Is Downloading Illegal? Wanna Bet?

by on March 20, 2007 · 6 comments

For a lawyer-in-training, watching the commenters on Slashdot, Digg, and similar techie forums debate fine points of law is a special treat–finally, a group that knows less about that law than I do. Faster than you can type “IANAL,” some dope has posted that the income tax is unconstitutional, that breaking into government computers cannot be lawfully prosecuted, or that one has a good case against Comcast when the cable installer came a day late.

Non-lawyers often treat the law as intuitive; does it seem like this is illegal or improper?, they ask. The answer, of course, frequently justifies their own behavior.

Thus I learned from Digg today that “Downloading Pirated Anything Is NOT Illegal.”


Here’s the argument:

I read every bit of information I could find, including case law. I studied the DMCA. Since then I have studied the NET Act. I have studied everything I could find. Guess what? I could not find a single line in any act that said that downloading anything was illegal, or even anything that could be construed to mean it….

I submit that there’s a legitimate reason there is no law covering the downloads. I believe it’s because you cannot know for certain that a file is pirated until it is in your possession. File names mean nothing. Fake music files planted on Kazaa prove it. Fake video files planted on torrent sites prove it. Even non-pirated files get named with titles that could be misconstrued as being pirated. I also believe that intent is insufficient to come to the conclusion that a person is attempting to download a pirated file.

The analysis concludes with this: “If you can cite a reference to an actual law that says anything to the effect that downloading a pirated file of any kind is illegal, you will be my blogging buddy for life.” (Doesn’t that sound a lot like tax protesters’ challenges?)

As a service to Diggers, here are a couple cites that may be of interest.

Probably the best place to look first is the law. 17 USC s. 106 states:

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;…(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;…

It seems pretty clear that subsection (3) probably covers file sharing uploaders. Similarly, (1) may cover downloaders.

Let’s see what the copyright office has to say:

Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner’s exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney’s fees incurred by the copyright owner to enforce his or her rights.

Of course, that’s not law, but the Copyright Office folks have probably thought this through a bit. Then again, some will probably accuse them of being in the RIAA’s pocket.

Let’s look to case law. The Ninth Circuit’s Napster decision (239 F.3d 1004, 1013-14) contains this paragraph:

The district court further determined that plaintiffs’ exclusive rights under § 106 were violated: “here the evidence establishes that a majority of Napster users use the service to download and upload copyrighted music…. And by doing that, it constitutes-the uses constitute direct infringement of plaintiffs’ musical compositions, recordings.” The district court also noted that “it is pretty much acknowledged … by Napster that this is infringement.” We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders’ exclusive rights: the rights of reproduction, § 106(1); and distribution, § 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights. Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights.

The Supreme Court essentially adopted this application of the law in its Grokster decision (545 U.S. 913, 936-39). The Court looked to the defendants’ own advertisements that users could download copyrighted files “to prove by a defendant’s own statements that his unlawful purpose disqualifies him from claiming protection.” (id. at 938). In other words, defendants’ promotion of an unlawful activity (downloading) was proof of their unlawful purpose.

A shrewd attorney could argue that this aspect of the opinion is dicta–that is, inessential to the outcome of the case–because file distribution by uploaders (which is certainly infringement) was also present. Good luck!

And just to be clear, IANAL–yet.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    A downloader is in receipt of:
    1) A copy of a work no longer protected by copyright, OR
    2) An authorised copy of a work manufactured by a publisher (web server), OR
    3) An unauthorised copy manufactured by a pirate (large scale infringer).

    Since when is being in receipt of an unauthorised copy a copyright infringement on the part of the recipient?

    Your only hope to incriminate the downloader is to suggest that the recipient incited or commissioned the infringement…

    The industry is trying to claim that ‘making available’ is an infringement. Can it also claim that ‘taking what is made available’ is also an infringement?

    No doubt a new crime of ‘being found in possession of an unauthorised copy’ is on some senator’s wish list, but it ain’t law yet.

  • http://www.techliberation.com/ Tim Lee

    Andrew,

    I think it would be accurate to say that no one has ever been prosecuted simply for downloading files, would it not? I’m pretty sure the RIAA has thus far focused all of its legal firepower on unloaders and middlemen.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    A downloader is in receipt of:
    1) A copy of a work no longer protected by copyright, OR
    2) An authorised copy of a work manufactured by a publisher (web server), OR
    3) An unauthorised copy manufactured by a pirate (large scale infringer).

    Since when is being in receipt of an unauthorised copy a copyright infringement on the part of the recipient?

    Your only hope to incriminate the downloader is to suggest that the recipient incited or commissioned the infringement…

    The industry is trying to claim that ‘making available’ is an infringement. Can it also claim that ‘taking what is made available’ is also an infringement?

    No doubt a new crime of ‘being found in possession of an unauthorised copy’ is on some senator’s wish list, but it ain’t law yet.

  • http://www.techliberation.com/ Tim Lee

    Andrew,

    I think it would be accurate to say that no one has ever been prosecuted simply for downloading files, would it not? I’m pretty sure the RIAA has thus far focused all of its legal firepower on unloaders and middlemen.

  • Craig

    I agree that subsection 3 covers the issue. Where I disagree is the fact that they are voluntarily distributing their material over the radio. To me that means their intent is to distribute it to everyone.

  • Craig

    I agree that subsection 3 covers the issue. Where I disagree is the fact that they are voluntarily distributing their material over the radio. To me that means their intent is to distribute it to everyone.

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