Copyright Follies.. Part 3... Issue #1

As I stated in part 2:
Issue #1: This issue can be described in a multitude of different ways but I think it's easiest to look at the illegality of downloading. This issue is pretty cut and dry but it's helpful to have some basic definitions and concepts explained. So I'll explore some copyright law including fair use.

For our purposes, let's lay out the definitions for what is copyrightable and how the law defines a copy. First, U.S. copyright law( I saw U.S. law because our law is not applicable outside of the U.S., so the RIAA can't go sue someone in Russia) applies "to works of authorship fixed in a tangible medium form which the work can be perceived directly, or indirectly with the aid of a machine." (17 USC 102) Audio works can be particularly confusing because of the different copyrights that can be created. One copyright is created when the song is composed(the composition) and another is created when the song is recorded(the sound recording). The RIAA is typically concerned with the sound recording beacuse this is what is published and where royalties are garnered. So a sound recording is copyrightable (and in fact has a copyright) the moment it is recorded to audio tape, digital audio tape or a hard drive (to list a few examples).

Once a copyright is created, (a copyright should be registered. but isn't absolutely necessary for its enforcement) then the issue shifts to what counts as a copy of that sound recording. According to U.S. copyright law, a copy is a "material object in which a work is fixed by any method now known or later developed, and from which it can be perceived, reproduced, or otherwise communicated directly or with the aid of device."(17 USC 106(1)) With respect to this issue, a copy is made when one downloads a copy from the internet whether it be through P2P, the IRC, or the like. In fact this is what worries the RIAA the most, is that all copies can be a perfect, exact copy of the original.

Let's summarize where we are at. First, sound recordings are copyrightable and when you download you are making a copy. This matters because it is a key element of copyright infringement. So for a copyright infringement case there are two key elements. First whether the defendant copied the first work and second, whether the copy was a wrongful appropriation. (Nimmer, Information Law 4-8). So when you download a song a copy is being made and if that copy hasn't been paid for or authorized by license, the copying was wrongful. So from the RIAA's point of view these cases are pretty cut and dry.

Now the concept of fair use is much ballyhooed in downloading circles as a means for justifying copyright infringement. Unfortunately, as most things are it isn't that simple. For some flavor to this issue Wendy Seltzer, from the Electronic Frontier Foundation (EEF), was asked in an Engadget interview whether P2P has even been declared as NOT being fair use. Her reply:

It’s really hard to talk about “P2P file-sharing” in the aggregate - some of it is authorized, some of it is fair use, and some of it is infringing, depending on the particular circumstances. Downloading songs to use snippets in a classroom presentation, to sample before purchase, or to save time ripping your own CDs, might be fair, while downloading to substitute for purchase would clearly not be.

So in limited circumstances there might be fair use but fair use is in great flux. Many cases are NOT brought to court because litigating using a fair use defense is fraught with danger. See Fred von Lohmann, from EFF, said this in an article from Law.com:

Fair use is generally understood as an affirmative defense. This leaves a fair user at a distinct disadvantage in litigation. First, until a copyright owner sends a concrete threat of litigation, the fair user may find it hard to get into federal court for lack of standing. Second, even if a threat letter creates standing sufficient to support a declaratory judgment claim, the copyright owner can moot the case at any time by issuing a covenant not to sue. And no matter the outcome, the fair user will likely be stuck footing her own attorneys' fees. (via EFF)

Are some things still legal? Yes, you can still legally record music from the radio, you can listen to music online(and it is my belief record that music since royalties are being, though the RIAA doesn't agree with that for other thoughts see here), and you can make a mix cd for a friend. You can probably even share a few songs between friends via e-mail. This much is clear, downloading and distributing music online is illegal in most cases. This is why the RIAA has such an easy time settling cases. They are on firm legal ground and very few defendants have the monetary means to litigate a case. So with the RIAA on firm legal ground, why isn't this the end of the story? I believe, along with many others, that there is a better way to stem downloading without resorting to mass lawsuits. In the next question, I want to explore some of these issues.