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U.S. Appeals Court Rejects Music Downloaders Fair Use Defence
On December 9, 2005, the U.S. Court of Appeals for the Seventh Circuit upheld a district court’s summary judgment against a Chicago woman who had downloaded copyrighted music over the KaZaA file-sharing network. The decision (BMG Music et al. v. Cecilia Gonzalez) is one of the earliest appellate level victories by the recording industry in the U.S. in its campaign against individuals who download music from the Internet.
While the defendant admitted that she had downloaded over one thousand copyrighted songs, she argued that this was “fair useâ€, an exception to copyright infringement in the U.S. that corresponds to some extent to “fair dealing†in Canada. Specifically, the defendant contended that she was simply sampling music to determine what CDs she wished to buy. She compared this to “time-shifting†in Sony Corp. of America v. Universal Studios (Betamax) where it was held that recording a television program and watching it later is fair use. The defendant also argued that downloading copyrighted works is fair use because it increases the potential market for, or value of, those works.
The Court rejected these arguments, stating that a downloaded song retained on a hard drive for future listening is a direct substitute for a purchased copy. The Court distinguished downloading from “time-shifting†on the basis that musical works on the KaZaA network are not licensed for a single transmission to, and use by, authorized users, unlike the broadcasted television programs at issue in Betamax. The Court also rejected the argument that downloading is fair use because it promotes sales of copyrighted works, noting that media such as radio also promote sales, while authors and publishers still collect royalties.
For a copy of the decision, visit:
BMG Music et al. v. Cecilia Gonzalez >