Is file-sharing legal?

The Government’s announcement that it was considering laws to disconnect illegal file-sharers from the internet stirred a lot of debate in the media. However, it remains unclear to many people what illegal file-sharing actually entails, and whether their actions, or those of family members, are genuinely breaking the law.

We spoke with Graham Smith, a solicitor with Bird & Bird law firm, and Steven James, a solicitor with Pinsent Masons, to answer the most common questions about file-sharing.

WHAT IS FILE-SHARING?

Everybody talks about file-sharing, but you won’t find a neat definition in any statute or legal dictionary, and while the focus of the debate has been on The Pirate Bay and software such as LimeWire, UK copyright law throws a much wider net.

When you download a file using peer-to-peer file-sharing software such as LimeWire or BitTorrent, you’re technically considered to be making
a copy. If you then upload that file to the internet for others to download, you’re making a new copy available to the public.

If that file is copyrighted, then both practices are illegal. But copyright law doesn’t stop at file-sharing software. Emailing a track ripped from a CD to a friend isn’t classified as file-sharing, but it is still illegal. In the eyes of the law, the moment that email hits your friend’s inbox, you’ve created a new copy without first obtaining the permission of the rights holder.

CAN I DOWNLOAD SONGS FROM INTERNET RADIO STATIONS?

This is where things get murkier. Some commercial software packages let you scan the internet for digital radio stations and record specific tracks to your hard drive. According to Graham Smith, this “could be legal under the time-shifting provisions of the Copyright Act, so long
as the copy is made within domestic premises, for private and domestic use, and solely for the purpose of enabling it to be listened to at a more convenient time”. It has nothing to say about scanning US radio stations, however.

IS IT LEGAL TO DOWNLOAD SONGS OR VIDEOS I ALREADY OWN?

In short, no. When you download a track from a file-sharing site, the law assumes you’re making a new copy without the permission of the rights holder.

CAN I MAKE BACKUPS OF MUSIC I ALREADY OWN?

It’s a perennial question. Over the years, it’s been common practice for people to rip tracks from CDs in order to play them on MP3 players. The technical term for this is format-shifting and it remains something of a grey area under UK law.

“In the UK it’s technically an infringement, but in practice nobody’s ever going to be hauled before the courts for it,” notes Steven James.

Indeed, in a submission to the Gowers Review in June 2006, the BPI clarified that it wouldn’t pursue consumers for ripping tracks from CDs they’d bought. The UK Government is now considering making format-shifting an exception under copyright law.

Interestingly, the Government is proposing applying the format-shifting exception to movies as well as music.

IS FILE-SHARING SOFTWARE LEGAL?

When the RIAA announced it was suing Napster in 1999, many people assumed it was the technology itself that the music body was objecting to. In truth, it was specifically the fact that Napster was using its software to distribute copyrighted music tracks that drew the RIAA’s ire, and the same remains true of today’s file-sharing technology.

LimeWire and BitTorrent are perfectly legal and have a multitude of legitimate uses. Indeed, the BBC used a client built on the same peer-to-peer protocol as BitTorrent to serve programmes during the early days of its iPlayer.

However, if the developer of the software goes on to encourage people to use it for illegal activities, such as downloading copyrighted content, or indeed builds its business model around this activity, then there’s a significant chance they’ll find themselves on the receiving end of a lawsuit.

This was what happened to Grokster in the US, and it’s far from the only culprit. The Pirate Bay, for example, provided an index of copyrighted material, but didn’t actually host it. This became the crux of its defence when a consortium of media giants, including Sony, Columbia Pictures, Warner Bros and EMI, came knocking in April 2008, demanding the site be closed down.

After a drawn-out court case now notorious for its drama and showboating, a judge ruled that The Pirate Bay had encouraged users to upload and download infringing material. This, coupled with the site’s tendency to belittle and ignore requests to remove links to infringing material, led to fines of $3.6 million and one-year jail sentences for The Pirate Bay’s four founders.