What's Legal, What's Illegal- the real scoop!

What is a "copyright"?
A copyright is a form of protection provided by the laws of the United States to the authors and creators of "original works of authorship." This includes literary (like books and magazine articles), dramatic (like screenplays and commercials), musical (like songs and recordings), artistic (like paintings and sculptures), and certain other original creative works.

This protection is available to both published and unpublished works, including songs written by our favorite artists. Copyright law generally gives the owner of copyright the exclusive right to reproduce the work, distribute copies of that work, perform and/or display the work in public, and if an audio recording, publicly transmit and perform the recording digitally. It also gives the copyright owner the exclusive right to authorize others to do these acts. (Radio stations are allowed to perform musical compositions (i.e., songs) publicly because they have the permission of the music publishers (or their collective representatives, such as ASCAP, BMI and SESAC).

How can I tell if a song is copyrighted?
Copyright protection is available to both published and unpublished works. That means that the copyright for any work, including a song, belongs to the author who created the work. Only the author - or those who the author has given rights to - owns the copyright. This generally means only the artist and his/her record label, and the songwriter and his/her music publisher, have copyrights in and to a given recording or song, respectively.

When we buy CDs, we do not own the copyrights to that music just because we purchased the album or single. When we purchase music, we only own the right to the particular copy that we acquired (i.e., we do not automatically have the right to make copies of the CD or to perform the CD in public places such as in a bar, retail store, dance club, etc.).

The symbol "©" (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr" will usually appear with copyrighted materials. For example, if you look on the back of a music CD, toward the bottom of the small print you will find the symbol "©" to designate it is copyrighted and who holds the copyright on that album. Despite the fact that online music files don't have the copyright symbol present in such a visible manner, you should still assume most music online is copyright protected - just to be safe. In fact, most legitimately acquired files do have copyright notices embedded in the data, such that they may be displayed via your digital music player.

I heard if I make a tape for a friend of an album I purchased - it's no problem; but if I burn a CD for my friend, then it's stealing. Is that true? I don't understand the difference.
You may be surprised to learn that neither of these activities is legally permitted, and, in fact, they are both considered the same thing.
 

How do I know that I am downloading music legally? What is the difference between a legal and an illegal download?
As a general rule of thumb: if you are using a P2P network, then you are likely downloading illegally.
You can find legal download options when you go to a music label and/or artist approved Web site that allows you to download music. For a list of legal Web sites that offer digital music downloads, click here.

Doesn't the first amendment give me the freedom of speech - meaning I can upload or download any song I want, regardless of copyrights?
Freedom of speech gives us the freedom to say what we want, when we want. But it does not give us the right to take copyrighted expression belonging to other people and give it away or otherwise use it at our own discretion. For example, freedom of speech allows us to write a book review and summary of a new novel, but it does not allow us to reproduce the novel in its entirety and make that reproduction available to others (as is the case with P2P file sharing of music).

What is the difference between "downloading" and "uploading"?
"Uploading" is the transmission of a file (i.e., digital song) from one computer system to another (or to a server). From a P2P network user's point-of-view, “uploading” a song is sending it to another computer user.
Transmission in the other direction is "downloading" - from one computer (or server) to another computer. From a P2P network user's point-of-view, “downloading” is receiving a song from another computer.
Many people don’t realize that if you have a song file stored on your computer and your computer is connected to a P2P network, you may be uploading without even knowing it.

I heard "downloading" is not illegal, but uploading is. Is that true? What makes some downloading illegal and some legal?
Both downloading and uploading from a P2P network are illegal, but uploading activity is the central focus of current lawsuits. Downloading copyrighted materials from a P2P network is still not legal. Downloading is only legal when the person from whom we are receiving the file has permission from the copyright owner to provide us with a copy.

