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March 2, 2005

Torts, Retorts, and Distorts

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Posted by Alan Wexelblat

I love having readers who are smarter than I am. Yesterday I erroneously asserted that downloading was legal. In particular, downloading is not the act that the RIAA has sued P2P users for. I have been holding this misconception for some time, powered initially by a story I blogged back in September of last year: Jonathan Pareles' Critics Notebook (NYTimes, sorry, requires registration. Use dbonito/privacy if you like). In this article, Pareles leads with the claim that "Downloading music from the Internet is not illegal." This is both true, and false.

As commenter James pointed out, the Ninth Circuit decision in Napster highlighted two infringements in the Napster service: right of distribution and right of reproduction. To date, the Cartel's jihad has been against users who violate the distribution right. This is a far easier tort to claim against. As Pareles' column points out, there is a ton of free, legal music available on the Web for download. You also have a very hard time proving that a song on someone's computer was in fact downloaded. People rip CDs that they own legally, for example. So mere possession isn't good evidence.

But, it is illegal to download music that is not being provided for free by the rights-holder. So, to be precise, I should have said that "the act of downloading is itself not illegal - the illegality comes in making a copy of a work you don't have permission to copy." Sometimes, downloading involves making such a forbidden copy.

Thanks to everyone who wrote to me pointing out my error or urging a clarification.

Comments (17) + TrackBacks (0) | Category:


1. James on March 2, 2005 2:18 PM writes...

While I appreciate your correction, this has nothing to do with being "smart." Rather, it has to do with whether one gets his knowledge of copyright law from a music critic at the NY Times, or from reading actual statutes, court cases, and works of legal scholarship.

As debates over copyright law have moved from obscure legal journals into the popular consciousness, it has been increasingly common for non-lawyers to offer their views on copyright law. There is nothing wrong with that per se; certainly everyone has the right to contribute to the debate. But the fact that one didn't go to law school (or make a serious study of copyright law on his own) doesn't grant one a license to get copyright dead wrong, as was the case with your original post.

Here's a modest proposal: when making a statement about the state of copyright law, cite to a statute or case law. (No, the NY Times, blog postings, and EFF press releases don't count.) I admit it's not always easy to search for legal materials using free web sites, but one can almost always find what one's looking for with a little effort.

By the way, when you write in this post, "To date, the Cartel's jihad has been against users who violate the distribution right," you incorrectly imply that uploaders violate only the distribution right (17 USC sec. 106(3)), and not the reproduction right (sec. 106(1)). While I have not seen any of the actual complaints recently filed against individual uploaders, I believe that the record companies have taken the position that uploaders violate the reproduction right by their involvement in the downloaders' acts. I'm not aware that any court has adjudicated such a claim.

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2. Chris Brand on March 2, 2005 2:39 PM writes...

Now you need to clarify it again with the words "in the US". :-)

In Canada, downloading is (alomst certainly) legal (see BMG Canada Inc. and others v. Doe and others), even if unauthorised, because we pay a levy on blank audio recording media and we haven't yet ratified the WIPO Copyright Treaty and the WPPT. Uploading is till a grey area, despite what the press would have you believe. The same case said, essentially, that the music companies didn't present any evidence that illegal uploading had occurred.

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3. Alexander Wehr on March 2, 2005 4:57 PM writes...

This still does not clear up weather downloading is illegal.. allow me to elaborate.

It is still unclear weather the downloader or the person uploading is the actual maker of the copy. Presumably the downloader would not be able to reproduce the work if the uploader were not offering it. The request for the copy is sent from downloader to uploader.. and the uploader initiates the transfer.. i personally think the uploader.. or distributor.. is the one who is also making the reproduction. Thus downloading is legal.. but a networking expert may be needed on this one.

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4. James on March 2, 2005 5:55 PM writes...

Alexander Wehr:

There is no question that (unauthorized)downloading of a music file is a violation of the reproduction right, 17 U.S.C. sec. 106(1), because the downloader causes a copy to be made. What a "networking expert" says doesn't really matter at this point. As the Ninth Circuit said in Napster, "Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights." Both the downloader and the uploader could be liable for the same act of infringement, as they both take affirmative acts to effect it.

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5. Alexander Wehr on March 2, 2005 6:10 PM writes...

well, another question would be that of the audio home recording act of 1992.. specifically it's definition of digital sound recordings.. and section 1008 of that law prohibiting actions against persons or instituitons for noncommercial reproduction.

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6. James on March 2, 2005 6:28 PM writes...

