Once upon a time a UK music band put one of their songs on their website for free download. Time has passed, the website has changed drastically and the song is not available there anymore. Neither it is sold by anyone anywhere.

Would it be illegal for those who downloaded the song when it was available, to put it now on file sharing resources for free download?

2 Answers 2


It would be copyright infringement. You had the copyright holders permission to make one copy of the song by downloading it. At that time, if you gave me a copy of that song, it could be argued that very, very little damage was caused because I just had downloaded that song myself with practically the same effect.

Today, that argument is not valid anymore. So this is definitely copyright infringement. That's your question answered. I doubt that anyone would take action if you gave a copy to someone and it was found out. Making it available to the world for free download is another matter. That could easily get you into trouble; in the USA there could be a fine up to $150,000 without any proof of actual damages needed.


According to Renckhoff, Case C‑161/17, rendered on 2018-08-07 (see also this summary on IPKat), this constitutes an unauthorized communication to the public. The case involved whether a re-upload of a photograph that was already made freely available by consent of the photographer is an infringement. Paragraph 28:

[...] In particular, the communication of a work by means not of a hyperlink, but by a new posting on a different website from that on which it was initially communicated with the consent of the copyright holder, should be treated as a ‘new communication to the public’, in particular, having regard to the fact that, as a result of the making available of the photograph once again, the copyright holder is no longer in a position to exercise his power of control over the initial communication of that work.

That the copyright holder must be able to exercise power of control over the initial communication was determined in Soulier & Doke, and as pointed out in the IPKat article, Renckhoff isn't really that big an extension on existing EU copyright case law.

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