BMG v. Gonzalez: 7th Circuit weighs in on fair use for filesharing

The Seventh Circuit ruled yesterday in the case BMG Music v. Gonzalez, which involves a claim of fair use for songs downloaded from the peer to peer file sharing system, KaZaA. The district court had granted summary judgment to BMG, awarding $22,500 in statutory damages and an injunction against further infringement. Gonzalez then appealed to the Seventh Circuit.

Although Gonzalez downloaded more than 1,370 songs, the subject matter of the case is actually thirty songs that Gonzalez confirmed that she could not prove ownership of legitimately distributed copies for (i.e. she owned the CDs). How many more of the approximately 1,340 that remained she actually owned is disputed.

Her claim was that she intended only to sample music before buying it, and that this action constituted fair use under copyright. The Court went through the fair use factors of Section 107, ultimately concluding that her conduct did not constitute fair use. She copied the whole work, in this case copyrighted songs. The Court also held that her downloading affected the market for legitimate artists to make a profit from their copyrighted works. Accordingly, it could not be fair use. Further, the Court went on to point out that *all* of the downloaded songs violated the statute, it does not matter that you already own the CD. The downloading is still an unauthorized distribution of a copyrighted work. Ultimately, the district court’s grant of summary judgment was affirmed.

This case will now be cited against defendants who claim their particular circumstances are sufficiently different enough from Gonzalez’s facts to merit consideration. However, the court’s reasoning that all copies from a peer to peer service are infringements will be difficult to overcome, I believe.

Gonzalez’s argument points out a common misconception about copyrighted works: that if you own one copy of the work, like on a CD, that you own the *song.* Actually, what you own is a particular *copy* of the song. Proponents of this misconception often use the rallying cry “How many copies of _[INSERT TITLE HERE]_ do I need to buy?” I know that I have personally purchased the original Star Wars movies multiple times, at last count I have three different VHS releases, plus now the “Special Editions” on DVD. At no time did I ever receive a “lifetime copy” of the film, instead my copies are limited to the life of the media. If they should be damaged I do not have the right to pull copies off a file sharing network, but should instead be on my way to the store.

For more discussion of this case, here are some good links: