December 12, 2005 8:46 AM PST

Court upholds sizable file-swapping fine

A Chicago woman who downloaded songs for free from the Kazaa file-sharing network violated copyright law and must pay a $22,500 fine to the record labels, a federal appeals court has ruled.

In what appears to be the first U.S. case of its kind, the 7th Circuit Court of Appeals on Friday rejected Cecilia Gonzalez' arguments that she was merely "sampling" downloaded music to see which CDs she might want to purchase--and that her sampling was protected under copyright law's "fair use" exception.

Gonzalez' claim that "she obtained 'only 30'--or 'only 1,300'--copyrighted songs is no more relevant than a thief's contention that he shoplifted 'only 30' compact discs, planning to listen to them at home and pay later for any he liked," the court said.

Friday's appeals court ruling is significant for tackling one of the Recording Industry Association of America's lawsuits against individual file swappers in the wake of the U.S. Supreme Court's decision in the Grokster lawsuit in June. That decision, the 7th Circuit said, clearly established that "people who post or download music files are primary infringers" of copyright law.

Gonzalez, who rejected a settlement of between $3,000 and $4,000 that the RIAA had offered earlier, downloaded at least 1,370 copyrighted songs and kept them on her computer until she was caught. The bulk of those came from CDs she had purchased, she claimed.

This decision represents a long-sought appellate victory by the RIAA, which began its legal fusillade against individual file swappers by filing hundreds of lawsuits in September 2003. It buttressed those with additional suits against what has become a total of thousands of individual defendants.

Occasionally, the trade association has been dealt minor setbacks, such as when it was forced to withdraw one of its lawsuits against a Boston-area senior citizen because of an apparent mistake.

The 7th Circuit's decision shows that the judges adopted the RIAA's concern about downloads from file-sharing networks affecting music sales. "As file sharing has increased over the last four years, the sales of recorded music have dropped by approximately 30 percent," the court said. "Perhaps other economic factors contributed, but the events likely are related."

Barred from infringing copyright
A federal district judge had ruled against Gonzalez and also granted the RIAA an injunction barring her from future infringing. During the appeal, she asked the court to get rid of the injunction because she had learned her lesson and dropped her broadband Internet access.

"A private party's discontinuation of unlawful conduct does not make the dispute moot, however," Judge Frank Easterbrook wrote on behalf of a unanimous three-judge panel. "An injunction remains appropriate to ensure that the misconduct does not recur as soon as the case ends."

The 7th Circuit's ruling only sets a formal precedent for the states of Illinois, Indiana and Wisconsin.

The Electronic Frontier Foundation, a San Francisco digital-rights group, has published a list of suggestions on how not to get sued by the RIAA.

Kazaa, the file-swapping network at issue in the Chicago case, is currently the subject of a copyright-related lawsuit in Australia. It lost a round in September and was forced this month to cut off downloads of its Windows software in that country.

29 comments

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Personally...
I think I would have taken the defence that I didn't do it. I would have tried to make them prove that it was me in my house that did it.

Of course I would have probably still lost, but that would have been a better argument than I was sampling music. I could have shot that down by saying you can sample most music at places like amazon.com or even at some stores.

I would like to see them use the 'prove I did it' argument. It would be interesting to see if the RIAA can prove that you downloaded the music and kept a copy. Of course I think all they really have to prove is the intent and that your IP number was the one doing the downloading.
Posted by System Tyrant (1453 comments )
Reply Link Flag
same here
I was thinking the same thing. I would be very interested and demand to see all the evidence they have against me, all their "methods" of collecting this evidence. The big down side is, apparently for civil cases it is not, innocent until proven guilty, but more along the lines of guilty until proven innocent.

On a side note, how long will it take for the RIAA to sue enough people to ACTUALLY cause people not to buy their crappy RIAA music? At some point everyone will know someone who knows someone who got sued and sent them or their family back in the pocket book. I personally love the new radio commercials I hear on clear channel stations that say "radio should be free" why pay for it. They are using this to promote against satelite radio, go figure.
Posted by dingleberry420 (21 comments )
Link Flag
Better Defenses?
What if she had accidentally left her house unlocked and some
stranger entered and did this?

What if she had a wireless access point and someone driving by
used her ISP to download the songs?

What if she already owned (on CD/tape/vinyl) all the songs she
was downloading?

