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March 2, 2005
Torts, Retorts, and Distorts
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.
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