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Downloading Songs Part of Protected Speech

March, 2009

An Internet law expert argues that automatically punishing those who illegally download music violates the First Amendment.

"The First Amendment comes into play because downloading is a form of speech," said Ned Snow, assistant professor in the School of Law. "Downloading is the same as copying, and copying is a form of expression."

In his article, "Copytraps," Snow emphasizes that the First Amendment protects the act of downloading when the downloader has permission to make a copy. Snow argues that legal downloading, however, is chilled by the potential for "copytraps," Web sites that falsely represent downloading as legal. The automatic and severe punishment of innocent downloaders makes Internet users reluctant to download material that seems legal.

If a copyright holder has not authorized the downloading, regardless of a Web site's representations or appearance, the downloader is liable and can be fined a minimum of $750 per downloaded song. This automatic punishment, Snow argues, penalizes innocent Internet users who have no means to know that the material offered on a Web site infringes a copyright.

"Internet users who are aware of the law or who have fallen victim to a 'copytrap' are much more wary of sites purporting to offer legal downloads," Snow said.

This wariness is the essence of Snow's argument that "copytraps" may inhibit users from downloading legal material, and that inhibition represents a restraint on speech protected by the First Amendment.