Advanced Copyright Issues on the Internet - Fenwick & West LLP

(o) use in certain other cases of minor importance where exceptions or limitationsalready exist under national law, provided that they only concern analogue usesand do not affect the free circulation of goods and services within theCommunity, without prejudice to the other exceptions and limitations containedin this Article.Note that, unlike many of the exceptions of Article 5(2), the exceptions of Article 5(3)are not conditioned upon fair compensation to the rightholders.6. Peer-to-Peer File Sharing(a) BMG Music v. GonzalezIn BMG Music v. Gonzalez, 183 defendant Cecilia Gonzalez sought to defend herdownloading of more than 1370 copyrighted songs through the Kazaa file-sharing network byarguing that her actions should fall under the fair use doctrine on the theory that she was justsampling the music to determine what she liked sufficiently to buy at retail. 184 The SeventhCircuit rejected this argument out of hand. Focusing principally on the fourth fair use factor –the effect of the use upon the potential market for or value of the copyrighted work – JudgeEasterbrook noted that as file sharing had increased over the last four years, sales of recordedmusic had dropped by approximately 30%. Although other economic factors may havecontributed, he noted that the events were likely related. 185He further noted that rights holders had economic interests beyond selling compact discscontaining collections of works – specifically, there was also a market in ways to introducepotential consumers to music. Noting that many radio stations stream their content over theInternet, paying a fee for the right to do so, he noted that Gonzalez could have listened tostreaming music to sample songs for purchase, and had she done so, the rights holders wouldhave received royalties from the broadcasters. 186 Rejecting the proffered fair use defense, JudgeEasterbrook stated, “<strong>Copyright</strong> law lets authors make their own decisions about how best topromote their works; copiers such as Gonzalez cannot ask courts (and juries) to second-guess themarket and call wholesale copying ‘fair use’ if they think that authors err in understanding theirown economic interests or that Congress erred in granting authors the rights in the copyrightstatute.” 187The plaintiffs sought statutory damages for Gonzalez’ unauthorized copying, seeking theminimum amount of $750 per work infringed. Gonzalez sought to reduce the award below the$750 minimum by arguing under Section 504(c)(2) that she was not aware and had no reason tobelieve that her acts constituted infringement of copyright. The district court rejected the request183184185186187430 F.3d 999 (7 th Cir. 2005).Id. at 889-90.Id. at 890.Id. at 891.Id.- 57 -