Yes, Virginia, downloading copyrighted material without permission is illegal…

There’s a myth I keep hearing that downloading copyrighted music without permission is perfectly legal under US law, and that only uploading is illegal. (I just got an anonymous comment on an old post to that effect, which is why I bring it up now.) I gather the myth spread after the RIAA decided to go after big uploaders but not big downloaders in their jihad, and was bolstered by a NYTimes piece that starts with the line “Downloading music from the Internet is not illegal.”

Unfortunately for would-be downloaders, this is just a myth, as the 9th Circuit’s ruling in A&M Records v. Napster makes clear:

We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders’ exclusive rights: the rights of reproduction, § 106(1); and distribution, § 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights. Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights.

The US Copyright Office’s FAQ also puts it quite plainly:

Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner’s exclusive rights of reproduction and/or distribution.

So what did that old NYTimes article mean when it said downloading is legal? Simply that there is plenty of music available where the copyright holders have already given permission for you to download, share and enjoy. And that, Virginia, is why there is a Santa Claus.