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The Law and P2P
Anonymous Coward writes "Here's some interesting legal commentary on the continuing saga of copyright enforcement and Apple's attempt at a constructive approach."
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Available on Kazaa soon
Je t'aime Stéphanie
I was under the impression that iTunes was Client/Server, not P2P... How does it possibly relate to Napster/Kazaa/Gnutella, etc.
They are more akin to Amazon.com no?
I am become Troll, destroyer of threads
I'd read that article, but isn't it copyrighted by the person who wrote it?
....
I wouldn't want to break the law or anything
Apparently your magic-8-ball has never had the pleasure to use it personally.
My magic-8-ball has been formerly introduced to the product. When I asked it's opinion, I recieved "Outlook not good".
Try exposing your 8-ball, and rechecking it's results. If the message does not change, you may have a defective 8-ball, and should call the manufacturer for a replacement.
Sorry, no links.
Why Grokster and Morpheus Won, Why Napster Lost, and What the Future of Peer-to-Peer File Sharing Looks Like Now
By CHRIS SPRIGMAN
----
Thursday, May. 08, 2003
On April 25, in M-G-M v. Grokster, U.S. District Judge Stephen Wilson dismissed a copyright infringement lawsuit brought by a group of movie studios and record companies against Grokster and Morpheus. (Grokster and Morpheus are peer-to-peer services that enable users to share copyrighted music, movies, and other content over the Internet without paying a dime to the copyright owners.)
Many observers were surprised. They had assumed that Grokster and Morpheus would - like Napster in A&M Records v. Napster - be shut down for facilitating individual file sharers' copyright infringement. But Judge Wilson, after carefully examining the underlying technology, found that though users' infringement was occurring, Grokster and Morpheus were not contributing to or authorizing it. Thus, they could not be held liable.
The decision is obviously bad news for Hollywood studios and record companies. If it is upheld on appeal, they will continue to face wide-scale infringement of their copyrights.
If the decision is indeed upheld on appeal, will that be good news for consumers? That is a more complicated question. The answer depends heavily on Hollywood's reaction. Will it continue its battle on other fronts - focusing perhaps not on the services, but on their users? Or will it, instead, launch new strategies to take advantage of the powerful business opportunities that peer-to-peer might provide?
Comparing and Contrasting Grokster, Morpheus, and Napster
To see what is likely to occur in the future, it's helpful first to take a closer look at the differences between Grokster, Morpheus, and Napster.
First, Grokster. It offers for download a branded version of software owned by Sharman Networks, a company incorporated in Vanuatu - a remote Pacific island chain that markets itself as protecting corporate secrecy.
When a user boots the software, his computer is directed to sign on to a "root supernode" (a server owned by Sharman), which then directs the user to a "local supernode." The "local supernode" is some user's computer, which has been temporarily designated to route file-sharing requests among a large number of other users. (A particular user's computer may function as a local supernode one day but not the next; the process is largely invisible to the user).
Suppose a Grokster user requests a certain file - it could be a song, a movie clip, a video game, or an e-book. His search request is relayed among a large number of local supernodes and on to individual users. Once the requested file is found, it is transferred directly between the users.
Now let's look at Morpheus. Its software is based on the Gnutella peer-to-peer platform, built from "open source" code. Morpheus users connect to the Gnutella network by contacting another user who is already connected. (This initial connection is usually made by linking to a computer on the network that maintains a constantly changing list of IP addresses for certain currently active nodes.)
The Gnutella network is a "pure" peer-to-peer network - composed of users running Gnutella-compatible software such as LimeWire, BearShare and Shareaza. It does not use supernodes. Instead, user search requests are passed from user to user in the network until the requested file is found. The file is then transferred directly between the two users.
So what's the difference between Grokster and Morpheus, on one hand, and Napster, on the other? It is this: when Grokster and Morpheus users search for and receive digital files, they do so without information being relayed to or by any computer owned or controlled by Grokster or Morpheus. Thus, as the district court noted, if Grokster or Morpheus shut down, their users could continue to share files with little or no disruption.
In contrast, Napster users relayed se
-- Bill "Houdini" Weiss
This is a great idea that would be embraced by the public... until someone asked:
Why would i pay to download music on one service, that i can download for free on another?
0110100100100000011000010110110100100000011000100
The distributedness was really the clencher though. Basically, the opinion states that Morpheus and Grokster had no ability to prevent copyrighted files from being shared due to the nature of the network. This, of course, requires that there were significant other uses than copyright infringement.
