Slashdot Mirror
Brazilian Court Bans P2P Software
Earlier this year, at the behest of an anti-piracy group consisting of the usual suspects from the recording industry, a Brazilian court ruled that a company named Cadare Information Technology must implement a filter on the P2P software they distributed on their website to weed out copyrighted content. Cadare was unable comply with the order because they didn't develop the software; they merely offered it for download. The case went back to court, and a Brazilian judge has now decided to ban distribution of the software because it can be used to assist copyright infringement. "He went on to suggest that any website offering the software alongside advertising (i.e, trying to profit from offering it) would be committing a crime, punishable by between two and four years in jail."
to start killing the lawyers yet?
Guess he'll have to ban the Internet...
"...because it can be used to assist copyright infringement..."
Let's ban all computers while we're at it too "because it can be used to assist copyright infringement". And without a computer I won't be able to run the software. Oh and we need to collect money everytime a person sings a song in their head. Because the record label is not being paid for the content since you heard it on the radio and just kept replaying it in your head. We'll put chips in your heads to monitor what songs you've played in your head every month and send you a bill on itunes.
"I'm curious if this will change if and when judges understand the underlying technology better."
Statements like this are like Chicken Soup for the Pirate's Soul. We convince ourselves that it's all because the people in charge just don't understand the technology. I completely understand; this is a much more acceptable situation than the judges understanding the technology just fine.
There's a huge disconnect here. When Napster, Kazaa, Morpheus, and most recently The Pirate Bay went down, file-sharing fans quickly pointed out that it was obviously because the legal professionals don't know what they were doing. "Just like Google!" they shouted. "A web browser is P2P! Let's ban guns, too!".
The problem is this: I've read all of the rulings (I'm kind of a nerd like that) and it's generally clear that the lawyers and the judges understand the technology just fine. They might not be able to code a P2P client themselves or even mount a Linux volume, but reading the documents makes it very clear that they know exactly how the technology works and how it's being used.
You can use Occam's Razor here: it's a hard scenario to swallow that there simply aren't enough defense lawyers who understand P2P technology. If the law really worked like so many Slashdotters think it does -- a legal world in which intent and usage aren't relevant -- then wouldn't all of these judgments be thrown out once some legal folks as smart as you took up the cases and clearly showed that it was all a matter of the judge not understanding the technology? A simple matter of a smart person explaining to the appeal court that a pirate torrent site is just like Google, a P2P client is just like a web browser?
The ironic thing here is that if you ask any lawyer with a background in copyright law, they'll be happy to explain to you exactly why TPB, etc. aren't exactly like Google and why Kazaa and Morpheus weren't just like a web browser. It's actually even pretty easy to understand by folks who don't have a JD. Yet we collective Slashdotters just continue to stamp our metaphorical feet and pine for the day when judges just understand. "Substantial non-infringing uses," "contributory infringement," "vicarious infringement" and even basic principles like mens rea whoosh past us like a late summer breeze, while we close our eyes and dream of a day when legal professionals will finally be as smart as we are.
Sitting in my day care, the art is decopainted.
It's not quite pointless. The purpose seems to be the creation of a "sacred" status for copyright law, something that would cause anyone to think twice about creating anything that might have some indirect role in copyright infringement. In other words it's designed to intimidate, which explains why no allowance seems to have been made for the fact that peer-to-peer software can also have legitimate uses, like the distribution of Linux ISOs.
From the summary:
This is like banning hammers because some murderers have used them to bludgeon people to death, or banning cars because a few criminals have used them as getaway vehicles. It also ignores the infeasibility of successfully filtering all copyrighted content in all digital forms with no false positives or false negatives. Either those judges are morons who have no idea about the glaring flaws that are easily pointed out, or the absurdity of this ruling is a deliberate component of the Machiavellian "make an example of them" style of authoritarian thinking that seems to be universally exhibited by pro-copyright interests. In fact, the same could be said of the DMCA in the USA and the legislators who supported it.
It is a miracle that curiosity survives formal education. - Einstein
Should the judge be castrated, because his penis can be used for rape?
It has nothing to do with technical differences and everything to do with how the tools are used. Yes, P2P has legitimate uses and is used by many for legitimate trading of files. However, the dominant use is illegitimate trading of files.
