Copyrighted Songs: Is Downloading the Crime, or Possession? Does Deleting Matter?
February 12, 2005 6:23 PM   Subscribe

(RIAA-filter) Concerning downloading copyrighted material, is the act of downloading illegal, or just possesion? If you download a song and delete it, are you stil culpable? Of what offense? And is intent a factor?
posted by Edible Energy to Law & Government (18 answers total) 1 user marked this as a favorite
IMHO, I don't think the law is very clear about this. US law anyway, I believe in Canada for example ALL downloading is legal. I remember when the Metallica/Napster debacle sparked the whole thing, and some guy had ripped all of his Metallica CDs to his hard drive so he could listen through his computer. Metallica tracked those on his hard drive and sued him.

It's a big, grey area, but for the time being it looks like the RIAA/MPAA is going after bittorrent sites, leaving the little guys alone. For now. But there are so many little guys that they're gonna have to come up with a new strategy. And with the technology constantly morphing, they've got a big uphill battle for a long time to come.
posted by zardoz at 6:53 PM on February 12, 2005

In Canada it is explicitly permitted to copy an album in your possession, regardless whether you own it or borrowed it.

I suggest that everyone quietly ignore the RIAA. They are fighting a battle they can not win. The music economy paradigms have completely and irrevocably changed. The genie is out of the bottle and is never, ever going back in.

So long as you are reasonable in your music downloading, and are reasonable in ensuring the artists you truly enjoy receive your financial support (preferably music directly from them ie. at a concert or off the web), I don't think you can go very wrong.

Get rid of the digital music you don't actually listen to, and purchase the music you most listen to. Your pirated collection will be only so big, perhaps a couple dozen albums, and your paid collection will be multiple times larger. I have difficulty believing a judge is going to impose a harsh penalty when it's explained how the piracy leads to the sizable library of paid materials, and how this has in fact benefited the music companies.

Or at least that's how I think it'd play out in Canada. You US Americans have some of the wiggiest trial outcomes...
posted by five fresh fish at 7:18 PM on February 12, 2005

Download at your peril. Copyright law says:

ยง 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Does that answer your question?
posted by madandal at 7:32 PM on February 12, 2005

Has an RIAA lawsuit gone to trial, yet? I was under the impression that the AHRA put their claims on somewhat shakey ground, but no precedent on the consumer-side of the issue has been set because everyone's settling...
posted by rfordh at 7:35 PM on February 12, 2005

I'm not a lawyer but according to a link I saw on Apple's iTunes site, it looks like you can be sued for the act of downloading music. Then again, it is written from the POV of the Recording Academy [the Grammys people]. Technically, it is illegal to make a mix tape for your girlfriend. If you play a CD in public without paying ASCAP you're breaking the law.

Again, I'm not a lawyer but I think you still broke the copyright law if you made a copy of copyrighted work w/o the owners consent. If you later deleted it you're still on the hook for downloading it. However, the RIAA or other goons might go easier on you.

The RIAA has been focussing on the people who are sharing the files, not the people who are downloading since it is probably much easier to prove damages against someone who lets 100s of people download something. Also, the fear campaign helps keep more of the casual downloaders at bay.

The RIAA's amnesty program is still an option where you sign a statement saying you've deleted all the music you've downloaded and you'll never download anything from any less-than-legal sites.
posted by birdherder at 7:38 PM on February 12, 2005

what if i have a script that downloads a song, then deletes it, and repeats this 100,000 times? now what if 100,000 people did this 100,000 times? why, the entire music industry would be bankrupt in no time flat! the lost revenue would be immense! they would literally run out of that song!
posted by quonsar at 7:50 PM on February 12, 2005

Does that answer your question?