Would she still be guilty?
Posted by open-mind (1027 comments )
Link Flag
What about Bruned CDs?
I do not understand why they do not go after companies that produce software that rip CDs or blank CD manufacturers etc. There is so much exchange of digital data outside of the file swapping arena. They need to change the technology they use to create their CDs so that they cannot get ripped. People are just exchanging CD they burned instead of file swapping. I think RIAA is going about this the wrong way.
Posted by BattleAce7101 (51 comments )
Reply Link Flag
Blank CDs are legal.
US Copyright law explicitly grants you the right to make backups for personal use of anything you buy. CD rippers and blank CDs are 100% legal. I have my entire CD collection ripped to MP3, but I don't share it over the Interwebs. That's perfectly legal.

The problem as I see it, is that this isn't the type of behavior copyright law had in mind. The tactics RIAA is using were meant to be used against criminal counterfitters and not against casual copying.

I also think that repeated extensions of copyright terms far beyond anything that is reasonable has created a generation of people who have given up on the system. 90 year copyrights bennefit no one but the Disneys of the world. And no one under the age of 30 has ever seen the public domain grow.
Posted by NewWorldDan (15 comments )
Link Flag
That's been around forever
While the RIAA would want a magical way to stop copying of CD's it's not going to happen. Swapping and copying of music has always happened, and despite it the market has exploded.

The problem is that file swapping takes it to the extreme. You're talking about millions of CD's changing hands every day. It's a different ball game.
Posted by sanenazok (3449 comments )
Link Flag
RIAA Should Be Hung
I personally think that the lawyers for the RIAA should be hung by the neck until dead. They should know that they are probably never going to collect the fines levied against the people they sue because those people just don't have the money to pay those kinds of fines. All they are doing is clogging the courts with lawsuits and wasting taxpayer money.
Posted by yrrahxob (77 comments )
Reply Link Flag
Taxpayer money?
Courts collect fees and would cost money if RIAA was suing or nobody at all.

It's mostly their own money they are wasting...but I don't think RIAA will be put out of business by their lawsuits. Each one of these suits gets another 1000 files off the networks, maybe, so it benefits the RIAA.

I don't blame the lawyers, they have to do what their client tells them. It's a living for them.

The lady's defense that she was "sampling" is just stupid. She can "sample" all she wants through subscription services like the legal Napster. Pay $9 a month and listen all you want.

Next she'll probably sue her lawyers for not forcing her to accept the earlier settlement.

Personally, I don't see why anyone would listen to this muzak on the radio, not to mention pay money or download it.
Posted by sanenazok (3449 comments )
Link Flag
She wasn't sued for downloading
She was caught and sued for sharing what she had downloaded, not just downloading as the article seems to imply. To be honest the sampling argument was a rather poor defense, and keeping the songs on her computer wasn't all that smart either.
Posted by unknown unknown (1951 comments )
Reply Link Flag
Watch out
She wasn't sued for downloading! Sounds like you are living in another world. Downloading is illegal too. Keep downloading and it's just a matter of time. The RIAA has made that more than clear, and they really don't care what you as a customer think about it.
Posted by GrandpaN1947 (187 comments )
Link Flag
riaa
Riaa may have won a court battle but BMG lost a customer 2 years ago when they started this BS, and I never down loaded anything.
Posted by sally3745 (9 comments )
Reply Link Flag
Disproportionate
I have no real sympathy for people that download copyrighted material without having a legally purchased version, but there does seem to be an enormous disparity between the sums sort and the actual value of the downloaded material.

For instance, this person allegedly downloaded about 30 cds worth of music, which at top dollar prices would have cost $450. I appreciate that an additional fine for breaking the law adds to this total, but $22,500 seems abusively excessive.

A person stealing 30 CDs from a music store would not be fined $22,000 even if court costs were involved. To suggest that a letter and a few hours in court total $22,000 is ridiculously abusive and should not be allowed - not matter what civil crime has been committed.

As for people's right to share music, there is no such right is the music is protected by copyright.

Like I said, unless you can prove your computer was hacked - a defense that may have worked in the past, but is now too commonly used to have much effect - then I don't see why people should be surprised or upset when they are forced to face the consequences of their own actions.

As for fair use, I think the ability, or rather the lack of ability to exercise these rights has unlawfully been removed by DRM and other copy protection methods.

