Five Things You Must Know About Illegal File Sharing

The following guest post was written by Dave Owens, a 2010 graduate of the University of San Francisco School of Law.

In a post Napster world, fewer and fewer young people have an ethical dilemma with using peer-to-peer (“P2P”) file sharing to download copyrighted material. To some it may seem so common that legal ramifications are not a reality. But those who engage in P2P file sharing should be aware that media companies have been vigilant in enforcing their copyrights.

For instance, earlier this year the producers of The Hurt Locker sued 5,000 individuals who illegally downloaded their film via Bit Torrent. Now it’s important to note that P2P programs can be used for a variety of non-infringing uses. But before downloading or sharing any material, an individual should be aware of the following:

Find Out the Five Things You Must Know About Illegal File Sharing

5.  File Sharing Can Make You Susceptible to Viruses

This is not a legal issue, but something you should definitely be aware of. You generally will not know with whom you are sharing files. The files may contain spyware, viruses, Trojan horses, and/or worms. Open ports on your firewall can make you susceptible — a hacker may be able to access your personal computer. Enabling your firewall or installing anti-virus software can minimize these risks.

4.    The Internet Isn’t as Anonymous as you Think

The Internet allows you to create email addresses, usernames, and avatars to disguise your identity. You may think that these measures will shield you from liability. They won’t.

The infringement can be identified through your IP address. What’s an IP address? It’s basically a social security number for your computer. Your network assigns a unique identifying number to the computer. A copyright holder can then subpoena the Internet Service Provider and trace the infringing activity back to you.

3. File Sharing is Likely Not a Fair Use

There is a great misconception about what “fair use” means. It is an affirmative defense, which means you have a right to raise the defense if you get sued. The Copyright Act lists four factors that courts should consider:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for the value of the copyrighted work.

It is unlikely a court will find that sharing or downloading a full copyrighted work meets this criteria. Recently Harvard law professor Charles Neeson argued on behalf of his client that sharing 800 copyrighted songs via P2P networks was a fair use. The judge didn’t buy it. And it’s unlikely any judge would. If you get sued for sharing full copyrighted works, you’re most likely going to lose.

2. Litigation is Draining

If you don’t settle with the copyright holder, litigation will be a trying process. Copyright litigation can costs tens of thousands of dollars, if not more.

But beyond just monetary concerns, it can be emotionally draining for you. The legal process can take months, even years, to resolve. For a client this means responding to discovery requests, testifying at depositions and trial, and constant stress and worrying.

No one can fully appreciate the emotional toll of litigation until they experience it firsthand.

1. The Fines Are Expensive

In 2009 Jammie Thomas-Rasset was ordered to pay $1.92 million dollars for illegally downloading 24 songs. The Copyright Act allows juries to award damages of $150,000 per infringement.  A judge later reduced the fine to $54,000, which is still an enormous fee for anyone.

To be fair, the average defendant won’t be required to pay this amount. Thomas-Rasset opted not to settle with the plaintiff, the Recording Industry Association of America (“RIAA”). But it was reported that the average settlement with the RIAA was still $3,500. Either way, it would have been much cheaper to purchase the content in the first place.

Dave Owens is a 2010 graduate of the University of San Francisco School of Law.  He can be reached at [email protected]  The information contained in this blog post is provided only as general information for education purposes.

Photo Credit: Flicker/Mariosundar