Case Summary: No Defenses to Unauthorized Downloading

Not every person sued by record labels for unauthorized downloading of music has thousands of files on her hard drive. Just 30 recordings were at issue in a suit brought against Cecilia Gonzalez in Ch

Not every person sued by record labels for unauthorized downloading of music has thousands of files on her hard drive. Just 30 recordings were at issue in a suit brought against Cecilia Gonzalez in Chicago.

Even so, her lawyers fought the suit, raising a number of defenses. Each one, however, was unsuccessful.

BMG Music, Sony Entertainment Inc., UMG Recordings Inc., Fonovisa Inc. and Atlantic Recording Corp. brought an action against Gonzalez for copyright infringement in the U.S. District Court for the Northern District of Illinois. After limited discovery, the labels moved for a summary judgment.

Gonzalez admitted that she infringed the copyrights by downloading the songs from the Internet to her home computer. She challenged the motion for summary judgment, however, on the grounds that there were genuine issues of material fact to be determined as to whether: (1) her downloading was a fair use, relieving her of liability; and (2) she was an "innocent infringer," which could reduce the amount of damages.

FAIR USE: Gonzalez claimed that her downloading constituted fair use because she: (1) was just "sampling" the songs to determine if she wanted to purchase them; (2) already owned many of the songs she downloaded; and (3) did not cause any financial harm by downloading 30 songs.

The District Court rejected these arguments.

First, the court held that sampling was not a fair use, referring to the Ninth Circuit Court of Appeals decision in A & M Records Inc. v. Napster (239 F.3d 239 F.3d 1004) as precedent.

Second, the court noted that the labels only sought redress for the songs Gonzalez admittedly did not own. Therefore, ownership of copies was not relevant in the case.

Finally, the court again cited the Napster decision as precedent for holding that "the cumulative effect of direct infringers, like Gonzalez, harms the recording industry by reducing sales and 'raising barriers' to the recording industry's 'entry into the market for digital downloading of music.'" As a result, she could not claim that her actions did not cause financial harm.

INNOCENT INFRINGEMENT: Gonzalez also claimed that even the minimum statutory damages sought by the labels were too high. She contended that there was an issue of fact as to whether she was an innocent infringer. This would have permitted the court to use its discretion to award damages of only $200 if she had no reason to believe that her acts constituted infringement.

The court noted that this defense was not available if a copyright notice appeared on the recordings to which the infringer had access.

It was not disputed that the copyrights of the 30 songs were properly noticed on the covers of the CDs. However, Gonzalez said there was a question of fact whether she had access to the notice.

The court stated that Gonzalez did not have actual possession of these CDs. However, it held that copyright law "does not require proof that the infringer had 'actual possession.'" The labels only had to show that the CDs with notice "were in circulation (and) available" to her.

Noting that Gonzalez admitted that she and her husband legally purchased over 200 CDs, the court wrote: "To allow Gonzalez to assert this defense based on her ignorance would eviscerate copyright protection and the old adage that 'ignorance is no defense to the law.'"

LEGAL RELIEF: The labels sought statutory damages and an injunction.

The court awarded the labels $22,500, which was the minimum statutory amount of $750-per-infringement multiplied by the 30 songs.

Gonzalez fought the requested injunction that sought to prohibit her from downloading any of the labels' recordings in the future. She claimed that she no longer had online access, so she did not present a risk of future infringement.

The court disagreed, noting that there was nothing to prevent her from reconnecting to the Internet and resuming her infringement. The court issued the injunction prohibiting her from downloading any recordings owned by the labels.

Case: BMG Music et al. v. Gonzalez, Jan. 7, 2005
Court: U.S. District Court for the Norther District of Illinois
Attorneys for Plaintiffs: David A. Steinberg and Eric J. German, Mitchell Silberberg and Knupp, Los Angeles
Attorneys for Defendant: Geoffrey A. Baker and Anthony E. Dowell, Dowell Baker, Oak Park, Ill.