Copyright Laws and Downloading Music

by David Carnes
Illegally downloading music can subject you to federal civil penalties.

Illegally downloading music can subject you to federal civil penalties.

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Whether or not you can legally download music from the Internet depends on whether you have permission from the copyright holder to do so. In most cases, free music downloads are illegal. Even paid downloads can be illegal if the copyright holder receives no royalties from the purchase price. The U.S. reserves the right to enforce its copyright laws even against people who download copyrighted music from overseas.

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Copyright Law and Music

A composer's original composition is automatically copyrighted the moment he reduces it to a "tangible medium" -- simply whistling an original tune will not copyright it but recording it will. Once the copyright is registered with the U.S. Copyright Office, additional legal protections apply. The most significant among these is that a copyright infringer can be sued for statutory damages of between $750 and $150,000 per infringement, even if the copyright holder cannot prove that the infringement damaged his economic interests. The maximum penalty is more likely to be applied to uploading rather than downloading because the potential economic loss is greater.

The "Fair Use" and "First Sale" Exceptions

The fair use exception to copyright law allows you to use a small portion of a copyrighted song without violating the copyright, as long as the use serves a beneficial purpose such as education, parody or commentary. This exception does not allow you to download an entire song, however. In the event of a lawsuit, a court would weigh several factors, including the size of the portion you used compared to the size of the entire song and whether or not you profited commercially from your use, to determine whether the fair use exception applies. The first sale exception allows you to obtain a second-hand copy of a copyrighted song without paying royalties to the copyright holder. Although the first sale exception would apply to buying a second-hand DVD, it does not apply to downloading music, because downloading requires the creation of a new copy.

Enforcement

The Recoding Industry Association of America represents several of the United States' largest record labels. Normally, record labels, rather than artists, own the copyrights to the songs written by the artists. In September 2003, the RIAA filed 793 copyright infringement lawsuits against users of peer-to-peer networks. The defendants included users who uploaded music but also included users who only downloaded. Additional enforcement actions have followed this first round of lawsuits.

Legal Downloads

The RIAA reports that, as of the time of publication, over 13 million songs were available for legal download through various services such as iLike, amazonMP3, iTunes and AOL Music. This is because these companies charge the user for downloads and use a portion of the purchase price to pay royalties to the copyright holders.