Quick and Dirty Tips Podcasts

Episode Transcript

File Sharing Law
Episode 8: September 12, 2008

Hello, and welcome to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.

But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

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Today’s topic is file sharing and downloading on the Internet. Millions of Americans download media files via the Internet. But when are these downloads legal, and when are they not? The Quick and Dirty Tip is that if you would normally have to pay for it at your local Borders or Barnes & Noble, you must also pay for it on the Internet. You may not download it for free.

Under federal law, artistic works such as songs, movies, books, and photographs can be copyrighted. Once the work is copyrighted, the creator of the work gets a number of rights including the exclusive rights to copy and distribute it.

For example, U2 wrote and recorded an excellent album titled The Joshua Tree. They copyrighted their songs and the artwork used on the CD. Then you buy it. You can listen to the album, use songs in a mix CD or playlist on your iTunes, etc. But, you cannot make 100 copies and sell them on the street corner because you are infringing on U2’s right to do so. They made the album and copyrighted it, so they get to control its distribution.

The same idea applies to the Internet. You can buy The Joshua Tree, burn it to your computer, and listen to it. You cannot then charge people $1 each to download a song from you. Under the No Electronic Theft Act, you cannot give the song away for free either. You are, again, doing things that only U2 has the right to do: copy and distribute.

And this brings us to file sharing programs. File sharing programs are computer programs that let users grant public access to a folder on their computer. So, I could put in my public folder photos from my vacation to Hawaii, a short film that I created and copyrighted, and the songs from The Joshua Tree. Then, other users in the network could download the files to their own computers. Let’s look at each in turn:

My vacation pictures are fine because they are not copyrighted. I can share them with anybody I want, and anyone can distribute them to anyone else.

The short film I created is slightly different. Assuming that I own all the copyrights to it, I have rights to the film and can control how I distribute it. I have the right to post the film, and you can download it because I chose to make the episode downloadable for free. But, you do not have the right to redistribute the film by posting it on YouTube. If you downloaded the film and then sent the file to your dad, you are technically infringing on my copyright. This is true even though I do not charge you for the file.

U2’s album is a pretty straightforward example. Once I put the copyrighted songs up, I am distributing them, and anyone who downloads the song is effectively stealing it from U2 for the purposes of copyright law. This is true regardless of the number of songs I put up, the quality of the recording, and whether one person or a million people download the song.

To use the Border’s analogy, I could not burn 100 copies of U2’s album and sell it to Borders because only U2 has the right to do that. You would be stealing from Borders if you walked into the store and took the album without paying for it. Both of us are breaking the law and can face penalties.

The penalties for copyright infringement range considerably. For willful commercial infringement, the penalty can be as high as six months in prison and $250,000 in fines.

Initially, the government and copyright holders sued only the makers of file sharing programs, such as Napster and Grokster. But, copyright holders have been cracking down on individual users too. On September 8, 2003, the Recording Industry Association of America (RIAA), the trade group that represents the U.S. recording industry, filed 261 lawsuits against individual file-sharers. Among the 261 people targeted, four were college students who settled the claims for $12,000 to $17,500. That campaign has escalated recently, and on February 28, 2007, the RIAA launched a new campaign against illegal file sharing against 400 students on 17 university campuses.

These suits pit the central goals of copyright against each other. On one hand, we want artists to be able to maintain exclusive control over how they promote, distribute, and sell their work so that they have an incentive to create something that is unique and inspiring. On the other hand, we want the public to be able to access the music, and the Internet is a truly remarkable tool for doing so. For two disparate views on how the problem should be solved, please visit the RIAA’s website at www.riaa.com, and the Electronic Frontier Foundation’s website at www.eff.org.

In the end, the Quick and Dirty Tip is to be very careful with file sharing programs. Many listeners might be infringing on copyrights unintentionally by posting their music files in their public folders. To ensure that you do not unintentionally commit copyright infringement, please visit the EFF’s tips page.

