"Will You Face The Music? Music Downloading 101"
Q: Is Downloading
Music from the Internet Illegal?
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
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
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
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.
I Get Sued by the RIAA for Downloading?
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
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 year old girl and other infringers even
recently agreed to be in a commercial that aired during the Super
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 www.riaa.org.
so I downloaded. But How will the RIAA Catch Me?
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
How will the RIAA Prove I Downloaded Songs or that I Didn’t Copy
them from a CD that I Legally Own?
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.
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.
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