Has anyone ever been sued for downloading music?

December 31, 2007 7:57 AM

Has anyone ever been sued for downloading music?

It seems to me that I keep hearing about people being sued for illegally downloading music, but it seems like it always turns out that they are actually being sued for making music files available for others to download because they are sharing them on a P2P network. Is it just that people are either sloppy with language or don't understand the difference between downloading and sharing, or has someone actually been gone after for downloading?

posted by squarehead to computers & internet (25 comments total)

I believe that most people are sued for allowing people to upload their music, because it is a lot easier to catch people doing that in the act. I remember some Newsweek article from a long time ago that was along the lines of, well we aren't saying you should do this, but just as an interesting fact if you turn off uploading it's virtually impossible for you to get caught. However, that was a long time ago and the technology may have changed. Also, I think it's because they can catch you with all your music collection, rather than just the one song you were downloading the moment they caught you.
posted by whoaali at 8:06 AM on December 31, 2007

I know of a business that received a fine and threatening letter because someone had downloaded a television show at the office.

Would the letter have escalated into a court case if ignored or disputed (it was paid,) I can't say. But there was a detection and resulting action from 'seedless' download.

Downloading unauthorized content is infraction of copyright, so I imagine it it possible. . .
posted by oblio_one at 8:11 AM on December 31, 2007

If you use bittorrent, you are uploading as you download. But I don't know of any case where the person was charged only with downloading.
posted by Pastabagel at 8:12 AM on December 31, 2007

It varies from jurisdiction to jurisdiction, but downloading music isn't illegal per se. If you can prove a particular person is offering a particular copyrighted track in public, then you can define an illegal act taking place. Someone downloading, however, could well be downloading a digital copy of a song or album they already own, and evidence would be required to prove it. So.. it's a lot cheaper and quicker to go after those who, supposedly, are actually performing an illegal act.
posted by wackybrit at 8:19 AM on December 31, 2007

People are sued for downloading -- only -- *all* the time. I work at a university, and I can name personally 5 students who have had to settle with the RIAA for downloading only. They weren't sued, but they were threatened with lawsuits. I'm sure you are mistaken.
posted by fourcheesemac at 8:20 AM on December 31, 2007 [1 favorite]

Wasn't there a series of commercials featuring teenagers who had been sued for using Napster a few years ago? I am not sure who sponsored the ads (for some reason I think it was Pepsi but I'm not sure). Anyway, in the ads they talk about getting zinged and charged for illegal downloads.
posted by 45moore45 at 8:24 AM on December 31, 2007

From what I understand, it's much more common at colleges than "in the wild."
posted by danb at 8:25 AM on December 31, 2007

Are you sure Fourcheesemac? My understanding is that if they go after people who are just downloading, it's much harder to be awarded enough money to make it worthwhile. When they go after uploaders, they claim insane damagers per file. For a download, it's hard to make a case for any more than the market value of a paid download of that song.
posted by gauchodaspampas at 8:57 AM on December 31, 2007

I've been watching the Recording Industry vs. The People blog for a while, and I cannot recall any examples of contested cases involving an allegation of downloading only. Usually there are allegations of filesharing, and as a practical matter it would be difficult for the RIAA to identify downloaders who are not also making the files available to others.
posted by grouse at 8:58 AM on December 31, 2007

Very little of this is specifically codified in the law: you go by inference and actual court cases.

In the US and most of the world it is absolutely illegal to download copyrighted content, most likely whether or not you own the source material. Attempts to commercially serve people digital copies of music they owned CD copies of from a centralized database were legally challenged and failed - but I don't believe it's ever been legally addressed from the consumer's side of the equation.

Courts upheld people's rights to format-shift their CDs to MP3 format. I don't believe that the "right" to make "backup" copies of CDs has ever been tested in court - but that is only accessing data from the original, purchased copy. I don't believe there has ever been a legal opinion on whether you are legally required to eliminate format-shifted or backed-up copies if you sell the original.

When you download a digital copy of anything copyrighted you make a copy of that intellectual property in direct violation of the copyright holder's exclusive right to reproduce that content. It's absolutely illegal if you don't own the material and could quite possibly be found illegal even if you do.