The safest option is to purchase music legally, either at a music store, or online. iTunes is an excellent option where users can buy individual songs for $0.99. For a list of other sites where you can buy music, please visit the RIAA’s website.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. Be sure to check out all the excellent Quick and Dirty podcasts at QuickAndDirtyTips.com.

You can send questions and comments to legal@quickanddirtytips.com or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.

UPDATE:
Many listeners have written regarding the following statement:

“My vacation pictures are fine because they are not copyrighted. I can share them with anybody I want, and anyone can distribute them to anyone else.”

As many listeners have pointed out, this statement is not entirely true. The creator of an artistic work such as a photograph immediately gains some copyright protection simply by taking the photograph. My statement is inaccurate. I apologize to you, loyal listeners, and thank those listeners who wrote to correct me.

The point I intended to make is that I would have little practical legal recourse against you if I posted my own files publicly without indicating that these photographs were intended to have copyright protection. (For example, I could do so by putting a © symbol on the photograph, but such a designation is not necessary.) Should I choose to sue for copyright infringement, I would not be likely to win any significant monetary damages. I used the vacation picture example as a practical contrast to that of my own copyrighted movie or a popular band’s copyrighted music album. In doing so, I oversimplified and misstated the law.

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I encourage listeners to e-mail and comment for this exact purpose. I intend to convey accurate legal information while maintaining language that is not overly technical or confusing. Thank you for listening, and please continue to comment!

Legal Lad

Comments (12) for File Sharing Law | Subscribe to Comment

Philipp Says:
9/16/2008 6:07:05 AM

Hi, I usually appreciate your well researched episodes. However this one contained a few errors. 1. Copyright is automatic by the creation of the work. Therefore my vacation photos are automatically copyrighted works by the simple act of creating them. 2. You have completely missed the "Fair Use" clause of the copyright legislation. This is something organizations representing the recording industry like doing. But by missing it you are missing the balance in copyright law. As you know the "Fair Use" clause makes exceptions for all different kinds of uses such as reporting in news media, citation and the like. One such exception is the passing of a recording to friends. The problem currently posed to the courts is what defines a friend. Someone you have never met but interact often with might be considered a friend while someone you have physically met yet almost never interact with might be. As is obvious, this remains to be seen and decided by the courts. Never the less I think you have done your listeners a grave disservice by leaving out any mention of this querulous area of the copyright law. This is especially grave since it is one that is clearly within the realm of the question posed to you.

Laura Vogel Says:
9/15/2008 11:29:36 AM

I have a related question, and to ask it I'll pose the following hypo: John likes to watch "Law and Order" on TV, but he missed it last night. In order to see the show, he downloads a torrent file, loads the torrent file, and uses that file to download the most recent episode of "Law and Order," that aired last night all over the country (and likely, the world). John has not taken any meaningful part of the episode from a single source--the torrent file is a set of directions for the download program such that it knows what the final file (or episode of "Law and Order") is meant to look like upon completion. Thus, each person who has the complete file gives John a small piece--that is meaningless without being combined with all of the other pieces of the file that he gets from other users. Each person sharing the information is sharing only a PART of the file--a meaningless piece--and John is only downloading several of those pieces. As no one is sharing any copyrighted work (none of the pieces are copyrighted) is John (or anyone else) technically doing anything illegal? Is there case law on the issue of torrent files? Thanks!

Just Wondering Says:
6/27/2007 3:42:38 PM

I was just wondering how realistic is it that many cases will be thrown out due to the inability to prove that the IP address wasn't hacked into? Especially with all the wireless networks. I, myself, am on a wireless network and, for now, it is unsecured (my cheap router isn't compatible with Vista and I can't get it to be secured and still work). A friend who is a sys. admin. for a computer company told me that many cases are thrown out due to even the slightest possibility of hackers. What do you make of that?