-Alison
It is quite likely that at some point the music industry will end up making more money out of Internet distribution of their music than they do out of selling CDs. It is also entirely likely that they will continue fighting against P2P tooth and nail until they have exhausted all possible options.
The problem is that right now the lawyers are making the decisions. If you are a hammer, everything looks like a nail, and if you are a laywer - you often assume that all problems can be solved with a law suit. This mentality will likely continue to persist until it is absolutely obvious, even to the lawyers, that it can't work.
What does this mean? Well, for one it means that we should fully expect legal attacks against users of P2P networks to continue. This will simply serve to encourage greater use of Freenet and other future systems which protect user anonymity (Freenet still needs work to make it well suited to this task - but if there is a demand, someone will create a suitable third-party app which uses Freenet as a back end).
After Freenet or its successors have finally demonstrated the futility of trying to use the law to halt progress in communications technology - the music industry may eventually accept that it needs to adapt, but don't hold your breath for it to happen any time soon.
Sell at $1 a song until business gets sluggish, then surprise users with a $20 a month, download-all-the-songs-you-want subsription service. Everyone goes gah-gah because they have been paying $100-a-binge for songs and signs up for the service. Mac users revel in the fantastic deal they're getting from Jobs.
RIAA now has the business model it wants, though Apple gets a small cut, in that instead of people paying $17 a few times a year for a cd, they now have them automatically paying $240 a year. Cell-phone pricing syndrome has everyone blissfully unaware that they are paying way more than they ever wanted to in the first place and the RIAA uses the extra dough to have public executions of P2P software engineers.
While the Napster decision may have rested on that (didn't read the decision), that wouldn't qualify as a difference between Napster and Grokster/Morpheus. Because Napster was client-server as opposed to true P2P, Napster as a company was found to know about and also to be able to prevent copyright infringement. Since they could've done something, and since shutting them down stopped the problem, they were rightly (IMHO) held liable.
Grokster/Morpheus, OTOH, because they are pure P2P, are more like copy machines. They have substantial non-infringing uses and there is no way for the manufacturer to know whether a user is copying an item in violation of a copyright.
If, for example, record companies included some kind of encryption in their files that would prevent them from being played without some kind of key, and if Grokster/Morpheus included in their software some ability to strip out that encryption, then Grokster/Morpheus would be violating the DMCA, and might also be held liable for copyright infringement.
John
"The plural of anecdote is not data."
Read the article: "Apple has announced that it is adding additional music to its library, and will introduce a version of its service for Windows machines by year-end."
Of course, resorting to such extreme measures would almost certainly inflame public opinion. And, as George Washington University Law School Professor Orin Kerr has argued, it might even land a few record company executives in jail, absent Congressional immunity for such tactics, which (believe it or not) has been proposed."
I personally would love to see this happen, if they damage my computer, I want the bastards in jail. If somebody came into a music store and stole a bunch of cd's, they can't just break into their house and smash them - along with anything else they might believe is stolen, they'd have to notify the authorities. I'm not trying to defend copyright infringement here, but two wrongs do not make a right.
Napster was ruled against because it isn't really P2P; requests went through a central server.
Grokster and Morpheus were not ruled against because they are really P2P; if the backend companies shut down the users wouldn't be affected.
Previous attempts at online music services failed because they were too expensive and too restrictive.
Apple's online music service will not fail because it is not expensive and not restrictive.
The media industries should follow Apple's lead.
IMO, this article wasn't that interesting, nor that informative. It was yet another summation of the story thus far. At least it was a quick read.
obviously no deficiencies vs. no obvious deficiencies
Each was a part of the ruling. In the Grokster/Morpheus (G/M for brevity) ruling it was found that the programs from G/M did have significant non-infringing uses, but this in itself does not free them from the Contributory/Vicarious infringment charge by itself. They also had to show that they did not have a right and responsibility to police the network. This is where the distributed nature of the network came into play. G/M have really no way to watch over what is traded on the network, they do not, in fact, control it really. They have no way to kick off a user who is abusing the network. As such, the judge in the case found that they did not have a right and responsibility to police the network. It was the combination of the two things that made for the not-guilty ruling. If either test had failed, then G/M would have been shut down, just like Napster.
Necessity is the mother of invention.
Laziness is the father.
I hope that Apple sees the chance to pull in some extra revenue, and ports this to PC. I doubt anyone would switch to a Mac just because of iTunes, but it'd give them an extra stream of cash if they let PC users share in the goodness.
