Replies

"So was her purpose education, or public service?"

Try not to shoot from the hip...

A 12 year old kid listening to music or sharing it with her friends could very well fit into "free use".

See below:

Sec. 107. - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1)

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

...Her use was clearly nonprofit, and to a kid, educational

(2)

the nature of the copyrighted work;

...work that is given away free on the radio

(3)

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

...not downloading the whole work, just one song of an arangement

(4)

the effect of the use upon the potential market for or value of the copyrighted work.

...Since she would probably not be in a position to buy it, she did not effect the market

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors

So there!

...Her use was clearly nonprofit, and to a kid, educational

So you really believe this was for education and not for entertainment? It really must have galled her to do that much homework.

Since she would probably not be in a position to buy it, she did not effect the market

But she was distributing the files to people who likely were in a position to buy it. She undoubtedly did affect the market.

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
...Her use was clearly nonprofit, and to a kid, educational
(2) the nature of the copyrighted work;
...work that is given away free on the radio
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
...not downloading the whole work, just one song of an arangement
(4) the effect of the use upon the potential market for or value of the copyrighted work.
...Since she would probably not be in a position to buy it, she did not effect the market

1. Sorry, the educational argument doesn't work. Entertainment is a commercial -- not educational -- activity, and whether or not the kid was running a profit enterprise is not the question.

2. The fact that music is broadcast on the radio does not mean it is "given away for free". Sorry, try again.

3. Each song IS a "work". A CD is a compilation of works. To qualify under this standard, the files downloaded would have to consist of mere snippets or a couple of lines from a song -- not the whole song. Nice try, but that dog won't hunt.

4. To suggest she did not affect the market is like suggesting that a shoplifter who just steals one pair of jeans doesn't affect the market. Sorry, but again the argument fails.