Does the fair use doctrine permit users to download MP3 files to make temporary copies of copyrighted sound recordings to “sample” the music before deciding whether to purchase the recording?
No. The courts that have considered this issue thus far have held that allowing users to download a full, free, and permanent copy of the copyrighted recording would be a commercial use that would adversely affect the copyright owners’ market for their work. The Napster court observed that “even if sampling enhanced the audio CD sales of the recording, the benefit to the copyright owner is not a sufficient indication of fair use.” Further, the court held, even if the sampling benefited the copyright owner’s audio CD sales, the copyright owner still enjoyed the right to develop alternative markets, such as the digital download market, and not to have such market usurped from them. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
