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>  News Releases >   2003 >   May

Copying copyrighted MP3s and CDs illegal, counsel says

Posted 05/17/03

Robert Donin
(photo by Joe Mehling '69)
Dartmouth's General Counsel explains legal issues surrounding digital file sharing

Peer-to-peer digital file-sharing programs, which allow users to copy files from computer to computer across networks, were recently the subject of lawsuits brought by the Recording Industries Association of America (RIAA) against four non-Dartmouth undergraduates. The RIAA accused students at Michigan Technological University, Princeton, and Rensselaer Polytechnic University of illegally sharing copyrighted material - in these cases music - on their campus networks and asked for penalties of up to $150,000 dollars for each illegal recording. Though the cases were recently settled out of court, the recording industry has indicated that it will continue to crack down on what it sees as an illegal threat to its business.

We asked Robert Donin, Dartmouth's General Counsel, to help us understand the legal issues surrounding this technology.

VOX: Why is it illegal to use file-sharing programs to obtain copyrighted material?

Donin: Under the Copyright Act, electronic works like music and videos are "works of authorship" just like books or art. The creators of electronic works have the exclusive right to reproduce and distribute their creations. Copying and sharing MP3 files through peer-to-peer (P2P) technology, or through purchasing a CD or DVD and then making copies for others, violates these exclusive rights. Because of the ease with which MP3s and other electronic files can be shared, and the perception that file-sharing can go undetected, people who would never dream of walking out of a record store without paying for a CD will casually reproduce copyrighted music or videos.

V: Napster, the original digital file-sharing network, began operation in 1999. Why are these suits being filed now?

D: The recording industry sued Napster for copyright infringement and won. But other peer-to-peer ("P2P") file sharing systems like Kazaa and Direct Connect continued to flourish, and sales of CDs declined significantly last year.

V: What is Dartmouth's responsibility under the Copyright Law? What are Dartmouth's policies in this area?

D: Once Dartmouth becomes aware of infringing activity, it has the obligation to take corrective action. Specifically, the law requires service providers to deny network access to "repeat infringers." Otherwise, the College itself can be held liable. Under the College's Information Technology Policy, infringing activity is prohibited and may subject students or employees to disciplinary action.

V: But didn't a court recently decide that the Grokster file-sharing system was legal?

D: P2P technologies have many legitimate uses, such as distributing public domain materials or materials that the copyright owner has authorized you to distribute. For this reason, Dartmouth does not ban P2P programs from its network. In the Grokster case, a lower court issued a decision - which is being appealed - that held that the file-sharing system itself was not illegal, because the copyrighted files did not go through Grokster's computer. But this decision provides no protection for those who use Grokster or other P2P technology to copy commercial music and video files for personal enjoyment.

V: Isn't this just a problem with students?

D: Press coverage has focused mostly on students, but faculty and staff members also need to remember that using the Dartmouth computer system to reproduce copyrighted material violates both the Copyright Act and Dartmouth policy.

V: But if everyone breaks the rules, how can you punish just one person?

D: Just because the government, or a company that sues you, or the College's Committee on Standards, cannot administer punishments to all offenders does not mean that they cannot administer them at all. As with speeding tickets, "everyone else was doing it" will not provide an excuse for illegal behavior.

V: What about fair use?

D: Fair use is a copyright doctrine that allows use of limited portions of a copyrighted work, without the permission of the copyright owner, for purposes such as scholarship, research, and criticism. For example, it's fine to quote from a book when writing about it, but it's not okay to reproduce the entire book. But fair use is harder to apply with musical works or videos. The General Counsel's Office is available to counsel members of the College community on fair use.

V: But aren't professors able to use copyrighted materials for educational purposes?

D: In certain circumstances, yes. For example, the so-called "classroom exemption" of copyright law generally says that it is permissible to use copyrighted work in the course of classroom instruction. In addition, there are guidelines that allow instructors to copy limited amounts of material for distribution in class when the need is unanticipated and there isn't enough time to obtain permission. Here again, our office can provide more specific guidance.

V: What are the penalties for using file-sharing systems illegally?

D: There are both civil and criminal penalties. On the civil side, the law entitles a plaintiff to seek statutory damages of $150,000 for each act of willful infringement. In the case of music, each recording is an act of willful infringement. In addition, persons found to have infringed may be required to pay the plaintiff's attorney's fees. Copyright infringement also carries criminal penalties under the federal No Electronic Theft Act. Depending on the number and value of the products exchanged, penalties for a first offense may be as high as three years in prison and a fine of $250,000.

V: How often does Dartmouth receive "take down" notices from the recording industry or other copyright holders?

D: In an average month, Dartmouth receives about 25 notices. The webmaster forwards these notices to the individuals whose computers are involved and asks them to discontinue the infringing activity. Most people comply.

V: What are some ways in which members of the Dartmouth community can download copyrighted digital material legally?

D: Some MP3s can be legally obtained through online subscription services or from sites officially permitted by the copyright holders to offer MP3 downloads. Some of these "pay for play" services are Pressplay, Rhapsody, and the new iTunes service begun by Apple Computer.

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