Gnutella Forums - Should Downloading Music really be free for everyone to read please!

Over the past few years, we’ve been asked just about every question imaginable about downloading music. We try to answer all of them and present here answers to the ones we get most often. To see the Q & A on our current lawsuit against Napster, click here.

Q. Does uploading music on the Internet hurt anybody? Isn’t it promotion for the artist?
A. When you post digital music files on the Internet for anyone to take and keep, it’s not promotion but distribution. It's up to the artist and copyright owner to decide how their music will be heard, distributed and promoted. Though most people do not realize it, only about 15 percent of all releases sell enough copies to make a profit and those record sales support the other 85%, including those from new and emerging artists. When someone decides to take distribution into his or her own hands, that decision can impact not only the artist whose music is being taken, but the artists that may have been supported by those sales. It’s also important to remember that sales of recordings don’t just support the musical artist. Piracy cheats producers, composers, sound engineers, studio musicians, publishers and vocalists out of their share of royalties on which they generally depend for their livelihoods.

Q. Is uploading music from a CD that you own onto an Internet site for other users to download a violation of copyright law?
A. Yes. Owning a CD means you own one copy of the music, and the U.S. record industry believes you should be able to make whatever personal use you choose. For example, you may make a compilation recording (on tape or on a CD) to use in the car or while exercising. But it’s a very different matter – and clearly neither legal nor fair – to make a copy of that CD or even one song available on the Internet for others to take.

The sound recording copyright holders own the music itself, and have a number of rights under current federal law that include the right to control the reproduction, distribution, adaptation, and various digital transmissions of their works. Therefore,

Creating unauthorized MP3 sites by copying sound recordings to a server for other people to download and/or offering such recordings for download is a violation of copyright law.
Making tapes or CDs of recordings downloaded from the Internet without permission from the copyright owner is a violation of copyright law.

Q. Isn’t it within my First Amendment right to post recordings to my site for other people to download?
A. The First Amendment does not grant a right to infringe copyrighted works.

The RIAA and the music industry as a whole are dedicated to protecting the First Amendment rights of Americans, including the rights of artists to be heard, even if their lyrics are offensive to some. If you are interested in learning about First Amendment issues that are currently facing artists, you should check out the Freedom of Speech section.

Q. What can happen to me if I am caught infringing a copyright law?
A. If found guilty of copyright infringement, federal law provides for civil remedies that may include substantial monetary damages and liability for attorney fees incurred in bringing an action. Criminal penalties may be imposed if someone willfully infringes a copyrighted work, even if no profit is derived from the activity. Thus, people who barter, trade or even give away copies of infringing works may still be criminally liable and subject to prosecution. The No Electronic Theft (NET) Act specifically outlaws this activity on the Internet. Criminal penalties for copyright infringement include up to six years imprisonment, up to $250,000 in fines, or both. Students may also be subject to disciplinary action at their school, by the school’s own faculty, if it is determined that school computer policies have been violated.

Q. What is the relationship between offering music files for download and the Fair Use Doctrine?
A. The Fair Use Doctrine allows for limited use of copyrighted materials without obtaining permission from the copyright holder, but the limitations are significant. Typically you can use quotations from copyrighted books and articles and musical compositions for education, comment, criticism and other such uses. Whether the court allows you to reproduce, distribute, adapt, display and/or perform copyrighted works under this doctrine depends on many circumstances and includes the following determinants:

the nature of the use (i.e., was it for commercial purposes or not);
the length of the excerpt (i.e., how much of the whole work; does the excerpt use the most distinctive part);
how creative the work is (and sound recordings are always creative); and
how the use will impact the market for the original work.

Q. How can I legally put music on the Internet?
A. The answer to this question may depend on how you propose to use these works. For example, if you plan to offer a webcasting service, you may be eligible for a statutory webcasting license whereas if you plan to offer an interactive service, you will need to obtain rights from each copyright holder. See the Licensing section for more information.

In general, if you want to reproduce, distribute, and digitally transmit recorded music online, you will likely need licenses from several organizations and companies. For example, for the copyright in the sound recording (the song as it’s recorded), you’d need a license from the copyright owner, typically the record company, or for an artist owned company, from the artist. For the copyright in the musical composition (the song itself), you might need a "DPD" (or Digital Phonorecord Delivery) license from an organization such as the Harry Fox Agency and you might need a license from the performance rights organization that represents the songwriters, typically BMI, ASCAP, or SESAC. You can usually find who you’d need to contact by looking at the liner notes from the CD of the artist you are interested in reproducing and/or distributing.

Q. Is it illegal to post music on a website for downloading even if I don’t charge for it?
A. Yes. The question of whether or not you are charging does not impact the answer to whether or not you are violating copyright law. If you don't hold the copyright, you can't sell or even give away unauthorized copies of the sound recording without permission. In addition, the No Electronic Theft ("NET") Act, which amended Section 506 of the Copyright Act, clarified that even if a site barters or trades infringing materials and doesn’t charge or otherwise make a profit there still may even be criminal liability. Additionally, you may face civil liability, including statutory damages of up to $150,000 per copyright infringement, even if you’re just giving away the files.

Q. Doesn’t the First Sale Doctrine allow me to share my own music?
A. The First Sale Doctrine does allow you to resell or give away the copy of the music that you bought, but it does not allow you to distribute copies of that music by making it available on an Internet site for download, or sending digital files to friends. For example, if you buy a CD and then choose to give that CD to your friend, that’s ok. But you can’t take that CD and make infinite copies available on the Internet – while you keep the CD or a copy for yourself.

Q. Can I offer music for download from my site without permission from the copyright owners if disclaimers are posted on the site that say "promotional use only," "buy the CD," "educational use only," etc?
A. No. If you reproduce and/or distribute sound recordings without a license, you are violating copyright law no matter what your website says.

