Brett Received a New MacBook Sixteen-year-old Brett got a brand new MacBook for his birthday and is excited to see what it can do. He immediately connects to and peruses the internet, visiting all his favorite websites. He wants to hear the new Drake album, so he decides to download Soulseek, a file-sharing network program which is used primarily to share music. Users download and save the program on their computers. They can connect to the Internet and search the files available by song title, album title, or artist’s name. Brett downloads the Soulseek program, and downloads the Drake album with no problem. He listens to the album and he loves it, so he keeps it on his computer. He understands the mentality of these file-sharing networks, so he also selects program settings that allow the songs in his music folder to be shared, including the Drake album he just downloaded. He gets sued by a music company and is ordered to pay $750 per song he illegally downloaded.
Can Brett get in trouble for downloading the Drake album and sharing with other users of Soulseek? [Section 106 of the Copyright Act grants copyright owners the exclusive right to do and authorize the reproduction of copyrighted works in copies or phonorecords, preparation of derivative works based upon the copyrighted work and the distribution of copies or phonorecords to the public by transfer of ownership, rental, lease or lending. The plaintiffs in this case alleged Harper violated their copyright by reproducing the copyrighted audio files and making them available to others. However, the court only looked at whether Harper violated the Copyright Act by reproducing the files in the first place, and said that she did. The idea behind the Copyright Act statute is that a copy downloaded played, and retained on a hard drive for future use is a direct substitute for a purchased copy, without the benefit of the license fee paid to the broadcaster. BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005)]
But what if Brett thought it was legal, like it was a free iTunes or an Internet radio station? [Further, Harper was not an innocent infringer and was not afforded such a defense. The language of the statute shows that the infringer’s knowledge or intent does not affect the application of the statute; it doesn’t matter if you do not have legal knowledge or sophistication. Even though she downloaded songs from other users and no copyright notice was attached to them, and even though she was “too young and naïve” to understand that copyrights on published music applied to downloaded music, she was still required to pay $750 per song she infringed.]
But isn’t $750 unconstitutionally excessive? [The Act does not present a constitutional problem in terms of statutory damages. Congress enacted the Copyright Act, and so far, the statutory damages provisions have not been deemed constitutional. In fact, plaintiffs can get up to $30,000 in damages. However, defendants who are shown to have not willfully infringed can get the statutory damages dropped to $200 per song.]