From the Article:
Meanwhile, Apple has announced that it is adding additional music to its library, and will introduce a version of its service for Windows machines by year-end.
There you go...
While $10 is still higher than I'd spend for most craptacular CDs, it is a reasonable fee. I'd love to be able to just download the new Metallica CD as soon as it comes out, legitimately.
I'll just be glad to be able to download just the couple of songs that I want from a CD, and not have to pay for the filler crap. This is one of the reasons I don't buy many CD's, there is usually 1 or 2 songs I want on the CD, and the rest is mediocre at best. I often wait for a "Greatest Hits" type CD from a band before I'll buy one of their CD's, and even then I try to get it cheap/used. Call me a skinflint if you want, but I don't think of $20 as a small amount of money that I can just throw around, I want to get a good value for it. And $15-$20 for a new CD with a handful of songs that I like is just not a good value. Now $1 for a song I do like, now that's a pretty good deal.
Necessity is the mother of invention.
Laziness is the father.
Folks like the recording industry are mostly out for short-term profits (if a given executive can make his millions and get out, what does he care about the future?). However, they have probably finally realized that slowly pulling the rug out from under an unengaged public will make their long term goals easier to achieve than trying an all-at-once lockdown.
Actually what's going to happen is that Napster is going to reform, retool and re-appear on the scene letting users download any and all music for $0.10 per song with no DRM restrictions using lossless open source audio compression techniques. The RIAA will take them to court, be defeated, and all of it's members will be jailed for being jerks to music lovers.
Naturally I have no evidence to back up these wild claims.
Which is exactly the same amount of evidence you have for claiming that Apple and the RIAA are going to pull a PressPlay on its customers.
Here's a concept: Maybe they're the first people to do this thing correctly. Maybe in a year's time everyone will be doing it this way. Maybe all non-Mac users will look back on the fact that Apple led the way with this model and laugh nervously and rapidly change the subject. Kind of like they do with most of the other innovative firsts to come out of Cupertino.
You like your Macintosh better than me, don't you Dave? Dave? Can you hear me Dave?
RIAA now has the business model it wants, though Apple gets a small cut, in that instead of people paying $17 a few times a year for a cd, they now have them automatically paying $240 a year. Cell-phone pricing syndrome has everyone blissfully unaware that they are paying way more than they ever wanted to in the first place and the RIAA uses the extra dough to have public executions of P2P software engineers.
This is not automatically true. I remeber when AOL did this sort of switch (yes, I was at one time an AOL'er, I'm sorry, I have learned better now). When I first started with AOL they gave you so many hours per month, and then charged you for any extra hours you used. And with Neverwinter Nights(the original) still running on AOL, I burned out those hours pretty quick, but since I didn't have the money to pay for extra hours, I forced myself to not run over. Then they introduced the $20 all you want method, and people went nuts (me included). It was hell trying to connect to a server, all of the modems in my area were clogged constantly. But when I did connect, oh baby. Since I was in high school at the time, and not working, I would play NWN all night and day during the summer and weekends. I was on constantly, and so was everyone else in my area. It stayed this way for as long as I stayed on AOL. Then, sadly, they killed NWN. By that time I had pretty much seen that I didn't want to be on AOL anymore and cancled my subscription shortly thereafter (I had a job by this point, and was paying for the subscription to feed my addiction).
Moral of the story, a flat rate is not always going to be overcharging. If there is enough value in the service people may well get their money's worth out of it. But as the customer, you have to decide which type of pricing will be right for you. Will it be cheaper to pay per song, or flat rate per month (assuming that gets offered). Me, I'll try and stick with the per song rate, my roomate on the other hand would be a good candidate for the flat rate idea. We'll just have to see where this goes.
Necessity is the mother of invention.
Laziness is the father.
Yeah, they still make CDs. Too bad they stopped making metal.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
in a couple of ways, but one specifically - the author states that Gnutella does not use supernodes. in fact Ultrapeers (the gnutella term for supernodes) have been on gnutella for quite some time. there weren't as effective as hoped, but that was because of several bad iterations of implementations. things are getting better - check out any respectable (BearShare, LimeWire) gnutella servent and you'll see.
smd4985
"Let me explain to you. In the back of their minds, most Slashdot readers ("Slashbots") know that they simply don't want to pay for anything which they can get illegally for free."
