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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?
"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.
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.