Downloading copyrighted music over peer-to-peer networks—is it legal in the US? Judging by the comments and e-mails that we received while covering the two federal file-swapping trials of 2009, it's clear that some minority of our readership believed that these lawsuits were only about uploading files; some also believed that downloading music was in fact legal as well, and that one was within the law so long as no further sharing took place.

Neither position, however, is accurate.

First up: the question of what exactly was at issue in the trials of Jammie Thomas-Rasset (Minnesota) and Joel Tenenbaum (Massachusetts). RIAA legal complaints are generally boilerplate documents, and the charges against each defendant are largely identical. The Jammie Thomas-Rasset complaint is typical:

Plaintiffs are informed and believe that Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others. In doing so, Defendant has violated Plaintiffs' exclusive rights of reproduction and distribution.

The Copyright Act provides several specific rights to copyright owners, including the right to distribute the work and the right to make copies of the work (the "distribution" and "reproduction" rights). Uploading files on P2P networks can infringe a record company's distribution right, while downloading a file necessarily makes a copy of that file and therefore can infringe the reproduction right. Both rights are mentioned in the recording industry complaints.

In case that language isn't clear enough, the complaints spell it out even more plainly toward the end, when they demand an injunction against the defendant in question. Such an injunction would "ban Thomas from using the Internet or any online media distribution system to reproduce (i.e., download) and of Plaintiffs' Recordings [or] to distribute (i.e., upload) any of Plaintiffs' Recordings."

The industry has always been concerned about both downloads and uploads, and indeed spent a fair bit of time at trial attempting to show that much of the music in a user's share folder was downloaded from P2P networks. In the Thomas-Rasset trial, for instance, record industry lawyers showed that many of the music files in Thomas-Rasset's "share" folder contained metadata showing that they were made by ripping crews—and had presumably been downloaded via P2P.

As for uploading, record industry investigators tried to show this more directly by putting MediaSentry on the witness stand. MediaSentry had identified the IP addresses assigned to Thomas-Rasset and Tenenbaum in the first place and had then downloaded several complete tracks from each user in an attempt to prove that they were distributing files.

The record industry position is clear: both uploads and downloads are illegal, and both can result in lawsuits. We checked in with Electronic Frontier Foundation's Fred von Lohmann to see if he agreed with the music business legal position.

"Does it infringe US copyright law to download music without authorization from a P2P network?" he said. "It depends. If you're a teacher who needs a clip for use in a class presentation, I think there's a good chance it's a fair use. But if you're downloading just because you don't want to pay for the song, then you're probably an infringer. Intermediate cases can be imagined, but that gives a pretty good idea of the two poles."

(When it comes to appropriate penalty for infringement, though, von Lohmann parts ways with the record industry.)

So much for the legality of downloading. Practically speaking, though, mere downloading has not been enough to trigger RIAA attention, due largely to the difficulty of detecting it. MediaSentry and other RIAA investigators can see the files that they download from others, and the IP addresses of those offering the files, but seeing what files those people are themselves downloading can be difficult or impossible.

Canada, a downloader's haven?

Note that the law applies only to a "medium," not a device. Furthermore, it applies only to music; downloading video games or movies remains infringement, since those industries don't receive money from the levy system.

The situation is less clear in other countries, like Canada, where the recording industry has apparently shot itself in the foot by getting exactly what it wanted. Uploading files in Canada is infringement, just as in the US, but downloading files might not be.

That's because the music business long ago convinced the government to slap a levy on various recording media, like blank CDs, to cover "private copying." The levy was not extended to "devices" like the iPod or the PC, however, even though they were certainly able to carry around copies of musical works. The distinction between "media" and "devices" is crucial here, since Canadian courts have ruled that downloads are legal so long as the copies are made onto media that is covered by the private copying levy—not what the record industry envisioned when it had the levy passed.

Perhaps the most famous such decision was made back in 2004 by a federal appellate judge named Konrad von Finckenstein—who now happens to run Canada's top telecoms regulator.

In a 2004 case on file-sharing, von Finckenstein ruled that "the downloading of a song for a person's private use does not constitute infringement." He cited a section of Canada's copyright law which says that copies of musical works downloaded "onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording."

Note that the law applies only to a "medium," not a device. Furthermore, it applies only to music; downloading video games or movies remains infringement, since those industries don't receive money from the levy system.

Not that the major labels in Canada see it this way. "Downloading pirated music is not legal in Canada," wrote Richard Pfohl, the top lawyer for the Canadian Recording Industry Association, to a newspaper in June 2009. "The copyright law conclusions in the case he cites were overturned on appeal. In fact, the Federal Court of Appeal has subsequently twice ruled that the private copying regime doesn't apply to downloads made to hard drives."

But as copyright lawyer Howard Knopf points out, the issue really remains the old "devices" vs. "media" distinction. "The consistent thread of what the Copyright Board said in 2003 and the Federal Court of Appeal said in 2004 and 2008 is that downloading sound recordings onto something that is not an 'audio recording medium' may be infringing," he wrote.

So downloading music to an iPod or a computer's internal hard drive might well be infringement, but Knopf argues that "an external plug and play hard drive that is clearly not in any sense 'embedded' in anything and serves no function other than to be a large memory medium may very well be 'audio recording media.' In that case, downloading any sound recording onto them obtained in any way from any source for private use would be legal in Canada, regardless of whether a levy has ever been sought from the Copyright Board."

All clear?