an attorney I have to have a disclaimer: DON’T RELY SOLELY ON MY ADVICE IN THIS COLUMN!  LawNOTES is only intended to be a general overview of some legal issues and cannot possibly be complete in the amount of space we are dealing with. It is NOT intended to replace the advice of a competent attorney.  Therefore, please consult an attorney to discuss your rights, and always, please use sound judgment when making your own decisions, with or without the assistance of an attorney.  

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