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Downloading Copyrighted Songs Is Not 'Fair Use'

By Leslie Gordon Fagen, Andrew G. Gordon and Darren W. Johnson

In an important decision interpreting the fair use provision of the Copyright Act (17 U.S.C. '107), the U.S. Court of Appeals for the Seventh Circuit recently held that downloading full copies of copyrighted material without compensation to authors cannot be deemed 'fair use.' In BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005), Judge Frank H. Easter-brook, writing for a unanimous three-judge panel, rejected the defendant's argument that she was immune from liability because she was merely sampling songs that she had downloaded from the KaZaA file-sharing network on a 'try-before-you-buy basis.'

Although the recording industry has filed hundreds of complaints against users of KaZaA and similar peer-to-peer file-sharing networks, many of those cases have settled or remain tied up in district courts. Gonzalez is the first such case to reach the appellate level and result in an opinion directly addressing the issue of whether downloading music through those networks qualifies as a 'fair use' under the Copyright Act.

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