Now That Was How Many Song Samples?

It is not a fair use under the Copyright Act to “sample” entire songs by downloading them from the Internet before deciding whether to buy an album, the Seventh Circuit has found.

Cecilia Gonzalez argued that her downloading over 1,370 copyrighted songs was fair use since she was just sampling music to determine what she liked enough to buy. However, the court did not buy her argument, stating “downloading full copies of copyrighted materials without compensation to authors cannot be deemed ‘fair use.'”

BMG Music only sought damages for 30 songs that Gonzalez admitted she never purchased even though at the time the case was filed she had 1,370 songs on her computer. Moreover, her other argument that she was only a small infringer didn’t sound right to the court, either. “Nor can she defend by observing that other persons were greater offenders; Gonzalez’s theme that she obtained ‘only 30’ (or ‘only 1,300’) copyrighted songs in no more relevant that a thief’s contention that he shoplifted ‘only 30’ compact discs, planning to listen to them at home and pay later for any he liked.”

The appellate court affirmed the trial court’s assessment of minimum statutory damages against Gonzalez of $750 per song or $22,500. The court also affirmed an injunction prohibiting her from downloading additional songs. Gonzalez argued that the injunction was not necessary “because she had learned her lesson, has dropped her broadband access to the Internet, and is unlikely to download copyrighted material again.”

BMG Music v. Gonzalez, No. 05-1314, Seventh Cir., December 9, 2005.