That summarizes the copyright holder's rights, it does not address the rights of non-copyright holders. I do not believe possessing a bunch of MP3's makes you guilty of anything providing you're not distributing them in any way (BitTorrent counts as distribution).
posted by Civil_Disobedient at 9:35 PM on February 12, 2005

This is not a great answer, but I'm compelled to note: Despite the fact the RIAA stands for "Recording Industry Association of America", there is a great deal of good music released without their oversight. They state that 90% of legitimate sound recordings in the US are released by RIAA represented labels. That 10% includes some good music. The RIAA radar searches by label/artist/UPC code to let you know if the RIAA represents any particular label or artist. The RIAA is a trade group, and as such does not always represent artist interests.
posted by Jack Karaoke at 10:20 PM on February 12, 2005

Best answer: The act of copying is an infringement. Downloading it to your computer makes a copy on your computer and is hence an infringement. Possessing copies on your computer is not, I believe, by itself an infringement yet would be pretty compelling evidence that you had made those copies on your computer.
posted by caddis at 3:37 AM on February 13, 2005 [1 favorite]

You also asked if deleting the song later erases your culpability. No, you have already made the copy. Intent is not an element of civil copyright infringement, but is of criminal copyright infringement. Here is how the DOJ views the matter.
posted by caddis at 3:53 AM on February 13, 2005

The Canadian law is not cut-and-dried. Part VIII, Section 80 of the Copyright Act states that private copying of music onto an audio recording medium is not an infringement. Computer hard drives are probably not "audio recording medi[a]" in this specific context, while CD-Rs of nearly all types and many analogue cassettes are. (iPods and the like were recently ruled not to be audio recording media.)

In any event, if the poster of the question is American, whatever happens in other countries' laws is of no interest to his problem.
posted by joeclark at 9:09 AM on February 13, 2005

Well, obviously. But we don't actually know whether the question-asker is American, Canadian, or Slobovian. One of the more irritating things about a good number of AskMe questions, IMO.
posted by five fresh fish at 9:41 AM on February 13, 2005

Downloading music is not illegal It's the uploading that causes the problems. With napster, every person they caught was actualy sharing those mp3s, wether they knew it or not, because napster automaticaly re-shares files that it downloads. Most p2p programs do, and that's the only way you can get in trouble.

Think about it. If you purchased a pirated book, would you be breaking the law? No, but the printer would be. If you download an MP3, you've done thing wrong.

That said, copyright holders have some pretty out-there ideas about what copyright actualy means.
posted by delmoi at 10:46 AM on February 13, 2005

delmoi, what is your legal justification for that statement? The mere fact that they have not gone after mere downloaders does not mean it is legal. It is an infringement as you are making a copy, a right reserved to the copyright holder. I generally think of illegal activities as being criminal, and I am not sure if downloading a single song would be criminal, although I have not really read through that DOJ document I linked to above.
posted by caddis at 11:14 AM on February 13, 2005

Legal is a nearly useless term here. Start with criminal instead. To my non-lawyer understanding, pure downloading with no quid pro guo and no breaking of encryption is never a crime.

But that doesn't mean you won't get sued. In america, there are no limits to what one individual may sue another for. I can sue you because I find the profile of your nose offensive. I won't win, but I can sue you for it.
posted by NortonDC at 11:48 AM on February 13, 2005

I think that caddis is right: downloading a copyrighted song for which you haven't paid is making a copy. But the issue, surely, is whether or not an RIAA bastard stopping by your hard drive could tell you'd downloaded it from a P2P and not just made a copy from a CD you bought, owned, and then lost. So then the question would be whether or not you downloaded it from a P2P or Torrent service - or have an ISP - which keeps / kept records of who downloaded what, where from, and when.

Regarding the P2P networks, then, which ones keep user and/or connection logs? If so, why? Are they obliged to by some law somewhere? How, exactly, does someone figure out you downloaded that song by that artist on that date?

All that said, five fresh fish has the bigger picture: to stop free filesharing will be impossible from here on, and sooner or later laws will have to change to recognise that. Besides which, in about 10 years' time, enough economic data should be available to prove that record companies aren't getting poorer or dying at a faster rate then they otherwise would have. That should help quash a lot of cases. In a sane world.
posted by paperpete at 4:27 PM on February 13, 2005

Think about it. If you purchased a pirated book, would you be breaking the law? No, but the printer would be.

In purchasing a pirated book, you have not made a copy of the copyrighted work. In downloading, you do make a copy. caddis is correct.
posted by DevilsAdvocate at 9:28 AM on February 14, 2005

Response by poster: Just for the record, I'm from the US (how can you Canadians cede the term "American" to us?) and I apologize for my original non-disclosure.

In any event, if the poster of the question is American, whatever happens in other countries' laws is of no interest to his problem.

Actually, I'm as interested in other countries laws as my own. My interest is almost entirely academic, as I have no fear of litigation.
posted by Edible Energy at 8:42 PM on February 14, 2005

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