Downloading music from the Internet

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  • We have a Technology & Society instructor at our community college who requires that her students select a song that represents changes occurring in society. For their presentation, the students need to provide a written copy of the words to the song for class members and bring a CD of the song to be played in class. Needless to say, this is causing lots of problems in the library where students want to download music from the Internet for their presentations. The instructor says she tells her students not to do anything illegal. The problem is the students don't necessarily know what's illegal, and our staff is also grappling with the legality issues. Can anyone help with this issue? Do you have a library policy statement on this that you would share?
  • No one can give you a definitive answer unless someone gets sued and a judge makes a determination. Copyright law just doesn't provide concrete answers.

    However, I think that your students are reasonably safe. If I were in this situation, I would have no problem downloading a single song, assuming that I could find it on the internet.

    I believe that each student's use is a fair use. Fair use is determined by the four factors listed in the law. Every situation is different and requires its own determination. In your case, I think it is safe to do one determination for every student. I think you should make your own determination and explain it to the student. However, the students are the people who need to be comfortable with the determination.

    Here are the four factors:

    1. Nature of use
    2. Character of work
    3. Amount used
    4. Effect on market

    Here's my determination:
    1. Educational, not commercial. This works in the students' favor.
    2. Creative, not factual. This works against the students.
    3. The whole song. This works against the students.

    4. Most people agree that the fourth factor is the most important. In my opinion, each student's use has a negligible effect on the market. However, the record companies will disagree. Only a judge deciding a case can make a legally binding determination.

    In my opinion, each student is an individual and is responsible only for his or her own use. So, what other students are doing should have no bearing on each student's determination.

    In a worst case scenario, each student is depriving the record company of a single sale. How much can a single sale affect the market?

    You might want to check my math. Bob Dylan's album "The Times They Are A-Changin" has been certified gold. Keep in mind I'm talking about an album, not a single.
    Gold = 500,000.
    1 use divided by 500,000 sales times 100 = .0002%
    I call that negligible. Therefore, I think the fourth factor works in your favor.

    If I were one of the students, I would have no doubt that my use is fair. However, as I said, each student needs to be comfortable with the determination.

    Another issue is where to find these songs. Personally, I don't know where to download an entire song for free. If a student is getting the song from a source dedicated to free file transfers, the record companies might be watching. I don't really know how to judge the risk involved. I suspect that a single download will not be noticed.

    Your students also might be risk damaging their computers if they install file-sharing software that gives unknown people the ability to access their system. I've never done this and have no way to judge the risk.

    If you have any questions about anything I've said, just ask.
  • It's a complicated issue...

    Libraries shouldn't be liable for the copying actions of their patrons, and shouldn't be in a position to judge patron use- although advising might be all right, particularly when a patron requests help. However, a librarian cannot tell you if a use violates or does not violate copyright with certainty- particularly in an educational setting, where fair use is prevalent. Fair use can only be stated with 100% certainty in a court case on a case by case basis. For regular library copying, the library has some Section 108 protections provided it meets the Section 108 criteria and some Section 109 protections as well. For patron digital reproduction, however, the patron is more likely to rely on fair use. Note that the library user is the active agent, not the library staff.

    If a librarian is acting as an Internet Service Provider, they may have some protection created by the DMCA. However, in order to qualify for protection from liability the libraries must be passive agents- not knowing that an infringment has occurred. There are also other many other elements that a library needs to fulfill. Those can be problematic, and I'm not sure if they'll help in this case.

    In this case, the students don't necessarily know what's legal, and it's difficult to determine what is and isn't legal. It is likely that the use of a P2P file system is not legal, assuming that the P2P system makes content available to others as it downloads content. But only downloading a song may or may not be legal dependent on the situation. How is the student getting a copy of the song? Is the song licensed with a permissive license? Is copying the song a fair use? And to determine fair use, the person actually has to do a fair use evaluation.

    It's a good idea to have posted signs by the computers similar to signs that are posted near copy machines, in my opinion. You might want to see if your computer labs at the college have any kind of posted policy. It's a difficult balance to strike, because it's important that we don't restrict legitimate uses and in many cases we aren't in a position to say if a use is really legitimate.
  • While downlaoding one song for class purposes might arguably be a fair use, why not consider other definitely non-infringing alternatives. Why not suggest that students use a song from a free site - many artists choose to offer some of their music free on the Web. Or perhaps the student has already downloaded a song from iTunes or something like that.

    I guess I also take issue with the idea that students don't know what is legal or not. While we have only done some preliminary research in this area, we have found that students know when downloading is infringing. For various reasons, many just don't care or are perfectly willing to take a risk. Some say they realize that they are infringing but are angry with the record companies. Or they argue that the real artists are not being compensated anyhow.

    I would be careful to control the appearance that the institution is facilitating infringement. ("My teacher told me to do it.") While we do not know of any litigation in this area (other than RIAA going right after the offenders), we don't need to fuel the fire of discord. The RIAA already has too much control over policy setting activities at universities (my opinion, not the people I work for).

  • Here's one suggestion for a site where students will likely be able to find music they can use:

    All of these are licensed by Creative Commons licenses, which explicitly allow many uses. Creative Commons is a pretty decent site in general if you're looking for content that you can use.

    [Edit] My informal questions to my students shows the opposite may be true as well- students can think they are infringing, but might very well not be. And many of them- particularly the ones that aren't technologically savvy- have no idea that they're infringing. Which is why we need to do more formal research. :P

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