Fair Use and Downloading
As Eric Goldman notes on his blog, the Seventh Circuit issued an opinion yesterday in BMG v. Gonzales. The appeal squarely raised the question of whether downloading copyrighted music without permission using a peer-to-peer network is plausibly "fair use" and hence excused from liability. Judge Easterbrook, correctly in my view, thought not.
Along the way, Easterbrook includes two interesting discussions that seem likely to have broad implications.
First, the infringer here had argued that her acts were fair use because she was supposedly downloading these tracks in order to sample the music. As she explained, she might listen, like the music, and then buy the relevant CD. Easterbrook rejected this argument and did so in a way that might matter for cases involving technologies like Google Book Search. After all, Easterbrook's basic point was that copyight holders might themselves want to offer sampling services; and, if they did, (1) they would design those services differently, for example by making sure that "samples" only work for short periods of time, and (2) they would have a hard time competing with a free "fair use" service. These themes are often raised in technology cases, and Easterbrook's analysis on point is worth reading. (I for one wish he had said more about when these points resonate and when not; that is, as I discussed a few days ago, it surely isn't always the case that copyright holders should win just because these two conditions are satisfied, right?)
Second, and more for the hard-core copyright crowd, Easterbrook refuses to entertain the idea that statutory damages should be reduced in instances where the accused infringer had a good faith but ultimately incorrect belief that the infringements were fair use. Easterbrook indicates that this argument is precluded by section 402(d), and on that he is probably right. That said, the result seems wrong on policy grounds and is something I hope the EFF might someday see fit to take on. In this case, though, there was little point, as I doubt this particular defendant would have been able to show sufficient good faith anyway.