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<b>Decision of Note: </b>Music Downloader Loses Argument Based on Fair Use

By ALM Staff | Law Journal Newsletters |

The U.S. District Court for the Northern District of Illinois ruled that a defendant who engaged in the unauthorized downloading of sound recordings from the Internet didn't have a viable fair-use defense. BMG Music v. Gonzalez, 03 C 6276. Several record companies sued Cecilia Gonzalez for downloading 30 songs onto her computer. Gonzalez claimed that the downloading constituted fair use under copyright law because she was listening to the recordings in order to decide whether to buy them. In rejecting the argument, the district court emphasized that; “the cumulative effect of direct infringers, like Gonzalez, harms the recording industry by reducing sales.”

To lower statutory damages, the defendant raised an innocent infringer defense under 17 U.S.C. Sec. 504(c)(2), claiming an issue of fact as to whether she had access to the plaintiffs' copyright notices. Denying this defense, the district court noted that under Sec. 402(d) of the Copyright Act, actual access isn't required, Rather, “plaintiff[s] need only show that the CDs with notice 'were in circulation [and] available' to the infringer. … [I]t is undisputed that the copyrights of the 30 songs at issue were properly noticed on the covers of the CDs.”

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