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Peer-to-Peer Copyright Issues
JimCYL writes "Fred von Lohmann, Attorney and visiting researcher at the Berkeley Center for Law and Technology, recently posted this article on the Electronic Frontier Foundation (www.eff.org) website. It's part crash course on copyright, part guidebook on how not to have your P2P file sharing service sued. All in all, very interesting for those of us who are interested in copyrights in cyberspace." Very informative and very well-written - this is one to bookmark, especially if you plan to do any development on a P2P application.
Copyright laws apply to the product, not the means of transmission.
This was an excellent article, and towards the end, which some of you may have missed, is a list of things you can do as a peer-to-peer developer or designer to prevent legal liability. These are very interesting suggestions...
;)
1) Your two options: total control or total anarchy.
So, either a secure and monitored Napster or an efficient Gnutella are the two most resistant architectures. This has pretty broad implications.
2) Better to sell stand-alone software products than on-going services.
Assuming that you are using a decentralized model. A centralized service is by nature an ongoing service.
3) Can you plausibly deny knowing what your end-users are up to?
Only in a decntralized or mostly decentralized network. If you try to intentionally make it hard to know what your users are doing, you're again opening yourself up to liability.
4) What are your substantial noninfringing uses?
This applies mainly to a centralized service. And in fact, you really need to have ONLY noninfringing uses if you are turning a profit from the network. (vicarious liability)
5) Disaggregate functions.
For example, use one service to locate content. Use another service to transfer content, preferably in an anonymous, secure fashion. Etc. This is what the ALPINE Network is designed to accomplish.
6) Don't make your money from the infringing activities of your users.
The section on vicarious infringement which this relates to, is rather troubling. If you are a centralized service making money from its popularity (i.e. Napster) you need to have very stringent controls on what your users are doing. Filename filtering is only the very first step, and proactive monitoring is required.
7) Be open source.
Nuff said!
8) Do not be a direct infringer: make and store no copies.
This includes caching content! The DMCA safe harbor rules will not apply to you unless you have gone through a number of hoops to do so. (After reading through the requirements, only ISP's can do this. Anything riding on top of an ISP is pretty much screwed.)
9) Do not build any "circumvention devices" into your product.
Like including a DeCSS filter for downloaded movies.
So, in short, I think a lot of the peer based network that have sprung into recent existance need to chew on this for a while, as many of them do not comply with what is need to be truly safe from legal attack.
Also, this is assuming that current laws remain unchanged. There is a very real possiblity that parts of the DMCA or copyright law will be modified in a more linient manner. Don't hold your breath
Several reasons,
1. The encoding algorithm for MP3's is patented. If an MP3 encoder is free ITS infringing.
2. An MP3 encoder is simply a recording device (Like a Betamax). There are considerable non-infringing uses for encoders and the Betamax Defense would almost certainly apply here.
3. Using an MP3 encoder doesn't require assistance from anyone once you have acquired the encoder (see #2). Thus noone is facilitating infringement.
4. A copyright only covers distribution. I can encode all my cd's to mp3 on my own computer (I have) and so long as I don't give them to anyone else (I don't) there's no direct infringement.
-- Rich
Free your mind and your Ass will follow -- George Clinton
What is the difference between these scenarios? I can find the software for creating mp3s for free.
I honestly don't think that P2P software is the problem. I think that the music industry in particular should NOT get all hot and bothered about the software for sharing (insert file type here) files or the files themselves, rather, target the applications that create the files. Does any of the software that can convert a file from CD to any format have to pay a license to the recording industry? If there is should it be more? Should software of this nature be more controlled as to who has access to it, should there be registration?
In conclusion, I think it is utterly infeasable to target P2P software, I say take care of the problem at the source, where it's created.
Of course you don't have to listen to me.