No luck. Here's what the Ninth Circuit in Napster said about the AHRA:

A. Audio Home Recording Act
The statute states in part:
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

17 U.S.C. § 1008 (emphases added). Napster contends that MP3 file exchange is the type of “noncommercial use” protected from infringement actions by the statute. Napster asserts it cannot be secondarily liable for users’ nonactionable exchange of copyrighted musical recordings.
The district court rejected Napster’s argument, stating that the Audio Home Recording Act is “irrelevant” to the action because: (1) plaintiffs did not bring claims under the Audio Home Recording Act; and (2) the Audio Home Recording Act does not cover the downloading of MP3 files. Napster, 114 F. Supp. 2d at 916 n.19.
We agree with the district court that the Audio Home Recording Act does not cover the downloading of MP3 files to computer hard drives. First, “[u]nder the plain meaning of the Act’s definition of digital audio recording devices, computers (and their hard drives) are not digital audio recording devices because their ‘primary purpose’ is not to make digital audio copied recordings.” Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1078 (9th Cir. 1999). Second, notwithstanding Napster’s claim that computers are “digital audio recording devices,” computers do not make “digital music recordings” as defined by the Audio Home Recording Act. Id. at 1077 (citing S. Rep. 102-294) (“There are simply no grounds in either the plain language of the definition or in the legislative history for interpreting the term ‘digital musical recording’ to include songs fixed on computer hard drives.”).

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7. Alexander Wehr on March 2, 2005 6:53 PM writes...

In other words.. a loophole which undermines the intent of the AHRA simply because congress did not forsee the use of computers as multimedia devices.

Weather or not the intent was there.. the AHRA made noncommercial sharing of audio tapes legal.. so by that ruling it's suddenly not legal when it involves wires? that is what i call BS.

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8. James on March 2, 2005 7:09 PM writes...

Call it "BS" all you want. But the intent of the AHRA was never to legalize the widespread, unautorized downloading of music over the Internet. (It was passed in 1992, after all, when, as far as I'm aware, no downloading of music was going on, and the "Internet" was only a gleam in Al Gore's eye.)

It's pretty safe to say that Congress never would have passed the AHRA in the first place if it believed it was authorizing the widespread downloading of copyright-protected works.

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9. Alexander Wehr on March 2, 2005 7:12 PM writes...

additionally.. if computers dont make digital audio recordings.. and an MP3 does not meet the definition of a digital audio recording.. than how can they claim copyright infringement?

it looks to me like the court in napster was buying into rhetoric and reaching for a means to surpress this activity which is fundamentally no different than that made legal by the AHRA.

either mp3's are sound recordings and subject to the AHRA or theyre not sound recordings and are not subject to copyright..

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10. Alexander Wehr on March 2, 2005 7:17 PM writes...

i was in my pre teen years on 1992.. i can tell you right now that there was "widespread, unauthorized" copying and distribution of music over dual cassette decks with very little quality loss.

I only had once bought cassette throughout that time, and few of my friends had many more. we taped off radio and copied one another's tapes.. and it was all legal under the ahra.

i urge you not to try to paint the advent of p2p as something different from what was already going on.

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11. Josh Stratton on March 2, 2005 7:42 PM writes...

An AHRA argument is simply not going to work. The statutes were closely examined in the Diamond case, and while terms like 'digital audio recording device' are used in that law, they're also defined in such a way that they don't include computers or their components. Given that this avoids RIAA et al from getting royalties based on the sale of computers, and avoids computer makers from having to implement forms of DRM, this is not a bad thing.

Since AHRA doesn't define what is infringement, but only provides a sort of exception, we still need to look at other sections, such as 106, as to whether or not some conduct is infringing.

As for who is culpable, you may like to read the Marobie-FL v. NAFED case, which basically pins liability for reproduction made in the course of downloading on the downloader. The logic boiled down is that the downloader is a factual, and the proximate cause of the download. It's not as though things are being downloaded onto his machine against his will. His is the hand ultimately responsible, even if he has to direct other people's computers to undertake automatic processes in response to his download request.

Lastly, I refer you to the oft-overlooked by laymen section 101. Its definitions of what copies and phonorecords are, are key. They're tangible objects, in which the work is fixed. Thus you cannot move a copy through a wire. Instead, you can only move intangible works through the wire, and fix them into some tangible medium at the end. Following the famous MAI v. Peak decision, RAM is such a tangible medium. Hard drives would be another. Since computers necessarily reproduce works all the time, just in order to display them, this has led to cases such as Intellectual Reserve v. Utah Lighthouse Ministry in which it was held that it could be infringing for people to look at a web page, since they were reproducing the work in the process of looking at it, and such reproduction was infringing.

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12. Alexander Wehr on March 2, 2005 8:02 PM writes...