Then explain to me how Apple sold 1 million songs? Explain to me why a lot of people would pay $300-$400 for an iPod or similar piece of hardware when they don't want to spend $15 for CD?
You assume it's about price tag and it never occurs to you that what's really wanted here is to be able to make music more interesting and entertaining. MP3s have brought on an interesting revolution in music by making it more portable and more customizable to the listener. (Playlists, etc.) Meanwhile, in an effort to combat this on every level (including the legal uses of MP3s), the RIAA's gunning for sweeping changes to destroy the rights of individuals, instead of just doing the right thing and filling the demand people have. Apple's site proves that people are happy to pay for music as long as the service is good and prices are fair.
So yeah, nice troll. Congrats on getting your ill-thought comments modded up. Never mind that people want their music to be more interesting, no no, it's all about making it free. That's why MP3 players are making so much money when people could burn their MP3s to a music CD.
"Derp de derp."
The RIAA might just let the cops do it for them.
Be afraid, be very afraid.
I'd be a Libertarian, if they weren't all a bunch of tax-dodging professional whiners. - Berke Breathed
I wonder what the pricing breakdown per song for iTunes is. What percentages are going to the Record Industry and the Artists? Since there is no cost of the physical "CD", besides advertising, promotions, etc.
I don't think that this is necessarily a solution for the artists, but a solution for the consumers. The RIAA always talkes about how it's artists are loosing money because of P2P. I hope whatever "tax" that Apple has to pay the record industry to pay for the copyright use of these songs, that a greater percentage goes to the artist.
Not unaware, they are just too stupid to care. Not everyone (although it sure does frickin seem like it) has a cellphone. I used to own a cell-phone when you could pay for the minutes you used. I paid $11 a month for service, and got 0 free minutes. I loved it! Why should I pay for something I don't use? I am convinced that the American public is just stupid. "Hey, I've got 1000 minutes, I think I'll call my buddy and blather on about absolutely nothing." People are always asking for my cell number, and they look at me like I have a tree growing out of my forehead when I tell them I don't have one. I am no luddite, I just refuse to be convinced that I need something just because everyone else has it and it is the cool thing to have. I think that about 90% of people don't need a cellphone, or at least only need to use it 1% of the time they currently do. Same goes for SUVs. The herd mentality is just overwhelming, and is really sad. Maybe that is why I don't want Linux to succeed on the Desktop, because the idiot sheep in this country will suck all life out of it.
My beliefs do not require that you agree with them.
I'm not sure it's fair to assert anecdotally, absent evidence, that the same persons most vocal about e.g. GPL compliance also advocating copyright infringement via Kazaa or otherwise. Furthermore, I see *no* inconsistency between saying people should respect copyright law and that copyright laws should be changed. A charge of hypocrisy really can't be levelled at a group of users where each user may (and often does) have differing views on any two given issues.
</SOAPBOX>
-Isaac
I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.
The customer was not being served by the music industry. Apple's recent Music Store opening offers ample evidence of that. It certainly has shortcomings but the overwhelmingly positive response to it clearly demonstrates that people will pay a reasonable amount to download a quality recording.
Wansu, th' chinese sailor
...regarding eMusic. In the article, he implies that eMusic's subscription model requires you to continue paying the monthly fee, otherwise your previously downloaded songs stop working.
This is not true. eMusic's files are straight MP3s, with no DRM encumbrances. They do require you to sign up for a minimum 1-year commitment, but after that year you are free to cancel, and all the files you downloaded will continue to work just fine.
Neither company operates "supernodes", which facilitate entry into the P2P network. Grokster does rely on Sharman to operate a "supernode" for all clients attaching to the KaZaa network. Once connected, the clients do not go through this central machine. According to the logic of the ruling, operating this server would be equal to contributory infringement. It was specifically noted that Grokster did at one time operate a server. It can be deduced that Sharman will be found liable using the same logic, and may be forced to shut their server down (if it is located in the US anyway). This will effectively "decapitate" the KaZaa P2P network, as no new clients will be able to be connected.
Morpheus (and all other Gnutella-based systems) will not have this liability, and if this ruling is not overturned on appeal, will be basically immune from these types of lawsuits. Those that rely on a central server for anything can and will be held accountable based on this ruling.
As for the P2P vs. Apple/Other services, it's a basic principle - Get rid of the "free" but cumbersome and unreliable option (via lawsuits) while opening up a cheap and quality service on the other side. Now if the RIAA did this on their own, they might be raking in the dough... good luck ever changing thugs like them without a shotgun and backup though.
