The U.S. Court of Appeals for the Seventh Circuit has held that downloading copyrighted songs from the internet is copyright infringement and cannot be defended as fair use. BMG Music v. Gonzalez, Case No. 05-1314 (7th Cir. Dec.12, 2005) (Easterbrook, J.).
Gonzalez downloaded more than 1,370 copyrighted songs through a file-sharing network and saved them to her computer. The evidence showed that she did not own legitimate copies of 30 of the downloaded songs. Charged with copyright infringement, Gonzalez argued that downloading songs to sample them and determine whether or not she would later purchase the music was a fair use.
The district court held Gonzalez failed to meet the elements of fair use—she was not engaged in nonprofit operations, and downloading music from unlicensed sites has an adverse affect on the potential market for the copyrighted work. Given the potential market for the copyrighted work, such as compact discs, radio and licensed internet sites, the district court also found that downloading full copies of copyrighted material without compensation to the authors cannot be considered "fair use." Further, the district court rejected Gonzalez’s claim that she was a minor offender: "[c]omputer users [cannot] defend their downloads by observing that other persons are greater offenders. A claim, that a downloader obtained ‘only 30’ copyrighted songs is no more relevant than a thief’s contention that he shoplifted ‘only 30’ compact discs ..."
The Court of Appeals upheld the district court’s award of statutory damages of $750 per song. If BMG had sought anything more, up to the statutory limit of $30,000 per occurrence, Gonzalez would have been entitled to a jury trial. However, since no jury would be entitled to award less than the statutory minimum, no triable issue remained. The Seventh Circuit agreed with the district court that Gonzalez had not, as a matter of law, carried her burden of proving that she did not know her acts constituted copyright infringement. The Court of Appeals observed that, under the law, if a notice of copyright appears on the published phonorecord to which a defendant had access, no weight should be given to a defendant’s claim of innocent infringement. The Court determined that, although the data Gonzalez downloaded did not have copyright notices, she had access to legitimate copies and could have (had she inquired) learned the music was under copyright.
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