What is the "fair use doctrine"? What does it mean? When I upload CDs that I have purchased onto the Internet, am I protected under fair use? What about when I download music from CDs I've already bought, is that legal?
"Fair use" is a complicated and often misunderstood concept under the law. “Fair use” is never a black-and-white inquiry, because it involves a balance of many factors, including the character of the use, the nature of the copyrighted work, the amount of the work taken in relation to the whole (both quantitatively and qualitatively), and whether the use undermines the market for the original work. In general terms, "fair use" tends to allow us to copy copyrighted material only for a "limited" and "transformative" purpose. For example, we can use portions of copyrighted works when we want to comment upon, criticize or parody such works. We do not need permission from the copyright owner for these uses. Basically, "fair use" defends us against infringement.

As noted above, the fair use doctrine can be ambiguous or vague. Not surprisingly, millions of dollars in legal fees have been spent attempting to define what qualifies as a "fair use." In the end, no easy to define rules exist for fair use, and our only guidelines are those specified above (as spelled out in the Copyright Act, based on the first amendment) and the interpretation provided by numerous court decisions. The judges and lawmakers who created the fair use exception did not want to limit the definition of fair use because they wanted the law to have a broad, flexible meaning left open to interpretation depending on the specific context. Of course, for us that makes it difficult to rely on "fair use" as a viable defense to infringement.

If we download music from a legitimate and legal site, the music is legal and protected, regardless of whether or not we have previously purchased the CD that contains the music we are downloading. If we download music from an illegal P2P site, that downloading is illegal, even if we previously purchased the CD with the music we are downloading. This is because the copyright owners have not given permission for the copy of that music through the P2P site.

Is it illegal to upload a CD I bought onto the Internet so my friends can hear it and make copies?
Yes. This is illegal because we do not have permission to reproduce, distribute or publicly perform the music to our friends when we buy a CD. We only have permission to listen to that CD and/or otherwise use it for our personal, noncommercial use.

If I buy a song or album online, how can I legally copy it?
Each site has different restrictions on legal ways to copy its music. As a rule of thumb, once we've bought a song or album online, we can often play that file on our digital media players (i.e. an MP3 player), or our computers, or by burning the file to a CD for playback on a CD or DVD player. However, we are generally only permitted to play this file on our own equipment - we cannot give the file to our friends or family to play on their own devices.

If I buy a song or album on a CD, can I legally copy it? What are the legal ways I can make copies?
As noted above, it is generally permissible to make copies of a lawfully purchased CD for personal use. This means we can copy that CD onto another CD for use in our car, for example, or onto a tape for our Walkman. Or, we can make a copy of the CD on our hard drive to play the file on our computer. Burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player won’t usually raise concerns so long as the copy is made from an authorized original CD that you legitimately own and the copy is just for your personal use. Giving away the copy or lending it to others for copying is not a personal use and is not legal.

If peer-2-peer (P2P) file-swapping services like Kazaa, Morpheus, Grokster, etc., are illegal, then why don't those sites get shut down by the authorities like Napster did?
In August 2004, the lower courts held that the P2P software made available on P2P sites is not illegal in and of itself, because it theoretically could have non-infringing uses (as with a photocopier and cassette recorder, a CD burner, etc.). What is illegal is the use of P2P software by users to "swap" or "share" copyrighted materials.

A Supreme Court decision in June 2005, however, overturned that decision and held that P2P services could certainly be held liable for illegal file-sharing on their sites, if the sites did anything at all to encourage such illegal activity, and sent the case back to the lower courts for revision. This resulted in Grokster closing its site on November 7, 2005.

The other P2P sites that remain open, such as LimeWire, are able to do so for the time being because they operate very differently from the original Napster P2P network. The original Napster actually kept an index of all the files in a central place called a "server," and required users to access that server as a directory of the files being made available over its network. The court therefore held that Napster directly contributed to the infringement of copyrighted works by users. Sites like LimeWire don’t use a central server at all, but allow individual users' computers to connect directly to one another. The networks randomly select a few computers to act as "supernode hubs," which index files and handle search requests. A decentralized server cannot be shut down by shutting down any one node which makes these sites very difficult to shut down
 

If sites like Kazaa, and the software they make available for free IS legal, why can't I use that software to swap music online?
As previously stated, a recent Supreme Court decision held that P2P services could be held liable for illegal file-sharing on their sites, if the sites did anything at all to encourage such illegal activity. Several of these sites, Grokster included, have been shut down for that reason.