Q. If I just download sound recordings, is it still a copyright violation?
A. Yes. It is a violation if you upload or download full-length sound recordings without permission of the copyright owners. You should assume other people's works are copyrighted and can't be copied unless you know otherwise.

Q. The digital music files I upload/download are less than CD-quality. Doesn’t this make it OK to copy and trade?
A. The quality and file format of a recording has nothing to do with whether a copyright is infringed. Whether the sound quality is good or not is beside the point. To make reproductions and/or distributions of sound recordings, regardless of sound quality, you need the authorization of the sound recording copyright owner.

Q. If I upload or download a sound recording and leave it on my drive for less than 24 hours, am I still liable for copyright infringement?
A. Whether you upload or download a sound recording for 24 hours, 24 minutes or less has nothing to do with whether or not you are violating copyright law.

Q. If a website doesn't display a copyright notice, is the music still copyrighted or is it okay to reproduce, distribute, or download?
A. In the U.S., almost every work created privately and originally after March 1, 1989, is copyrighted and protected whether or not it has a notice.

Q. Is offering downloadable sound files of recordings that are no longer in print still a violation of copyright law?
A. Copyright law grants the owners of sound recordings the exclusive right to reproduce and distribute their recordings. Thus, even where a recording may be difficult to find or is out of print, it is illegal to reproduce and/or distribute it (even as a sound file and for free) without the permission of the sound recording copyright owner. The term of a musical work copyright is the life of the author plus 70 years, after which the work becomes a part of the public domain. The term of a sound recording copyright is generally 95 years, after which the work becomes a part of the public domain.

Q. Does moving an unauthorized music site to a server outside the U.S. make it legal?
A. U.S. law may well apply when the uploading and/or downloading takes place in the United States, even if the server is physically located in another country. Additionally, the copyright laws of foreign countries are, in many cases, similar to those in the United States. U.S. trade law allows the Office of the United States Trade Representative to take action against those countries that fail to provide adequate and effective copyright protection and market access.

Q. Is it illegal to link to other sites that have unauthorized sound files, even if my own site doesn’t offer any?
A. Liability for copyright infringement is not necessarily limited to the persons or entities who created (or encoded) the infringing sound file. In addition to being directly liable for infringing conduct occurring via the site, a linking site may be contributorily or vicariously liable for facilitating copyright infringement occurring at the sites to which it links.

Contributory liability may be found where a person, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another. A link site operator may be liable for contributory infringement by knowingly linking to infringing files.

Vicarious liability may be imposed where an entity has the right and ability to control the activities of the direct infringer and also receives a financial benefit from the infringing activities. Liability may be imposed even if the entity is unaware of the infringing activities. In the case of a linking site, providing direct access to infringing works may show a right and ability to control the activities of the direct infringer and receiving revenue from banner ads may be evidence of a financial benefit.

Q. What is the relationship between digital download devices (such as the Rio) and the Audio Home Recording Act? Didn’t the RIAA lose that court case?
A. The Audio Home Recording Act (AHRA) of 1992 covers devices designed or marketed for the primary purpose of making digital musical recordings and provides these devices, and their manufacturers, with some protection from contributory copyright infringement claims. The RIAA recently settled its case against Diamond Rio on this issue, but the outcome of this proceeding does not impact the rights of copyright holders to protect their music.

When digital recording devices such as the DAT and Minidisc became available to the public, consumers had for the first time the means to make very high quality recordings of the music in their collections, and to make copies of those copies with virtually no decrease in sound quality. To compensate for the fact that some level of piracy would result, and to provide the manufacturers and consumers immunity from a contributory copyright infringement liability suit, the AHRA required manufacturers of digital recording devices and media (such as DAT tapes) to: (1) register with the Copyright Office; (2) pay a statutory royalty (to the copyright holder or artist) on each device and piece of media sold; and (3) implement serial copy management technology which prevents the copying of copies. To learn more about the royalty system of the AHRA, see the section on AARC.

When digital download devices (such as Diamond’s Rio player) were introduced, the RIAA felt they should be considered digital recording devices under the AHRA. This finding would make them subject to the same laws – and would also provide them with the same protection from contributory copyright infringement liability. The U.S. Court of Appeals for the Ninth Circuit found that, since these devices were considered to be computer peripherals, that made them multipurpose devices (such as general computers and CD-Rom drives), which are not covered by the AHRA. This means that manufacturers are not required to pay royalties or incorporate serial copyright management technology protections. However, it also means that neither the device manufacturers nor the consumers who use them receive immunity from a suit for copyright infringement.

Q. Does the RIAA want to make MP3s illegal?
A. No. MP3 is simply a compression technology. Its use has had a very positive impact in terms of allowing the music industry to discover consumer interest in online music. At the same time, the RIAA has had some concern with this technology, arising from the fact that it can be used to distribute pirated copies of music. The RIAA does not endorse – or veto – the technologies that its members use to promote and distribute their recordings. Several of our members have used different formats to electronically distribute their music. MP3 is a 1992 technology and it appears likely based on current industry trends that its use will be supplanted by newer, faster, higher quality technology that also offers the ability to protect copyrights when desired.

Q. Does the RIAA want to censor the Internet?
A. The RIAA – and its members – are committed to the widespread use of the Internet as a new means for reaching music fans. The Internet offers exciting ways to do everything from helping music fans discover new artists to actually delivering that music to them. Record companies are excited about, and are actively pursuing, the vast promotional opportunities of the Internet. For more information about what RIAA members are doing online, visit Member Labels Online. At the same time, the RIAA will always be committed to fighting music piracy, whether it is online or off.

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