I want my MP3! Creating a legal and practical scheme to combat copyright infringement on peer-to-peer Internet applications

Georgetown Law Journal, Jun 2002 by Jacover, Aric

a. The Fair Use Defense. The user of a peer-to-peer service arguably is engaged in a permissible fair use when the user digitally trades copyrighted music over the Internet. Section 107 of the Copyright Act sets forth the basic purposes for which the fair use doctrine should be applied, such as criticism, comment, and news reporting.87 The Copyright Act also lists four factors that are to be weighed in determining whether fair use should apply: (1) the purpose and character of the use (the more commercial it is, the less fair; the more transformative, the more fair), (2) the nature of the copyrighted work (the more creative it is and the less informational, the less fair), (3) the amount and substantiality of the portion used (the larger the portion, the less fair), and (4) the effect of unrestricted and widespread conduct of the sort engaged in by the defendant on the plaintiff's potential market for the work.88 Despite the statutory guidance provided in section 107, the fair use doctrine is largely judge-- made and is meant to be flexible, allowing courts to apply these factors and others on a case-by-case basis.89

or use it for some other money-making purpose.93 In the online context, where copying entire music recordings is becoming increasingly easy, it is important to send the message that acquiring music for free through peer-to-peer file trading is properly considered to be a commercial use for purposes of the fair use doctrine.94 Furthermore, whether a peer-to-peer user is only uploading or only downloading files should not have an effect on the fair use analysis.95 This is because peer-to-peer applications inherently rely on both uploading and downloading to create a viable service.96

The second fair use factor (nature of the copyrighted work) and third fair use factor (amount of the work used) strongly point to a finding of no fair use and thus warrant only a few words of comment. MP3 music files are sound recordings and creative in nature and thus are the types of works not meant to be covered by the second fair use factor.97 Regarding the third factor, the files usually incorporate a complete copy of the original sound recording and therefore warrant a finding of no fair use.98

lar use, if it should become widespread, would affect adversely the potential market for the copyrighted work.99 The adverse effect on the market may be presumed because peer-to-peer users are engaged in commercial uses.100 The question is whether the widespread use of peer-to-peer file sharing of copyrighted music has an adverse effect on the copyright holders' market for selling music.101

Peer-to-peer file sharing has affected the market adversely in numerous ways, and this will only increase as the technology develops to the point where file sharing becomes faster and easier. Napster has reported that 2.7 billion songs have been downloaded in a single month.102 Even with a moderate estimate that seventy-five percent of the songs available on the system were unauthorized copyrighted works,103 that percentage amounts to over two billion copyrighted songs. It is hard to imagine that such widespread use of peer-to-peer services to acquire copyrighted music would not adversely affect music sales. Studies already show a decrease in compact disc sales in locations where peer-to-peer file sharing is most prevalent-college campuses.104 College campuses play a significant role in this decline because most dormitories and college computer labs are equipped with high-speed Internet connections that allow users to download a MP3 file in seconds. In contrast, a modem connection-still used by most computer owners outside college campuses-can take up to half an hour to download a single file. It follows that when high-speed Internet connections are more widely available, peer-to-peer file sharing will become even more widespread, and the adverse effect on the music industry will be seen outside college campuses as well.