Downloading Music Isn’t Fair Use–BMG v. Gonzalez

By Eric Goldman

BMG Music v. Gonzalez, No. 05-1314 (7th Cir. Dec. 9, 2005)

This case deals with a central topic in P2P file-sharing lawsuits–was the downloading excused by fair use? This issue has come up in oblique ways in the past. For example, when the P2P file-sharing services were sued, they unsuccessfully claimed that their users’ activities were fair use (e.g., Napster, Aimster). And warez traders (who engaged in large-scale uploading and downloading of copyrighted files) unsuccessfully claimed fair use (US v. Slater). However, we’ve had very few cases where the downloading defendant litigated his/her own fair use defense.

In BMG v Gonzalez, Judge Easterbrook of the Seventh Circuit weighs in on this topic, and the news isn’t good. In typical Easterbrook bluntness, he efficiently rejects the fair use defense. In the case, Gonzalez allegedly downloaded 1,370 files, but only 30 were at issue in the case. For those 30, Gonzalez did not otherwise purchase a copy of the music, and she retained her downloaded copies indefinitely.

With these facts, the court does not find any merit to a fair use claim. Looking at the four-factor test, Easterbrook says that she was not engaged in a nonprofit use [I’ve never been clear why a personal use isn’t a nonprofit use–see the horrible bastardization of this standard in Napster] and she took 100% of the copyrighted work. Most importantly, Easterbrook thinks the downloading costs the copyright owners money: “Music downloaded for free from the Internet is a close substitute for purchased music; many people are bound to keep the downloaded files without buying originals.” This is a point that’s received mixed support in the academic literature, but Easterbrook sidesteps all of this debate.

Based on the variety of alternative ways of getting or sampling electronic copies of music, Easterbrook concludes with a broad standard: “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.””

Interpreted literally, this case should eliminate the fair use defense for the dozens of defendants fighting the RIAA in file-sharing lawsuits. However, an optimist could argue that Easterbrook left open the possibility that certain downloading activities might qualify as fair use–for example, the particular fact pattern didn’t involve a situation where the downloader had purchased a copy of the music elsewhere, or where the downloader deleted the file after some sampling period, or where the defendant downloaded only a small number of files.

However, I really don’t think the outcome would be different with different facts. The courts have shown, repeatedly, very little tolerance for garden-variety P2P music downloading. Therefore, I don’t see much reason for optimism that P2P music downloading will be considered fair use in future cases.

That isn’t to say that the RIAA will win its lawsuits when contested. There are still several key issues that could be legitimately disputed–like whether the plaintiffs own the copyrights they purport to enforce, and whether the defendants actually did the downloading (as opposed to someone else in their household or who was using their computer). But as evidenced by this opinion, I don’t see fair use as a useful defense in those lawsuits.

One other minor point of interest. Gonzalez claimed she was entitled to a jury on the computation of damages, but the court rejected this. BMG sought the lowest applicable amount of statutory damages, so no judicial discretion was exercised in setting the amount. In other words, even if the case went to a jury, she could not do any better on damages than the amount the judge actually awarded.