Though some sites remain open for the time being, the action of actually swapping music without the permission of the copyright holder is illegal. Therefore, when we download and upload music for others to copy without paying for it, it's not legal.

The artists and musicians make so much money. Does it really matter if I download a couple of songs for free every so often?
It may seem like it doesn't matter if we only download one or two songs illegally. That's only pennies to artists, right? Imagine, however, if everyone downloaded just one song without paying for it. This would amount to millions of dollars lost for other people who have worked on the song including songwriters, mixers, engineers, marketing people, musicians, and the list goes on. Therefore, downloading even one song makes a huge difference in the health and future of the music industry. Even if we only download one song illegally, it's still, well, illegal.

If my computer came with a CD burner, why is it illegal to burn CDs? If it's illegal, shouldn't the consumer electronics manufacturers and computer companies be banned from making these products?
CD burners are an amazing technology tool and provide consumers with many legitimate uses. People legally use CD burners to save work documents and digital video and photos, for example. Remember, you are allowed to legally make one backup of your CDs as long as it's for your own personal use. The same is of course true for DVD burners, MP3 players, etc.

I have a portable MP3 player. If I buy a CD and download it onto my MP3 player, am I breaking the law? What if I download my friend's CD?
It is generally legal to burn or download a CD you bought onto your own MP3 player. Downloading your friend's CD is a different story. It is illegal to download music onto any digital playback devices you own if you have not purchased the music. Burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player won’t usually raise concerns so long as the copy is made from an authorized original CD that you legitimately own and the copy is just for your personal use. Giving away the copy or lending it to others for copying is not a personal use and is not legal.

What are the consequences if I get caught illegally downloading and/or distributing copyrighted music? Will I go to jail? What are the penalties of downloading?
The consequences vary. Some people who have been caught illegally downloading have faced stiff fines, lawsuits, and other legal penalties. At the very minimum you risk opening your computer up to viruses and hackers, not to mention the trouble it takes to sift through all the fake and mislabeled files on most P2P networks in order to get the song you were looking for.

I like peer-2-peer file-swapping sites because sometimes I only want one song and not the whole album, and other times I am looking for rare or hard to find music. Is there a legal way for me to enjoy online music? Do these options have the variety I am looking for?
Yes! Many legitimate sites offer us the option of just purchasing one song, buying the whole album, or subscribing to a service that allows you to listen to as much music as you like for a monthly fee. These sites are expanding their song lists every day. For a list of legal Web sites that offer digital music downloads,click here.

If I download a song from an unsigned band or artist, am I breaking the law?
The artist still holds a copyright on their songs, even if they are not signed to a major label. The difference is, the unsigned band likely does not have to get approval from a label or publisher before making their material available online. If the unsigned band gives their fans permission to download their songs without charge, it is perfectly legal because they are the copyright holders. This does not mean, however, that they have waived their copyrights forever; it just means that they are giving away free copies as long as they choose to do so. It also does not change the rules as to what you are able to do with that material under copyright law, unless the band specifically states otherwise.

If an artist supports all downloading and doesn't care if I pay for their music or get it on a file-swapping site, does that mean it is legal to download their music?
Generally no. Most artists (at least major, prominent artists) are signed to record labels, and they generally have granted the record labels the exclusive rights to make their music available to the public (which the record labels generally have paid a great deal of money for). In addition, the writers and publishers of the music (i.e., the songs embodied in any given recording) are often different from the artists and the labels, and they hold copyrights to the underlying songs. Only when all copyright holders are in agreement on a particular method of distribution of a work can that work be legally distributed.

Therefore, even though your favorite artist might agree with P2P file-swapping networks, simply having his or her permission is not necessarily enough to legally dowload the music for free.

I don't use peer-2-peer software, but I do send my friends songs via email and instant message. Is that legal?
No, this is not legal. Just because a formal P2P file swapping network is not used, the action of trading a song is still not legal for all of the reasons set forth above (i.e., it involves making and distributing a copy of copyrighted material).