Is Filesharing Legal
I was websurfing today and came across a webpage with a simple question at the top..."Is Limewire Legal". That's all it said. No explanation of what they were wanting to do on it, just wondering if it is legal in and of itself.
The answers ranged from No. to Yes. to everything in between. Many people thought if you bought the pro version that it was legal. Others thought everything about it was illegal. A few offered reports on how filesharing helps sell albums. But, the basic question wasn't ever really completely answered...at least not in a way that I'd have felt comfortable believing if I was the person asking the question.
The simple answer is "Yes, the courts have ruled that filesharing is legal." Why this is confusing is because the media companies have used all their might to try to bully people into believing that it's illegal. This isn't the first time they've done this. When VCR's were first released, there was another Supreme Court battle... Sony vs Universal (otherwise known as the Betamax case) . Universal was complaining because people were copying TV shows to watch later. Not to sell, not to broadcast on another television channel, but to watch them at a different time from when they were scheduled to come on. The argument was that this violated the copyright of the specific shows. Now, I'm going to share part of that finding with you so that as I continue, you can see for yourself that this is what the court has said. Note that VTR stands for Video Tape Recorder.
No matter what anyone (media company, parent, next-door neighbor, or even father-in-law) tells you, we have the right to reproduce a copyrighted work that we own for our own use. If you need to show proof of this, here is a link to the Regents Guide to Understanding Copyright & Educational Fair Use.
A couple quick points from that site:
Fair use applies to all copyrighted works regardless of the media in which they are fixed: print, electronic, or multimedia.
Fair use normally entails copying and is of three kinds:
This applies today also. There are a significant number of musicians who have spoken out in support of having their music shared over P2P networks. For examples, see http://www.downhillbattle.org/interviews, George Michael, and Janis Ian.
there is no likelihood that time-shifting would cause nonminimal harm to the potential market for, or the value of, respondents' copyrighted works.
This is one of the most important and controversial points of this discussion. The media companies argue that their market has been harmed. The musicians themselves, the actual copyright holders, say that the market has actually been helped. I'll broach this in another post.
The VTR's are therefore capable of substantial noninfringing uses. Private, noncommercial time-shifting in the home satisfies this standard of noninfringing uses both because respondents have no right to prevent other copyright holders from authorizing such time-shifting for their programs, and because the District Court's findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use.
This is the crux of the matter. If any P2P program is capable of substantial noninfringing uses, and doesn'thave constructural knowledge of copyright infringement then it is legal. Limewire, Kazaa, and nearly all other programs still out meet that requirement. The reason Napster and the other programs similar to it were closed down years ago is not because they were P2P programs but because they were storing the downloads in a central location, therefore negating any claims that they didn't have knowledge of copyright infringement.
So, to answer the main question, Yes Virginia, Filesharing, P2P, Limewire, Kazaa, Morpheus, Torrents, and anything else that uses these guidelines is 100% legal.
The answers ranged from No. to Yes. to everything in between. Many people thought if you bought the pro version that it was legal. Others thought everything about it was illegal. A few offered reports on how filesharing helps sell albums. But, the basic question wasn't ever really completely answered...at least not in a way that I'd have felt comfortable believing if I was the person asking the question.
The simple answer is "Yes, the courts have ruled that filesharing is legal." Why this is confusing is because the media companies have used all their might to try to bully people into believing that it's illegal. This isn't the first time they've done this. When VCR's were first released, there was another Supreme Court battle... Sony vs Universal (otherwise known as the Betamax case) . Universal was complaining because people were copying TV shows to watch later. Not to sell, not to broadcast on another television channel, but to watch them at a different time from when they were scheduled to come on. The argument was that this violated the copyright of the specific shows. Now, I'm going to share part of that finding with you so that as I continue, you can see for yourself that this is what the court has said. Note that VTR stands for Video Tape Recorder.
Things of importance: Paragraph a) Any individual may reproduce a copyrighted work for a "fair use"; the copyright owner does not possess the exclusive right to such a use.Held:
The sale of the VTR's to the general public does not constitute contributory infringement of respondents' copyrights. Pp. 428-456.
(a) The protection given to copyrights is wholly statutory, and, in a case like this, in which Congress has not plainly marked the course to be followed by the judiciary, this Court must be circumspect in construing the scope of rights created by a statute that never contemplated such a calculus of interests. Any individual may reproduce a copyrighted work for a "fair use"; the copyright owner does not possess the exclusive right to such a use. Pp. 428-434.
(b) Kalem Co. v. Harper Brothers, 222 U.S. 55 , does not support respondents' novel theory that supplying the "means" to accomplish an infringing activity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement. This case does not fall in the category of those in which it is manifestly just to [464 U.S. 417, 418] impose vicarious liability because the "contributory" infringer was in a position to control the use of copyrighted works by others and had authorized the use without permission from the copyright owner. Here, the only contact between petitioners and the users of the VTR's occurred at the moment of sale. And there is no precedent for imposing vicarious liability on the theory that petitioners sold the VTR's with constructive knowledge that their customers might use the equipment to make unauthorized copies of copyrighted material. The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses. Pp. 434-442.
(c) The record and the District Court's findings show (1) that there is a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcast time-shifted by private viewers (i. e., recorded at a time when the VTR owner cannot view the broadcast so that it can be watched at a later time); and (2) that there is no likelihood that time-shifting would cause nonminimal harm to the potential market for, or the value of, respondents' copyrighted works. The VTR's are therefore capable of substantial noninfringing uses. Private, noncommercial time-shifting in the home satisfies this standard of noninfringing uses both because respondents have no right to prevent other copyright holders from authorizing such time-shifting for their programs, and because the District Court's findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use. Pp. 442-456.
No matter what anyone (media company, parent, next-door neighbor, or even father-in-law) tells you, we have the right to reproduce a copyrighted work that we own for our own use. If you need to show proof of this, here is a link to the Regents Guide to Understanding Copyright & Educational Fair Use.
A couple quick points from that site:
Fair use applies to all copyrighted works regardless of the media in which they are fixed: print, electronic, or multimedia.
Fair use normally entails copying and is of three kinds:
- Creative fair use by authors who copy from other works to create their own work.
- Personal fair use by individuals who copy from works for their own learning or entertainment.
- Educational fair use by teachers, scholars, and students who copy for teaching, scholarship, or learning.
This applies today also. There are a significant number of musicians who have spoken out in support of having their music shared over P2P networks. For examples, see http://www.downhillbattle.org/interviews, George Michael, and Janis Ian.
there is no likelihood that time-shifting would cause nonminimal harm to the potential market for, or the value of, respondents' copyrighted works.
This is one of the most important and controversial points of this discussion. The media companies argue that their market has been harmed. The musicians themselves, the actual copyright holders, say that the market has actually been helped. I'll broach this in another post.
The VTR's are therefore capable of substantial noninfringing uses. Private, noncommercial time-shifting in the home satisfies this standard of noninfringing uses both because respondents have no right to prevent other copyright holders from authorizing such time-shifting for their programs, and because the District Court's findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use.
This is the crux of the matter. If any P2P program is capable of substantial noninfringing uses, and doesn'thave constructural knowledge of copyright infringement then it is legal. Limewire, Kazaa, and nearly all other programs still out meet that requirement. The reason Napster and the other programs similar to it were closed down years ago is not because they were P2P programs but because they were storing the downloads in a central location, therefore negating any claims that they didn't have knowledge of copyright infringement.
So, to answer the main question, Yes Virginia, Filesharing, P2P, Limewire, Kazaa, Morpheus, Torrents, and anything else that uses these guidelines is 100% legal.
posted by Teeg | 8:43 AM
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