法律英语：83 File Sharing Law

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is file sharing and downloading on the Internet. Millions of Americans download media files via the Internet. But when are these downloads legal, and when are they not? The Quick and Dirty Tip is that if you would normally have to pay for it at your local Borders or Barnes & Noble, you must also pay for it on the Internet. You may not download it for free.

Under federal law, artistic³ works such as songs, movies, books, and photographs can be copyrighted. Once the work is copyrighted, the creator of the work gets a number of rights including the exclusive rights to copy and distribute it.

For example, U2 wrote and recorded an excellent album titled The Joshua Tree. They copyrighted their songs and the artwork used on the CD. Then you buy it. You can listen to the album, use songs in a mix CD or playlist on your iTunes, etc. But, you cannot make 100 copies and sell them on the street corner because you are infringing⁴ on U2’s right to do so. They made the album and copyrighted it, so they get to control its distribution.

The same idea applies to the Internet. You can buy The Joshua Tree, burn it to your computer, and listen to it. You cannot then charge people $1 each to download a song from you. Under the No Electronic Theft Act, you cannot give the song away for free either. You are, again, doing things that only U2 has the right to do: copy and distribute.

And this brings us to file sharing programs. File sharing programs are computer programs that let users grant public access to a folder⁵ on their computer. So, I could put in my public folder photos from my vacation to Hawaii, a short film that I created and copyrighted, and the songs from The Joshua Tree. Then, other users in the network could download the files to their own computers. Let’s look at each in turn:

My vacation pictures are fine because they are not copyrighted. I can share them with anybody I want, and anyone can distribute them to anyone else.

The short film I created is slightly different. Assuming that I own all the copyrights to it, I have rights to the film and can control how I distribute it. I have the right to post the film, and you can download it because I chose to make the episode downloadable for free. But, you do not have the right to redistribute the film by posting it on YouTube. If you downloaded the film and then sent the file to your dad, you are technically⁶ infringing on my copyright. This is true even though I do not charge you for the file.

U2’s album is a pretty straightforward⁷ example. Once I put the copyrighted songs up, I am distributing them, and anyone who downloads the song is effectively stealing it from U2 for the purposes of copyright law. This is true regardless of the number of songs I put up, the quality of the recording⁸, and whether one person or a million people download the song.

To use the Border’s analogy, I could not burn 100 copies of U2’s album and sell it to Borders because only U2 has the right to do that. You would be stealing from Borders if you walked into the store and took the album without paying for it. Both of us are breaking the law and can face penalties.

The penalties for copyright infringement⁹ range considerably¹⁰. For willful commercial infringement, the penalty can be as high as six months in prison and $250,000 in fines.

Initially¹¹, the government and copyright holders¹² sued only the makers¹³ of file sharing programs, such as Napster and Grokster. But, copyright holders have been cracking down on individual users too. On September 8, 2003, the Recording Industry Association of America (RIAA), the trade group that represents the U.S. recording industry, filed 261 lawsuits¹⁴ against individual file-sharers. Among the 261 people targeted, four were college students who settled the claims for $12,000 to $17,500. That campaign has escalated¹⁵ recently, and on February 28, 2007, the RIAA launched a new campaign against illegal file sharing against 400 students on 17 university campuses.

These suits pit the central goals of copyright against each other. On one hand, we want artists to be able to maintain exclusive control over how they promote, distribute, and sell their work so that they have an incentive¹⁶ to create something that is unique and inspiring. On the other hand, we want the public to be able to access the music, and the Internet is a truly remarkable¹⁷ tool for doing so. For two disparate views on how the problem should be solved, please visit the RIAA’s website at。。。and the Electronic Frontier Foundation’s website at。。。In the end, the Quick and Dirty Tip is to be very careful with file sharing programs. Many listeners might be infringing on copyrights unintentionally by posting their music files in their public folders¹⁸. To ensure that you do not unintentionally commit copyright infringement, please visit the EFF’s tips page.

The safest option is to purchase music legally, either at a music store, or online. iTunes is an excellent option where users can buy individual songs for $0.99. For a list of other sites where you can buy music, please visit the RIAA’s website.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful¹⁹ Life. Be sure to check out all the excellent Quick and Dirty podcasts at QuickAndDirtyTips.com.

You can send questions and comments to。。。。or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.

UPDATE:
Many listeners have written regarding the following statement:

“My vacation pictures are fine because they are not copyrighted. I can share them with anybody I want, and anyone can distribute them to anyone else.”

As many listeners have pointed²⁰ out, this statement is not entirely²¹ true. The creator of an artistic work such as a photograph immediately gains some copyright protection simply by taking the photograph. My statement is inaccurate²². I apologize to you, loyal listeners, and thank those listeners who wrote to correct me.

The point I intended to make is that I would have little practical legal recourse against you if I posted my own files publicly without indicating that these photographs were intended to have copyright protection. (For example, I could do so by putting a © symbol on the photograph, but such a designation is not necessary.) Should I choose to sue for copyright infringement, I would not be likely to win any significant monetary²³ damages. I used the vacation picture example as a practical contrast to that of my own copyrighted movie or a popular band’s copyrighted music album. In doing so, I oversimplified and misstated the law.

I encourage listeners to e-mail and comment for this exact purpose. I intend to convey accurate legal information while maintaining language that is not overly technical or confusing. Thank you for listening, and please continue to comment!