I think there are several things going on with the court cases you generally hear about. The first is, there is more money in people who make things available, because they are responsible for every copy of a track that gets downloaded. You can of course illegally download a lot of music, but the numbers are never going to add up like they will if you make a popular track available on a heavily-used file sharing network. Second, lawsuits are going to favor heavy users of file sharing networks and these people are likely to both upload and download. Finally, relatively few cases go anywhere in court. They either get settled or, when people mount a credible legal challenge, they get dropped so that the highly dubious legal tactics that are getting used to mass-sue people are not subjected to legal scrutiny or opinion. The high-profile cases are generally going to be the ones where the rights holders feel they have the broadest and most solid case - a person who is both distributing and consuming illegal duplications of copyrighted material is the better target.
posted by nanojath at 9:27 AM on December 31, 2007 [2 favorites]

In the university examples, it was usually through p2p software such as napster, bittorrent, limewire, bearshare, etc. Even if the mp3s were initially only downloaded, once the p2p software was able to advertise them, the RIAA would compile lists of shared songs per account and send them to the university with a letter threatening legal action against the student (who isn't known at the time)...or against the university if they failed to comply in identifying who's IP belonged to the account. For RIAA, universities were an easy target as they would tend to comply immediately. A few universities, like Harvard, would not disclose the name of the student unless served an official subpoena.

On the bright side a few music redistributors have stepped in and made a business out of legal distribution of music in a university setting. (iTunes University, Ruckus, etc...there was one named Ctraxx but I think they've been bought out by another company) These are usually set up in a way that the music is offered to the students for "free" or a very small charge. The university agrees to install a caching server, which is much kinder on bandwidth than p2p traffic (especially without a packet shaper). The music is DRM protected, but for some it's convenient enough to use instead of p2p.

Other than that, even though the nature of music sharing is always in flux, the RIAA still continues to look for the easiest targets they can find; the distributors...I really don't think they have bothered with anyone that has downloaded only (more specific...downloaded and have not made their collection publicly visible as p2p software will do).
posted by samsara at 9:31 AM on December 31, 2007

fourcheesemac: I think there may be some confusion here. People getting sued for using bittorrent and such are getting sued for uploading files. The tricky part is that most p2p networks upload the same file being downloaded. As you are downloading, you are offering the parts you have already downloaded for upload. Even if you are not seeding a new file for other users, you are still downloading. As far as I know, every case brought by the RIAA in these blanket lawsuits is over the uploading part and not the downloading part.
posted by MasterShake at 9:33 AM on December 31, 2007

Sorry. That sentence should have read:

Even if you are not seeding a new file for other users, you are still uploading.
posted by MasterShake at 9:34 AM on December 31, 2007

In the US and most of the world it is absolutely illegal to download copyrighted content, most likely whether or not you own the source material.

Nothing in U.S. copyright law is absolute. That statement is simply wrong. Unless you are limiting yourself to U.S. government web sites, most of the material you download legally will be copyrighted. But usually you have authorization. Even if you do not have authorization from the copyright holder, it may still be legal due to fair use in limited circumstances. Despite what the RIAA would have you believe:

• Downloading is not, by itself, illegal.
• Unauthorized downloading is not necessarily illegal.

I don't believe that the "right" to make "backup" copies of CDs has ever been tested in court

The RIAA is claiming that this is illegal and there is a case on it right now. Of course, not everyone agrees with the RIAA's self-serving interpretation.
posted by grouse at 9:36 AM on December 31, 2007

It seems to me that I keep hearing about people being sued for illegally downloading music, but it seems like it always turns out that they are actually being sued for making music files available

Your understanding is correct. However, more people download than upload, so the industry has used the miracle of "sloppy with language" as a PR strategy.
posted by rhizome at 9:39 AM on December 31, 2007

> I don't believe that the "right" to make "backup" copies of CDs has ever been tested in court

The RIAA is claiming that this is illegal and there is a case on it right now. Of course, not everyone agrees with the RIAA's self-serving interpretation.