Mitchell Below Says:
5/22/2007 6:37:11 PM

Legal Lad, I have a question related to your post on file sharing. Can bloggers use photographs that are freely downloaded from other sites, such as a newspaper, without fear of copyright infringement? Is a photo in the public domain just because the "Save Picture As" menu option works in Internet Explorer? Thanks, TribeScribe

Charlie Says:
4/16/2007 8:32:13 PM

“So, I could put in my public folder photos from my vacation to Hawaii, a short film that I created and copyrighted. . .” Since “copyright protection subsists from the time the work is created in fixed form” I don’t see the distinction between the photos and the short film. My understanding is that neither can be redistributed without your permission whether the copyright is “registered” or not. Also, when you put “the songs from The Joshua Tree” on your public folder aren’t you infringing on their copyright? I love you podcasts. Perhaps we could have another on copyrights, and others on patents, trademarks and trade secrets.

Lee K. Seitz Says:
4/2/2007 2:12:02 PM

I believe those sounds are supposed to be a gavel banging

Anonymous Says:
3/31/2007 2:55:03 PM

Sorry I know this isn't related to file sharing, but wasn't sure where to put this. The theme music: Could you please do something about your theme music? It is fine up until the end where there are three "shots" that remind me of gunshots and make my heart race. I find this noise to be distracting and alarming. Otherwise...interesting podcast.

Tim Says:
3/31/2007 3:33:00 AM

Just wanted to let you know...it's actually iTunes, not Itunes.

John Says:
3/30/2007 6:49:07 PM

You said "My vacation pictures are fine because they are not copyrighted. I can share them with anybody I want, and anyone can distribute them to anyone else. " This is an interesting statement. As is my understanding from frequent reading on sites such as the EFF, your vacation photos are, by default, copyrighted to you. You took them, you own their copyright. Unless you specifically copyleft them (or creative commons them) there can be no assumption of my freedom to take your vacation photos and do whatever I will with them. I think your omission of stating something to this effect is misleading. I put some of my vacation photos online for viewing of guests, family and friends, but in so doing, I do not give up my right of copyright. And I do not need to explicitly indicate my right to copyright on those images. I simply have the copyright, whether or not there is a copyright symbol or the word 'copyright' and the date. Perhaps some clarification is in order. I'd hate for people to take your advice and assume that anybody's vacation pictures would be assumed fair game by your listeners. Thanks for the podcast.

Lee K. Seitz Says:
3/26/2007 2:13:56 PM

Legal Lad, While I realize it was not the point of the file sharing episode, I'm disappointed to see what I believe to be inaccurate legal information in one of your podcasts. I'm referring to your statement that the vacation photos in your example are not copyrighted. Under current U.S. federal law, all works are copyrighted upon creation, regardless of whether they have a copyright notice, much less whether the creator filed for a copyright. In fact, some people believe it might not be legally possible to specifically designate a new work as being in the public domain. This claim is untested in court, but has given rise to programs such as the Creative Commons and Gnu Free Document License. It is true that until a copyright is applied for and granted, the creator cannot sue others for copyright violations, but I believe this application can be done retroactively. So just because you're not a professional photographer doesn't mean your holiday snapshots aren't copyrighted. But it is true that, because you took the photos, there are no restrictions from you sharing them on the Internet. I realize this was your point, but I believe saying they're not copyrighted is incorrect.

The Traveling Avatar Says:
3/25/2007 6:49:09 AM

Wow, this article makes me think about how much potential and deffinate infringement is going on in my little corner of cyberspace. From streaming music, to teeshirts with corporate logos, to Avatars built to look like cartoon characters... At some point the hammer is going to come down on us, isn't it? -The Traveling Avatar.

Rob Says:
3/12/2007 12:06:42 AM

Thank you for answering my question. I will take your advice and discuss matter this with my employer. You and the rest of the QD Now podcasters do amazing work! I look forward to listening to more great podcasts. Please don't let Grammar Girl read the last sentence, I suspect there is something wrong with "Looking forward to listening." :)