Legal Lad

 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 artistic   

adj.艺术(家)的，美术(家)的；善于艺术创作的

参考例句：

• The picture on this screen is a good artistic work.这屏风上的画是件很好的艺术品。
• These artistic handicrafts are very popular with foreign friends.外国朋友很喜欢这些美术工艺品。

4 infringing   

v.违反（规章等）( infringe的现在分词 )；侵犯（某人的权利）；侵害（某人的自由、权益等）

参考例句：

• The material can be copied without infringing copyright. 这份材料可以复制，不会侵犯版权。
• The media is accused of infringing on people's privacy. 人们指责媒体侵犯了大家的隐私。 来自《简明英汉词典》

5 folder   

n.纸夹，文件夹

参考例句：

• Peter returned the plan and charts to their folder.彼得把这份计划和表格放回文件夹中。
• He draws the document from its folder.他把文件从硬纸夹里抽出来。

6 technically   

adv.专门地，技术上地

参考例句：

• Technically it is the most advanced equipment ever.从技术上说，这是最先进的设备。
• The tomato is technically a fruit,although it is eaten as a vegetable.严格地说，西红柿是一种水果，尽管它是当作蔬菜吃的。

7 straightforward   

adj.正直的，坦率的；易懂的，简单的

参考例句：

• A straightforward talk is better than a flowery speech.巧言不如直说。
• I must insist on your giving me a straightforward answer.我一定要你给我一个直截了当的回答。

8 recording   

n.录音，记录

参考例句：

• How long will the recording of the song take?录下这首歌得花多少时间？
• I want to play you a recording of the rehearsal.我想给你放一下彩排的录像。

9 infringement   

n.违反；侵权

参考例句：

• Infringement of this regulation would automatically rule you out of the championship.违背这一规则会被自动取消参加锦标赛的资格。
• The committee ruled that the US ban constituted an infringement of free trade.委员会裁定美国的禁令对自由贸易构成了侵犯

10 considerably   

adv.极大地；相当大地；在很大程度上

参考例句：

• The economic situation has changed considerably.经济形势已发生了相当大的变化。
• The gap has narrowed considerably.分歧大大缩小了。

11 initially   

adv.最初，开始

参考例句：

• The ban was initially opposed by the US.这一禁令首先遭到美国的反对。
• Feathers initially developed from insect scales.羽毛最初由昆虫的翅瓣演化而来。

12 holders   

支持物( holder的名词复数 )； 持有者； （支票等）持有人； 支托（或握持）…之物

参考例句：

• Slaves were mercilessly ground down by slave holders. 奴隶受奴隶主的残酷压迫。
• It is recognition of compassion's part that leads the up-holders of capital punishment to accuse the abolitionists of sentimentality in being more sorry for the murderer than for his victim. 正是对怜悯的作用有了认识，才使得死刑的提倡者指控主张废除死刑的人感情用事，同情谋杀犯胜过同情受害者。

13 makers   

n.制造者，制造商（maker的复数形式）

参考例句：

• The makers of the product assured us that there had been no sacrifice of quality. 这一产品的制造商向我们保证说他们没有牺牲质量。
• The makers are about to launch out a new product. 制造商们马上要生产一种新产品。 来自《简明英汉词典》

14 lawsuits   

n.诉讼( lawsuit的名词复数 )

参考例句：

• Lawsuits involving property rights and farming and grazing rights increased markedly. 涉及财产权，耕作与放牧权的诉讼案件显著地增加。 来自辞典例句
• I've lost and won more lawsuits than any man in England. 全英国的人算我官司打得最多，赢的也多，输的也多。 来自辞典例句

15 escalated   

v.（使）逐步升级( escalate的过去式和过去分词 )；（使）逐步扩大；（使）更高；（使）更大

参考例句：

• The fighting escalated into a full-scale war. 这场交战逐步扩大为全面战争。
• The demonstration escalated into a pitched battle with the police. 示威逐步升级，演变成了一场同警察的混战。

16 incentive   

n.刺激；动力；鼓励；诱因；动机

参考例句：

• Money is still a major incentive in most occupations.在许多职业中，钱仍是主要的鼓励因素。
• He hasn't much incentive to work hard.他没有努力工作的动机。

17 remarkable   

adj.显著的，异常的，非凡的，值得注意的

参考例句：

• She has made remarkable headway in her writing skills.她在写作技巧方面有了长足进步。
• These cars are remarkable for the quietness of their engines.这些汽车因发动机没有噪音而不同凡响。

18 folders   

n.文件夹( folder的名词复数 )；纸夹；（某些计算机系统中的）文件夹；页面叠

参考例句：

• Encrypt and compress individual files and folders. The program is compact, efficient and user friendly. 加密和压缩的个人档案和folders.the计划是紧凑，高效和用户友好。 来自互联网
• By insertion of photocopies,all folders can be maintained complete with little extra effort. 插入它的复制本，不费多大力量就能使所有文件夹保持完整。 来自辞典例句

19 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。

20 pointed   

adj.尖的，直截了当的

参考例句：

• He gave me a very sharp pointed pencil.他给我一支削得非常尖的铅笔。
• She wished to show Mrs.John Dashwood by this pointed invitation to her brother.她想通过对达茨伍德夫人提出直截了当的邀请向她的哥哥表示出来。

21 entirely   

ad.全部地，完整地；完全地，彻底地

参考例句：

• The fire was entirely caused by their neglect of duty. 那场火灾完全是由于他们失职而引起的。
• His life was entirely given up to the educational work. 他的一生统统献给了教育工作。

22 inaccurate   

adj.错误的，不正确的，不准确的

参考例句：

• The book is both inaccurate and exaggerated.这本书不但不准确，而且夸大其词。
• She never knows the right time because her watch is inaccurate.她从来不知道准确的时间因为她的表不准。

23 monetary   

adj.货币的，钱的；通货的；金融的；财政的

参考例句：

• The monetary system of some countries used to be based on gold.过去有些国家的货币制度是金本位制的。
• Education in the wilderness is not a matter of monetary means.荒凉地区的教育不是钱财问题。