This is not exactly what's happening there. What the RIAA did in this case was refer to CD rips as "unauthorized copies." This has been widely reported to mean the RIAA is saying that CD backups are illegal, when in fact all they are saying is that they are unauthorized.

The missing part of the story is that the Right Of First Sale says you can do whatever you want with what you bought without the copyright holder's permission, so while they say they are unauthorized copies, the law says you don't need their authorization anyway.
posted by rhizome at 9:45 AM on December 31, 2007

What the RIAA did in this case was refer to CD rips as "unauthorized copies." This has been widely reported to mean the RIAA is saying that CD backups are illegal, when in fact all they are saying is that they are unauthorized.

Reading the RIAA's brief, you are correct in that they refer to the CD rips as "unauthorized" rather than "infringing" or "illegal." However, I believe that they wish to spread the impression that they are illegal. For example, in Capitol v. Thomas:

At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.

Right Of First Sale says you can do whatever you want with what you bought without the copyright holder's permission

The first-sale doctrine does not mean that you can "do whatever you want." It certainly does not extend to making copies of the work. It is mainly useful because it means that after you buy most kinds of copyrighted works, you can transfer them to a third party without permission. Not if you keep a copy for yourself though.
posted by grouse at 9:59 AM on December 31, 2007

Here's an interesting interpretation of The First Sale Doctrine, especially when it comes to legal implications of digital media. The author's conclusion here is that digital phonorecords (mp3's etc) are not really covered under the Right of First Sale.

Although if you are the legal owner of the media, I'm sue you can use the Fair Use defense for personal copies made.
posted by samsara at 12:15 PM on December 31, 2007

Is it just that people are either sloppy with language or don't understand the difference between downloading and sharing, or has someone actually been gone after for downloading?

It's a misperception, but it's not sloppy. It's deliberately cultivated by the record companies in order to confuse people and scare scare them away from downloading
posted by delmoi at 12:32 PM on December 31, 2007 [2 favorites]

To me it sounds like the real question is "If I only download music and do not make it available, what are my chances of getting sued?"

The short and simple answer is: right now in the U.S. you are not 100% safe from legal action if you download copyrighted works without the copyright holder's consent. We could speculate all day long on law, risk and so on, bottom line is if 0.01% risk of dealing with RIAA lawyers is too much for you, then don't do it.

I'm not asserting this based on any law or legal precedent, I'm saying that if an RIAA lawyer wants to go after you and drag you through the mud financially -- even if they are in the wrong -- they can and have done it. They are not above mindlessly shoveling money into furnace of their intellectual property protection machine.

I do agree with others noting that downloading alone is not illegal, and the RIAA definitely wants everyone to believe that all media activity done digitally is illegal. Unless of course you are using a DRM'd to uselessness RIAA approved product for digital media use.

Just keep in mind that if they want to pick a fight you will have to pay up or gamble that the outcome is ruled in your favor. (Even if you win, they're still sore losers.)
posted by Stilus at 1:35 PM on December 31, 2007 [1 favorite]

Just read this from Instapundit. The man is being sued by the RIAA for copying music from his own CD to his own computer. Not for sharing, not for downloading.

Idiot luddite record execs will not stop until they have completely destroyed the industry (as they know it).
posted by trinity8-director at 6:48 PM on December 31, 2007

The court case is actually about him sharing, the CD question only comes up in passing. (Wired)
posted by muteh at 4:35 AM on January 1, 2008

IAAL and I am currently defending a number of these people. The lawsuits claim that they are downloading *and* sharing them on p2p networks.

The record industry finds these defendants on p2p networks, and I've not yet seen a case where someone was sued for downloading unless they were discovered sharing as well. The way the investigations currently work, it appears to me that there is no way to discover those merely downloading without sharing.

I don't have time to go into a lot of detail here, but if you're interested in learning more please contact me directly.
posted by mikewas at 8:20 PM on January 1, 2008 [1 favorite]

RIAA President claims that Pariser "misspoke" under oath:

That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry.

posted by grouse at 8:14 AM on January 5, 2008

Wired: "The RIAA thinks that ripping CDs is illegal." Despite recent claims to the contrary.
posted by grouse at 9:52 AM on January 10, 2008