We've all heard of these rather ominous-sounding terms in the world of digital media: "piracy," "infringement," "copyright troll," etc.

But where exactly do the boundaries lie, and what defines an illegal download when you choose to view content on YouTube or another video sharing service? How about when repurposing portions of a previously released film as part of your video?

This article explores the boundaries of permissible versus impermissible conduct in the realm of downloading, file sharing and (alleged) copyright infringement.

What is Copyright?

A copyright is a legal right granting the creator of an original work—such as a song, book or film—exclusive rights to the use and distribution of the work. Under the U.S. Copyright Act, the holder of a copyright has the exclusive rights to reproduce, distribute, perform and display the work.

Any person who infringes on a copyright—e.g. by reproducing or redistributing the work without advance permission from the work’s creator—can be subject to penalties, both civil and criminal in nature. A person found liable for civil copyright infringement may be ordered to pay either actual damages or “statutory” damages equaling no less than $750 and no more than $30,000 per work infringed. As a practical matter, the U.S. government rarely pursues criminal copyright charges against an individual or company unless the infringement is willful, motivated by profit, and ultimately results in widespread distribution of the work at issue.

What is File Sharing?

Almost everyone with an internet connection has heard of, or used, a file sharing site. The term “file sharing site” can refer to a wide range of sites that may serve as a repository for audio or visual files uploaded by a site visitor. Those files are then available for download by other site visitors/users. YouTube is one extremely popular and current example of a video file sharing site.

Several popular audio file sharing sites preceded YouTube, including the well-known Napster, which temporarily shuttered after losing a lawsuit filed by the Recording Industry Association of America (RIAA) for refusing to comply with song artists’ requests that their copyrighted works be removed from the site. Napster played a limited role in the background of an extremely well-known civil case involving unlawful file sharing.

Sony BMG v. Tenenbaum

One of the chief cautionary tales demonstrating the risks of uploading a copyrighted work to a file sharing site without first receiving advance permission is BMG v. Tenenbaum. The Tenenbaum case involved a Boston University student named Joel Tenenbaum, who was sued in August 2007 in federal court by five major record labels. The record labels accused Tenenbaum of uploading dozens of copyrighted songs to the website Kazaa, from where the songs were then downloaded by numerous other individuals. Allegedly, Tenenbaum had previously uploaded songs to the websites Napster and LimeWire.

The record labels accused Tenenbaum of violating the U.S. Copyright Act. The case went to trial in July 2009, and the trial court judge entered a finding of liability under the Copyright Act against Tenenbaum for distributing 30 copyrighted songs on the Kazaa site. A jury then assessed damages against Tenenbaum in the amount of $675,000. The trial judge reduced Tenenbaum’s damages to $67,500, reasoning that the hefty $675,000 penalty was unconstitutionally high and violated Tenenbaum’s due process rights. During the trial, on the witness stand, Tenenbaum had admitted to uploading the 30 songs in question without obtaining the record labels’ prior permission.

Both parties then appealed, and the U.S. court of appeals for the First Circuit reinstated the original damages award of $675,000. Tenenbaum appealed to the U.S. Supreme Court but was unsuccessful. The penalties for unlawfully distributing copyrighted works can be steep—and not easy to pay off on a college student’s budget.

Liability for Downloading Copyrighted Content

In general, you face greater potential risk of civil suit by an aggrieved copyright holder if you upload copyrighted works onto file sharing services such as YouTube, where they're available for viewing by other members of the public (as in the Tenenbaum case), than if you download such copyrighted material for your own personal use.

As a legal matter, however, even the downloading of a copyrighted work is unlawful under the U.S. Copyright Act, under the theory that a person who downloads the file for viewing from the file sharing site has unlawfully “reproduced” the work (in the act of the download).

As a practical matter, it is far more difficult for copyright holders—even large record companies and movie studios—to pursue individual unlawful downloaders because of the time, effort and expenses required to identify (and then sue) individual downloaders of copyrighted works. This does not mean that you should simply click away on copyrighted works on free sites, when it is unclear if the original copyright holder has given permission for the distribution of the work; if you want to play it safe, make your next download from iTunes or Netflix (or a similar site).

Copyright Trolls

Even today, many individuals who have downloaded a copyrighted work from a free file sharing site can attest to stories of having received a letter from an official-sounding group claiming copyright infringement, and threatening litigation. No blanket statement can be made concerning the legal validity of any claims in such letters, as to whether you:

  • Downloaded the work asserted in the letter.
  • Violated the Copyright Act in doing so.
  • Face a real, imminent threat of being sued by the copyright holder for having engaged in the downloading activity.

Some of these "demand letters" are simply scams. A Chicago-based law firm known as Prenda Law engaged in unscrupulous conduct in compiling and sending mass lists of such letters, resulting in sanctions from a federal judge in southern California, who remarked that Prenda had engaged in “brazen misconduct and relentless fraud,” as well as and “vexatious litigation.” Prenda Law later changed its name to the “Anti-Piracy Law Group.” Other unscrupulous law firms have engaged in similar tactics, deservedly earning the reputation as "copyright trolls." If you receive such a letter, it is best to consult with an attorney concerning any required response on your part.

The Megaupload Saga

Though Napster lost steam after facing the headwinds of copyright litigation, other novel sites have since sought to capitalize on the public appetite for file sharing, while allegedly crossing the line of permissible activities under the Copyright Act.

A Sweden-based site, suggestively named “Pirate Bay,” has been banned in several countries (via orders that internet service providers block access); furthermore, the site Megaupload.com was shuttered after U.S. federal prosecutors indicted Megaupload’s eponymous founder Kim Dotcom and several associates for criminal copyright infringement. The Megaupload criminal case remains pending as the U.S. wrangles with Dotcom’s attorneys, seeking Dotcom’s extradition from New Zealand to the United States.

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The above article does not provide legal advice, and instead provides general information.