7th Circuit rules in P2P user infringement case
In BMG Music v. Gonzalez,Download file, the 7th Circuit has affirmed that a consumer infringed music copyrights by downloading and saving music files, despite her claim of fair use.
Gonzalez downloaded over 1300 songs from the KaZaA P2P file-sharing network. The case focused on 30 of these downloads, as it was disputed whether she owned or later purchased the CD for the other songs.
Gonzalez argued that her downloading was fair use because she was just sampling the songs to determine whether to buy them or not at retail. The Court was unpersuaded by this argument. It noted that she did not delete the songs after deciding not to purchase them. It also noted that the files she downloaded were posted in violation of the copyright law.
"The premise of Betamax is that the broadcast was licensed for one transmission and thus one viewing. Betamax held that shifting the time of this single viewing is fair use. . . . Time shifting by an authorized recipient this is not."
While the outcome here is unsurprising as a matter of fair use analysis, the Court's characterization of the holding in Sony, while it may be technically correct, does seem like a rather narrow reading of the landmark Sony Betamax case, Download file. If the goal of some content owners is to limit the Sony Betamax case to its facts, they seem to have found a receptive audience in the 7th Circuit in that regard.
The Court also commented that consumers can preview music on the radio, for which authors and publishers receive royalties, or through previews offered on licensed online services.
"With all of these means available to consumers who want to choose where to spend their money, downloading full copies of copyrighted material without compensation to authors cannot be deemed 'fair use.'"
The Court was generally unsympathetic to Gonzalez, conveying this sentiment in Judge Easterbrook's opinion through references to shoplifting and the like. Gonzalez was trying to take the case to a jury, apparently in the hope that members of the general public would not view her as a copyright criminal.
BMG Music, on the other hand, apparently was seeking to avoid a trial, because it sought the minimum statutory damages of $750 per infringement, instead of a greater amount up to the maximum $30,000 available under the Section 504(c)(1) of the copyright act. The Supreme Court has held that if a plaintiff seeks anything above the minimum amount, the defendant is entitled to a jury trial. See Feltner v. Columbia Pictures Television, Inc.,Download file.
According to the 7th Circuit:
"We read Feltner as establishing no more (and no less) than that cases under Section 504(c) are normal civil actions subject to the normal allocation of functions between judge and jury. When there is a material dispute of fact to be resolved or discretion to be exercised in selecting a financial award, then either side is entitled to a jury; if there is no material dispute and a rule of law eliminates discretion in selecting the remedy, then summary judgment is permissible."
