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Is Downloading Illegal? · Sunday January 25, 2009 by Crosbie Fitch

There is considerable propaganda attempting to mislead the public into believing that downloading is a criminal act on the part of the downloader, e.g. “Illegal downloads caused considerable losses to the music industry last year” or “If you download copyrighted music you are committing a serious crime”.

So, let’s get the legality of downloading established once and for all:

  1. Downloading is the act of communicating a file from a supplier’s server computer to a recipient’s client computer, at the latter’s request, and at the former’s consent.
  2. Downloading a file (containing or representing an intellectual work) involves the manufacture of a copy.
  3. The copy is manufactured by the supplier (by their server) because they (unlike the downloader) are in receipt or possession of the source work, or have access to it.
  4. The manufactured copy is communicated by the supplier to the downloader (the recipient) via a computer network (whether electronically, optically, or by radio transmission, etc.).
  5. The downloader receives the manufactured copy, but does not participate in its manufacture (impossible without the source) in the download process.
  6. It is possible that ephemeral, intermediate copies were produced by the network and other devices during the transmission of the copy and its storage by the recipient.
  7. The recipient (their client computer) may have had to assemble the final file if the copy was transmitted in small fragments rather than in one piece, however, the act of such assembly does not constitute copying.

If the intellectual work is not protected by copyright no infringement can occur.

If the intellectual work is protected by copyright, and the supplier is not licensed by all copyright holders to the work to manufacture and distribute copies, then the supplier may infringe copyright in the process of manufacturing and supplying copies to downloaders.

In no case does the downloader, the recipient of a downloaded file, commit copyright infringement.

Having downloaded, the downloader may then commence the manufacture and supply of further copies to others, which is of course a potential infringement.

Culpability for copyright infringement lies not with who requests an act of copying, nor with who receives a copy, but with who performs the critical act of manufacturing a copy (and who distributes/transmits it).

In conclusion:

  • Downloading may involve copyright infringement, but this is not an act committed by the downloader.

Alex Bowles said 3770 days ago :

This is dangerousnly clear, Mr. Fitch. You should be careful with this stuff. It may lead to actual understanding, and an unshakable resistance to propaganda. Many people will be unpleased.

However, some of the people who will be very pleased can be found on Jon Taplin’s blog (Communications Prof at USC’s Annenberg school).

Apple’s abandonment of DRM prompted an excellent conversation, to which this bit of clarity is an excellent contribution. I’ve taken the liberty of reposting the whole thing there (http://jontaplin.com/2009/01/07/drm-rip), with a link back here.

Cheers,

AB

Crosbie Fitch said 3767 days ago :

Thanks Alex, it was quite an interesting conversation on that Taplin blog.



 

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