I see so many articles about this but even on a law site the OBVIOUS point is still missed. These are TOOLS. Tools do not break the law, people break the law. If there is even one small legitimate use to a certain piece of software, no one should have any argument against its use even if millions are breaking the law with it. HTTP and FTP can and ARE used to host files that violate copyright. So can Windows file and print sharing, my goodness, you can even encode hidden files inside of picture files. Are all of these going to be outlawed by the government and the RIAA and MPAA? Get a grip. Go after the ones breaking the law not the tools people are using to do it.
Moral rant *****
ALSO just because you break the law doesn't mean your not on the moral high ground.
Mull over the following fact:
I am definitely to the point of refusing to buy CD's and movies because I am treated like a criminal.
Yes... I use it. I just downloaded all of Fallen by Evanescence. I liked it so much that I went to their website and tried to find ANY method to pay them directly because I REFUSE to give any money to the RIAA. There is no way to do it there. I know there sites out there that are trying to do this but there should be the option to pay the artists directly because I want to KNOW where my money is going.
I'm not saying I'm right and that I'm not hypocritical by doing this and finding excuses not to pay, but I'm fed up with it. There has to be another way.
Digital is, by definition, imperfect. Analog is the way to go.
When a user boots the software, his computer is directed to sign on to a "root supernode" (a server owned by Sharman), which then directs the user to a "local supernode."
I've never used KaZaA or Grokster, but if the above is true, how is it that "when Grokster and Morpheus users search for and receive digital files, they do so without information being relayed to or by any computer owned or controlled by Grokster or Morpheus." is also true? If Sharman Networks were to shut down their servers, how could Grokster/KaZaA users find each other?
Or is the article saying that the company behind Grokster isn't responsible, Sharman Networks is -- but they are way over in some island and hard for the RIAA and MPAA to find?
If I were the RIAA, I would do what I could to shut down Sharman Networks. Have they tried that yet?
And how does Gnutella work? Can someone explain how a network can be "pure" peer-to-peer and anonymous at the same time (how would you connect to a the network)? The article explains it as: "This initial connection is usually made by linking to a computer on the network that maintains a constantly changing list of IP addresses for certain currently active nodes.". How do you find that computer with the list? Isn't that a central server, the maintainers of which should be targets for the RIAA?
"And there be unix which have made themselves unix for the kingdom of heaven's sake." - Matt. 19:12
And it's a fine line between fair use and illegality, and as we all know, blocking the illegal behavior also prevents fair use. And fair use is legal; or do you think it shouldn't be?
If he explores all forms and substances Straight homeward to their symbol-essences; He shall not die.
The Federal Code has several sections on Fair Use.
The first section on individual Fair Use may not be all that relevant to P2P, but the second section seems to go straight to the heart of the matter.
The second section is about Libraries and Archives. It's the Archives part that seems particularly relevant to P2P. That's what P2P is, isn't it --a distributed archive.
Moreover, the law itself specifies what it means by a library by saying that a library is a publicly accessible non-commercial media lending facility.
Libraries and Archives are allowed not one, not two, but three. Count them, three big copies of any copyrighted work. And what is the purpose of these three copies? Specifically, the purpose of these copies is to lend to other publicly accessible non-commercial archives.
So, let's compare this to P2P. A hypothetical user has two copies of a copyrighted work on CD backups and another on the hard drive. That's three copies. Hmm, so far I don't see any infringement. But what's the intent. Let's see here. It appears our hypothetical user is going to lend a copy to another publicly accessible non-commercial archive.
According to US Federal law this seems to be completely legal activity.
1) Move files between machines
2) Play files forever if you like
3) (most important) make a CD.
Really #3 is the only reason why I consider fair use to be decent for Apple files. I could always re-encode them if I liked, or store them in a non-lossy format that would keep the quality frozen forever just as it is now - which is good enough for me.
In practice I don't really do that though, because I do use iTunes for music and don't need to convert the files. If I had a dedicated music server for my home I'd probably store all my CD's lossless anyway.
To summarize, most people consider what Apple doing as useful because there is a way out of that file format. Just like an airplane emergency exit, you don't use them every day but they are there and you can use them.
What I find intriguing are how iPods are able to play these files... couldn't you copy files from one iPod to any other when mounting them as FW drives? Does the new iPod software have some idea of who the user is when the user synchs?
"There is more worth loving than we have strength to love." - Brian Jay Stanley