Term Paper: Copyright Laws vs. Peer-To-Peer File

Pages: 20 (5802 words)  ·  Bibliography Sources: 1+  ·  Level: College Senior  ·  Topic: Law - Legal Briefs  ·  Buy This Paper

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[. . .] Peer to Peer file sharing

Following the ruling that determined it was okay to record television movies and shows on blank VHS tapes for private use the explosion of alternatives arrived. About the time the Sony trial was winding down the Internet was heating up. The Internet was something that allowed communication between people across the globe and with many at once or one on one. It was and has been one of the most promising futuristic technological inventions in our history. The internet and dot com companies began springing up all over the world and with that came the SONY Betamax clones of sorts. Napster is probably the most well-known peer-to-peer file sharing example that is available at the present time. Peer to peer file sharing seems to get around the issue of copyright laws because of its lack of a central gathering spot that it can call home.

Peer to peer means there's no central server to serve the injunction to, the lawyers don't have anybody or anything to rout. In the post-Napster world the courts aren't the ones writing the code. Peer to peer means people to people, stringing PC's together with out a center. "

The central copyright law concepts that P2P developers must grapple with are the doctrines of contributory and vicarious copyright infringement. These are so-called "indirect" or "secondary" theories of copyright liability that can hold a software maker or system developer liable for the infringing activities of end-users. In a widely-used public peer-to-peer file-sharing environment, it is a virtual certainty that at least some end-users will engage in infringing activity. By invoking contributory and vicarious copyright infringement, copyright owners have been seeking to hold P2P tool-makers (like Napster and Scour) responsible for these infringing end-user activities. Consequently, an uding of these two copyright doctrines can be crucial if P2P developers wish to limit their vulnerability to copyright liability. Contributory infringement is similar to "aiding and abetting" liability: one who knowingly contributes to another's infringement can be held accountable. In order to prove a contributory infringement claim, a copyright owner must establish the following elements: (1) some act of direct infringement (by end-users, for example); (2) that the defendant knew or should have known of the defendant of the direct infringement; and (3) that the defendant materially contributed to the direct infringement. "

The end run attempt around the copyright infringement laws by Peer-to-Peer file sharing has been ruled on in the nation's courts in the Napster case. The law believes that a person is violating copyright infringement laws if that person has control over the users of the file system and stands to directly benefit financially from the system and the control. And the third criteria for infringement violation are that the defendant has the ability or the right to control the person who was actually doing the infringing.

The recent decision by the Ninth Circuit in the Napster case is the first case involving the application of contributory and vicarious liability to a peer-to-peer file sharing system. In the course of ruling against Napster, the court interpreted both contributory and vicarious infringement in an expansive way. With respect to contributory infringement, the court ruled that, after receiving notice from a copyright owner that a work is being shared on its system without authorization, Napster has a duty to take reasonable steps (including implementing technical changes to its system) to prevent further distribution of the work. This ruling creates the potential that once a P2P developer receives a "cease and desist" letter from a copyright owner, he or she must "do something" (including making changes to the system architecture) to stop the infringement, or else face liability. "

The court ruled that claiming ignorance of what users were doing and who was infringing was not good enough. According to the courts that herd the case if the owners had the ability to police and chose not to do so they were actually acting against the rules. They could police the activity and did not which made them liable. One of the things that was attempted initially is that artists or their representatives sent letters to Napster asking them to remove the ability to download their particular works from their system. Napster publicized this request and publicly explained that it would be cost prohibitive and time impossible to comply with this type of request as it meant stopping the downloading of thousands of works through the peer-to-peer file sharing system that it was founded in. The refusal to police when a person has the ability to police the activities was in violation of copyright rule and responsibility as well.

If one wanted to begin a peer-to-peer file sharing company to avoid the copyright rules and laws the Napster case actually laid the blueprints for the future companies to use in their effort. There are several things that can be undertaken by the companies that may force the copyright rules to turn a blind eye to the goings on of the company.

Some of the options that the peer-to-peer file sharing developer has to choose from include:

Total control or total anarchy.

Better to sell stand-alone software products than on-going services.

Can you plausibly deny knowing what your end-users are up to?

What are your substantial noninfringing uses?

Disaggregate functions.

Don't make your money from the infringing activities of your users.

Be open source.

Do not be a direct infringer: make and store no copies.

Do not build any "circumvention devices" into your product.

Don't use someone else's trademark in your name. "

Napster Case

The elements of the case were simple. The music industry insisted that Napster was providing a way for the customer to get around copyright laws by providing a way for them to download an entire CD instead of going ot the store and paying for it. Napster replied that it had no control over what its participants were doing because it did not provide a holding area, tank or shelf for thousands of recorded songs. It merely provided a link between its users to share compatible files and those files happened to be personally downloaded music that was encoded for MP3.

The problem that the music industry has with Napster is that it is a big, automated way to copy copyrighted material. It is a fact that thousands of people are making thousands of copies of copyrighted songs, and neither the music industry nor the artists get any money in return for those copies."

Songs that you find on mp3.com (and sites like it) are:

In the public domain

Uploaded by artists who are trying to get exposure. These artists have usually not yet cut a deal and they are not losing royalties by having their music downloaded through these means. The exposure of allowing millions to access their music could actually boost their careers if the right people were to hear it or begin to as radio stations why they are not playing it.

Released by record companies trying to build interest in a CD. Record companies could easily use Napster and others like Napster to promote the artists that they are representing. It is a free means of promotion and it takes little more than someone uploading the new song and letting the public have at it through the peer-to-peer file sharing system. If they like the individual song then its possible they will go out and buy the entire CD. Therefore the use of Napster through a recording company could be a positive and financially profitable venture for the artist.

Paid for by you for the right to download, and the site pays the artist and/or record company royalties. When the suit was first filed this was an often discussed possibility. The owners did not want to charge for services and the public had gotten so used to free access that the idea of having to start paying was not a popular one.

An item that is adding to the controversy is the Audio Recording Act. This law provides the buyer of a CD or cassette with the right to not only make a copy for their own personal use, but also to make copies for friends as long as the original owner is not selling the copies or receiving any other type of compensation. Napster fans say that what they are doing is perfectly legal since the law does not specify who those friends must be or how many of them you can give a copy to.

It worked for awhile and then the industry got together and filed a suit against Napster. Napster fought to win but lost and the case made international history and the first such case to be tried since the advent of the internet. The court ruled that Napster did… [END OF PREVIEW]

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