Fair use rights are not optional, and if it's against the law to break copyright protections, then anyone who employs such protections should be forced to implement a system allowing for fair use copies to be made.

As for downloading copyrighted material, I also think that if you can prove you already owned a legally purchased copy of the downloaded material, but were in some way prevented from making fair use backups of this media, then this should be a valid defense against the RIAA.
Posted by ajbright (447 comments )
Reply Link Flag
It's all irrelevant
Don't you all see? It doesn't make any difference if we can or can't download, can or can't afford the illegal price controlled prices, do or don't buy them. In the end, the record companies will regret screwing their customer base. It may take a while, but eventually the customers will find other ways or even other sources for their music. And, if they don't, then the record companies will still hurt when their customers turn into EX customers anyway. It's not a question of "is it right or wrong" or "is it against th law". There are no questions, there are no issues. It's just a matter of time untill a new method, a new source, a whole new way of delivery of entertainment occurs, one without the RIAA in control.
Posted by GrandpaN1947 (187 comments )
Reply Link Flag
RIAA and Musicians
Ok, I can understand the RIAA. Their lawyers brokering their power base with in the music industry with very limited actual talent, and outside of the musicians themselves, most everyone else in the industry is a lawyer of some degree or other. BUT, What I don't understand is why since the advent of the internet musicians haven't left a industry that consummes more than it contributes and started their own web sites where a fan could download. $15-20 for a CD and how much actually gets to the artist?
Posted by aqvanavt (17 comments )
Reply Link Flag
I can answer that
There are a few reasons:

1. Many musicians are still signed to contracts with traditional record companies.

2. Until very recently, digital downloads were a small percentage of the industry. iTunes is changing that (it just recently exceeded both Tower and Barnes and Noble in terms of music sales).

3. iTunes has taken a while to ramp and to build distribution models into it that bypass the large record companies. That is changing, as firms like Orchard, Garageband.com, and CD-Baby are becoming more popular.
Posted by R. U. Sirius (745 comments )
Link Flag
my 2 cents
Ok, I can accept downloading is illegal. I dont download anyway. But,if people/companies want to go after copyright violaters, they are way behind, because everyone in the world breaks copyright laws at least once.

Example: Record a movie on tv, you just broke copyright laws.

Example: Talk about any televised sports game, (NFL,MLB,NBA,College sports, etc.) Remember, they always tell you that none of the game can be retransmitted in ANY way without express written consent of the commission/league, etc...

So, to be honest, they only selectively apply copyright laws.
Posted by techguy83 (295 comments )
Reply Link Flag
I won't purchase CDs
Personally, I feel the RIAA and entertainment industry in general
are nothing but greedy pigs.

As an example, take the way the entertainment industry uses
CSS to copy protect DVDs. Technically, it makes it so we can't
copy them (I'm aware of deCSS), even when we've LEGALLY
PURCHASED THEM.

So when a new media format becomes availabe and DVDs go the
way of the LaserDisk, we'll be forced to purchase the very
intellectual property we've already paid for YET AGAIN.

How many times has this happened to all of us? LPs to 8-tracks.
8-tracks to cassettes, Cassettes to CDs. How much money has
the recording industry made from selling us the same material
multiple times. God forbid that we should be able to copy WHAT
WE LEGALLY PURCHASE and move it to a new media format
without having to run back to them AND PAY FOR IT.

I have no sympathy for the entertainment and recording
industries. 99% of all new music is crap (IMO). I'm sure that this
accounts for a good chunk of those supposed "lost sales".

No matter how good it is, I won't buy it (nor will I illegally
download it). I won't support these people and if more people
just wouldn't support them, perhaps they'de lay off these bogus
lawsuits due to lack of funding as a result of a major lack of
sales.
Posted by chuck_whealton (521 comments )
Reply Link Flag
They're not all guilty
You know, your attitude is a little immature in that you are stereotyping to the extreme. There are some smaller record labels that aren't "greedy pigs." Just because many, maybe even most, are greedy doesn't mean that you should turn your back on all of them. That's just like the classic racism and sexism that held, and to some degree still hold, many people back.

As far as the change in media types, I have never been aware of any prevention of copying any audio media to another type. You can copy your LPs to 8-tracks, cassettes, and CDs. You could even copy your CDs to 8-tracks if you really felt so inclined. The alternative media types are out there because of the different quality and convenience factors. Cassette tapes and 8-track tapes, for instance, may have lower sound quality than LPs, but both allowed for music to be more portable - like MP3s are now. CDs have the advantage of being portable without having a low sound quality. It's the evolution of technology.

