Is downloading of pirated content, such as music or films for a private purpose, a copyright infringement? The answer seems crystal clear in the United States. First of all, downloading copyrighted materials involves the act of reproduction which is covered by the copyright owner's exclusive right of reproduction.~1 Second, downloading for users' private enjoyment is not fair use. In Napster, the defendant contended that its users did not directly infringe plaintiffs' copyrights because they were engaged in fair use of the copyrighted music.~2 The court did not agree. Considering the factors listed in 17 U.S.0 § 107, the court concluded that Napster's users' acts were not fair use on the grounds that (1) downloading MP3 files does not transform the copyrighted work, and the Napster users engage in com-mercial use of the copyright work since they get for free something they would ordinarily have to buy; (2) music compositions and sound record-ings are creative in nature; (3) Napster users copied the entirety of the copyright work; and (4) the market for the copyright work is harmed since audio CD sales among college students are reduced and the plaintiff would encounter barriers to enter the market for digital downloading of music.~3 In Grokster, the Supreme Court also pointed out that the vast majority of P2P software users' downloads are acts of infringement, and even the defendants (distributors of P2P software) conceded infringement in most downloads.~4
展开▼