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No the game never ends when your whole world depends
crazy dynamite monkey
In the section of the article on "Lessons and Guidelines for P2P Developers" is a section on using open source to remain safe. Being open source will drastically reduce your chances of becoming a target of litigation: hard to prove financial benefit and impossible to control use of users since code can be modified. Plus, non-open source components that don't involve copyright infringement can be used for profitability of the p2p product. Very interesting.
Developers: We can use your help.
It's the problem. The right of ownership concept that the FSF uses as its main pillar is faulty and damaging as a concept when stretched beyond the limits of the GPL. The idea that you own a work that you had no hand in creating but have the full privileges of distribution as the original creator falls apart once the concept ventures beyond the realm of Free information.
Only the creator of a work can choose to make it Free. As Linus said, "everything else is just whining." It seems to be commonsense that distributing something that has not been cleared for free distribution by its owner would be met with legal challenges. Knowingly enabling this distribution by providing a venue for this is equally offensive as actually pirating the works.
The sense of entitlement that the FSF has engendered through its 'community ownership' and Free information concepts has confused people into thinking that anything they can lay their hands on should be theirs in the name of Free. This is not meant to be a slight against the FSF, but against those who have confused between speech and beer and 'it's just not yours'.
Dancin Santa
Bottom line is, if your product or service is used primarily for copyright infringement, and everyone knows it, you're screwed.
In the event you would like to read the text of any of the laws relating to copyright or the DMCA, take a look here. I teach a class on copyright law, particularly as it relates to new technology.
The real problem with P2P these days isn't that P2P services or programs are breaking the law, its that the record companies have the ability to force rewriting and reinterpretation of the law in their favor, regardless of what steps programmers and p2p providers take. Even the strongest good-faith legal defence is powerless against a system that is completely biased and corrupt.
RIAA and MPAA pushed through DMCA once and they could push through more stuff in the future. The courts have pushed through bogus definitions of contributory infringement, bogus definitions of "financial gain" and completely ignored the betamax and rio cases. They also completely ignored AHRA and fair use. Why? Because the law doesnt pay you to interpret it correctly. The RIAA pays you to interpret it correctly. Well, as correctly as serves their interests.
The solution is not "obey the law." We have seen that is not possible to obey the law if you are a potential threat to the record companies. The law is twisted to make you guilty and remove you as a threat. The solution is either to
-ignore the law: use all the technological measures available to you to hide from the RIAA and from any enforcement agencies (goverment or otherwise) that they employ. Deal only with trusted pirate entities and be careful about what you do.
-change the law: this will be difficult. One way to change the law is to give congress more money than RIAA and MPAA do. This is not likely to be a trivial matter to accomplish. Another way is to start voting congressmen out of office who voted for things like DMCA. However, most of the voting public is completely ignorant of technical issues.
-have a bloody revolution: record company tyranny isnt really a good enough reason to break out the guns. Give it time. Just hope that you still have the right to own guns by that time.
File sharing is here to stay, including sharing music, movies, etc. Those that create the systems will be under constant legal attack until either the law changes or a legally defensible system is created.
This article draws a huge grey line between legal and illegal systems, and Naspter is clearly on the illegal side, and in a lot of trouble. If you disagree, read the article, and then come back and argue.
There is room on the legal side, however. The best news is, the most legal software would be anarchist open-source free software! Microsoft will never make it!
This may be the dividing line between Linux and Microsoft - Microsoft's product would be popular, legal, but limited, while the Linux equvalent would be geeky, illegal but unenforcable, and unlimited. Perhaps even a legal, open-source version could be created, to meet the criteria halfway.
Good news and bad news. Good news, more people will try Linux to satisfy their Napster desires. Bad news, Linux will get a further reputation as a haven for pirates and hackers (hackers in the media sense).
We all have a good idea of what the Microsoft solution will be: Encryption and copy protection enforced at the operating system level, designed to fit the desires of the RIAA. We should try to beat them to the punch, creating a legal system that allows some freedoms, rather than the anarchist systems proposed elsewhere.