Evolution of technology is the same with video tape to Laserdisc to DVD, other than Macrovision and CSS. Video tape can be copied to DVD and Laserdisc can be copied to DVD. In some instances (unfortunately not too many), DVD can be copied back to video tape. But if you were to put aside the admittedly harsh restrictions, would you rather go back to video tape from DVD?

I am not a fan of what the industry does to prevent fair use, and I never have been. I do see the evolution for what it is, though. Until this point where digital file based media has gained popularity and the music industry is failing to adapt, their format changes have been largely to everyone's advantage. Don't loose sight of that.
Posted by ddesy (4336 comments )
Link Flag
A better option
Makes sense to me to boycott RIAA members. That organization is misnamed anyway, dominated as it is by overseas music owneres like Sony and its evil German twin BMG (okay, I know they're now merged in some sort of incestuous glee).

There are a LOT of independents out there - many first-rate American musicians have just given up on RIAA companies, which ultimately are about pop radio play anyhow. Since the independent artists don't have to pass through the bureaucratic buy-off chains of large companies, their music tends to be more free, spontaneous, and creative, and not overproduced either. And they often make whole songs freely available for people who genuinely want to sample, not steal, music.

So I suggest people simply refuse to buy RIAA-published music. That's how to hit them where they live, in their fat bank accounts.

There's always a link to the most recent available RIAA membership list at <a class="jive-link-external" href="http://www.boycott-riaa.com/membership" target="_newWindow">http://www.boycott-riaa.com/membership</a> - other links there point to free music of all types and suggest ways to actively resist them RIAA furriners who mislabel themselves as an American association and the greedy Hollywood lawyers who do their dirty work for them.

I just wish I had a list of the politicians they've bought. They're as bad as the credit card and insurance industries for spreading corruption.
Posted by RetiredInMexico (12 comments )
Link Flag
Back to the old school!
lets take it back to the old school if your friends have it, take it, burn it. record off the radio or sat. save the downloading for movies, at least if you get caught you'll feel like you paid for something that actually cost a ton of money to produce.
Posted by Luke_Cage (33 comments )
Reply Link Flag
The Big Scam
Few people talk about how politicians are suddenly in the pockets of the RIAA corps and have no problems passing these ridiculous copyright laws that end up kissing the corporations butts while punishing the consumer who loves the music.

Rather than let the music industry ebb and flow in response to consumer demand and the ever changing technologyies. Politicians in Washington have this blatently one sided approach that heavily favors whatever the music industry desires, while seemingly denying the impact of new technologies and trends that can not only the music creativity more creative and interesting but can take the market market to a whole new dimension which is sorely missing today.

A fine of $22,000 for copying 30 CDs is outrageous! First of all, the fine has no impact whatsoever in reducing the pirating of music online. The next thing to think about is how terrible the reputation of these major record companies are nowadays. Ya know, it did not always use to be that way.

I dont see any good that comes out of these types of court rulings. It is a bad situation all around. The music is not as good, the music industry is increasingly corrupted, and the politicians become morally bankrupt!
Posted by tetsuyo (50 comments )
Reply Link Flag
The Big Scam
Few people talk about how politicians are suddenly in the pockets of the RIAA corps and have no problems passing these ridiculous copyright laws that end up kissing the corporations butts while punishing the consumer who loves the music.

Rather than let the music industry ebb and flow in response to consumer demand and the ever changing technologyies. Politicians in Washington have this blatently one sided approach that heavily favors whatever the music industry desires, while seemingly denying the impact of new technologies and trends that can not only inspire more creative and interesting music, but can also take the music market to a whole new dimension which is sorely missing today.

A fine of $22,000 for copying 30 CDs is outrageous! First of all, the fine has no impact whatsoever in reducing the pirating of music online. The next thing to think about is how terrible the reputation of these major record companies are nowadays. Ya know, it did not always use to be that way.

I dont see any good that comes out of these types of court rulings. It is a bad situation all around. The music is not as good, the music industry is increasingly corrupted, and the politicians become morally bankrupt!
Posted by tetsuyo (50 comments )
Reply Link Flag
 

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