The real "Libtards" are the Libertarians!
You're setting up a false premise here -- nobody believes that one can't use Google to infringe. We're all smart people here and we owe it to ourselves to not fall into these sort of silly traps.
If you're genuinely curious why "just like Google" doesn't work, Google on "substantial non-infringing uses." It's a fundamental legal test for contributory copyright infringement.
Turning it around, if you're wondering if Google and similar facilities are in danger of being held liable for the actions of their users, this is an important one to understand:
http://en.wikipedia.org/wiki/Mens_rea
Another critical thing to understand is that safe harbors (the DMCA being the most relevant) are, to mangle the metaphor, a two-way street. Yeah, they'll protect you, but only if you make use of them. For example, Google and many other sites honor DMCA takedown requests. If you're running a P2P site and you know that filtering out pirated material would put you out of business, you don't have the luxury of ignoring takedown requests simply because honoring them would affect your site's viability -- and excuses like "I'm too busy" or "I don't have the manpower to handle all those requests" don't hold any weight with the court. To take advantage of the DMCA safe harbor that Google and so many others enjoy, you must take active steps to make use of it.
That appears to be similar to what happened in the case described in the article.
HTH.
Sitting in my day care, the art is decopainted.
I'm brazilian and I've read Internet Legal's press release about this (which is a bit like EFF), and what the judge actually prohibits is showing ads FOR THE SOFTWARE. The website in question (www.iplay.com.br) displayed ads which, according to the judge, implied that the software was meant for illegal file sharing.
Also, what happened here is that a second judge REVERSED the decision made by the first one, that said P2P applications are like knifes: you can use it for good OR evil, and there's nothing the maker can do about it. The second judge compared the P2P software to an establishment that sells both drugs (illegal) and soda pop (legal): even if legal products are available, the correct thing to do is to shut everything down.
in pt-br: http://www.internetlegal.com.br/2009/09/tjpr-decide-que-e-ilicito-o-uso-de-software-p2p-para-baixar-musicas-pela-internet/
in english (courtesy of google): http://translate.google.com.br/translate?u=http%3A%2F%2Fwww.internetlegal.com.br%2F2009%2F09%2Ftjpr-decide-que-e-ilicito-o-uso-de-software-p2p-para-baixar-musicas-pela-internet%2F&sl=pt&tl=en&hl=pt-BR&ie=UTF-8
One of the dominate uses of the internet is viewing porn (not going into any potential copyright on said porn). Does that mean that the internet should be banned under existing obscenity laws?
"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." ~Thomas Jefferson
"I've yet to see one which says, "Well, this can be used for infringement, but technologically, it's no different from other programs which are not used for infringement"."
But how would that be relevant -- and more to the point, how would it help the case?
Pirate tracker sites share much of the same technology as, say, legaltorrents.com. The latter gets a pass while the pirate sites go down because of things unrelated to technology: the actions and intent of the people running them. This is one of those fundamental legal things, unrelated to the level of technical experience of the person making the judgement.
"Certainly that's been what's been behind the decision to ban "peer-to-peer software" on a lot of private networks. And yet, this same logic isn't applied to other technologies which have also been used for piracy like ftp, tftp, newsgroups or http."
Because it's irrelevant. It's about actions and intent. And we should acknowledge the people who have been busted for serving up pirated files via http and ftp.
"The judges aren't idiots. They have a basic understand of what's going on and how these programs work, but they don't have a deep understanding of how the internet actual works. If they did, at least some of the decisions would have to be written quite differently."
Well, to be fair, your belief is a common one among Slashdotters: the problem is not that we don't sufficiently understand copyright law, but that nobody in authority -- not one person -- sufficiently understands the technology. If they did, then they'd throw out all of this "actions" and "intent" and "safe harbor" and "substantial non-infringing uses" mumbo jumbo and simply understand that since a warez tracker or Kazaa trades packets in much the same way as other technologies, then the operators can't be held liable.
Sitting in my day care, the art is decopainted.
Invent an efficient file transfer mechanism... one that can beat the efficiency of anything invented so far, and if it ever happens to catch on with any legitimate community, I can guarantee that it will also be appropriated by people who do not give regard for copyright, and in short order its predominant use would be for illegitimate file sharing.
File under 'M' for 'Manic ranting'