Yes.. what you say is true.. but there are still "royalties" paid on cdr's. since the vast majority of cd-r's are recorded by computers, then why do we pay this tax if the AHRA does not apply to computers?

also.. "Lastly, I refer you to the oft-overlooked by laymen section 101. Its definitions of what copies and phonorecords are, are key. They're tangible objects, in which the work is fixed. Thus you cannot move a copy through a wire. "

while this is true in a sense.. the wire must carry the copy.. and the wire itself is tangible.. otherwise.. i find it hard to justify a case against downloading over the internet because youve said yourself that it is not tangible until it is fixed on the other end, thus monitoring the transfer and collecting ip addresses does not provide actual evidence of fixation.

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13. Alexander Wehr on March 2, 2005 8:10 PM writes...

additionally.. under such definitions of reproduciton and distribution.. the current RIAA tactic of searching and/or downloading from p2p shares is not adequate for evidence of uploading offenses either..

1. the riaa and affiliates were authorized to download them

2. under the case law you profess, the RIAA and their affiliates are the ones making the copy

3. Since they are the ones making the copy.. the alleged unauthorized distributor has made no affirmative efforts to distribute.. except to authorized recipients for the purposes of the situaiton.. who own or are licensed to obtain the work.

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14. Josh Stratton on March 2, 2005 9:55 PM writes...

Regarding royalties on CDRs, I believe you will find that they're only due for Audio CDRs, not the more common Data CDRs. Of course, they're basically interchangable, and plenty of people use the latter in place of the former. Still, AHRA would only offer protection to the users of the former. If you hunt around at record stores, Best Buy, etc., you'll usually find them, specially labeled, at a higher price, and in a different part of the store, probably near the blank Minidiscs, casette tapes, etc.

Regarding copies, it is irrelevant whether a wire can be a copy or not; RAM and hard drives are distinct tangible media either way, and are not fraught with problems as to who is liable. Since any unauthorized, unexcepted, act of reproduction of copyrighted works is infringing, a plaintiff only really needs to find one.

Regarding evidence, remember that we're generally talking about civil copyright infringement, where the evidentiary burden is a preponderance of the evidence. That is to say, more likely than not, or put another way, 51% to 49%. If there is a case where the only issue is whether the work was actually downloaded, and it can be shown that the other machine made a request for the download, was sent the information requested, and was owned by the defendant, an individual person, do you think that there is at least a 51% chance that a copy was actually made? If so, then the evidence is sufficient. We are usually not talking about criminal cases where the burden is much higher. Absolute proof isn't necessary -- just the smallest likelihood. (An example of how criminal and civil cases can turn out differently would be the two OJ cases.)

Finally, regarding uploading, there are several different prohibited courses of action in copyright. 17 USC 106 lists most of them. Reproduction is one, but distribution is another. It doesn't matter whether you distribute a work to the copyright holder; it's still unlawful because you have no right to distribute it at all (barring exceptions, etc.). The mere fact that the copyright holder asked you to really isn't enough to indicate authorization IMO, any more than selling drugs to a DEA officer would be okay, even if he's legally able to buy them in the course of an investigation. It's just not a credible argument, and no court would go for it.

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15. Alexander Wehr on March 2, 2005 10:48 PM writes...

"The mere fact that the copyright holder asked you to really isn't enough to indicate authorization IMO, any more than selling drugs to a DEA officer would be okay, even if he's legally able to buy them in the course of an investigation. It's just not a credible argument, and no court would go for it."

so a court won't go for a loophole in the definition of authorized distribution, but a court "will" go for the loophole in the definition of the AHRA.

this seems like capricousness and subjectivity to me rather than interpretation of the intent of congress.

Copyright law should have been more clear.. but now the rhetoric is too thick to cut through with a chain saw.. so a rewrite now would only intrench the most vocal interest groups.

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16. Alexander Wehr on March 2, 2005 10:55 PM writes...

also.. the dea example is flawed.

a copyrighted work is perfectly legal for a record executive to posess in normal circumstances, not simply in an investigation. who knows.. maybe they find the internet to be a more convenient source than requesting a copy from their LA offices.

A dea agent however wouldn't be allowed to keep stocks of cocaine in his home for use off duty.

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17. Chris Brand on March 3, 2005 12:39 PM writes...

I had the same question about authorisation regarding the Canadian "CRIA" case I mentioned above. I was surprised that the defendants didn't raise the issue of "MediaSentry was paid by the CRIA to download these songs, so clearly the copies made were authorised and no infringement occurred". Perhaps this argument was made, but it didn't appear in the ruling. Mind you, the judge threw out all the "evidence" that infringement had occurred anyway...

In the USA, you'd still fall foul of the "making available" right, regardless of whether the copying itself was legal.

While I was there, I found the part I referred to in my earlier reply, too :
Para 25 says :
Thus, downloading a song for personal use does not amount to infringement. See Copyright
Board of Canada, Private Copying 2003-2004 decision, 12 December 2003 at page 20.

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