Friday, December 17, 2004

LAW - P2P Spotlight

Seems that Peer to Peer file sharing (P2P) is "in" again. First, RIAA and MPAA got stymied when the Senate Judiciary Committee shelved the INDUCE Act. The bill, S. 2560, proposed amending the United States Copyright Act to create a new type of copyright infringement liability: inducement. Specifically, the bill provides that "whoever intentionally induces any [copyright] violation shall be liable as an infringer."

Wow.

Naturally, Senators Hatch and Leahy, champions of megacorporate media that they are, provided a definition of "intentionally induce," which is such a model of clarity. To "intentionally induce" copyright infringement is, according to the bill,
aiding, abetting, inducing, or procuring, copyright infringement. Furthermore, intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.

Things have gotten bad in our public school system these days, but didn't they teach grammar back when these guys were in grade school?

I suppose one way to rake in massive amounts of money in damages is to create a cause of action that's so hard to define that it means whatever the entertainment industry says it means at the time.

The bill does, however, create an interesting list of potential products that "induce" copyright infringement. Incidentally, itt also creates a list of defendants with some deep pockets.

iPod (Apple): you can store digital music on it and possibly give it to other people.

iTunes (Apple): you can rip CD's and then burn them to new CD's. You can even share music over a local area network with other people.

Garage Band (Apple): you can make your own music. You can even sample and mix other people's music. Future DJ Danger Mouses of the world beware.

AOL Instant Messenger (AOL Time Warner): you can create cyber-pseudonyms, meet people, and trade files with them. You can even make a large number of your own files available for other people to download. Some of these might conceivably be copyrighted.

Broadband Internet (Verizon, SBC, Comcast, and many, many others): you can download large files very, very quickly.

The list goes on and on. The companies that create and market these technologies know that people will use them for copyright infringement. Broadband internet providers tout their systems' ability to let you download music and video in seconds. Manufacturers of digital music players encourage users to rip and burn music.

To "abet" means to encourage, incite, instigate, or assist another in the commission of a crime with knowledge of its wrongfulness. So is there anything that doesn't fall within the INDUCE Act's reach?

Perhaps it's no surprise that the INDUCE Act collapsed because negotiations between technology and content interests fell through.

Undaunted, however, the entertainment industry has soldiered on, bringing P2P before the other branches of the federal government. Seeking review of a decision that effectively legalized file sharing networks, the movie industry got the Supreme Court of the United States to review the Ninth Circuit's decision in MGM v. Grokster. They also managed to get the Federal Trade Commission to take notice, accusing P2P companies of engaging in unfair trade practices, including offloading copyright infringement liability on their users.

While the FTC can set down regulations designed to ensure that P2P networks don't deceive their users, the Supreme Court has the power to essentially destroy the technology, which would make big media and its flunkies in the Senate extremely happy.

The core of the issue is whether Grokster's P2P network is capable "substantial noninfringing uses." In defining the term in the context of a video tape recorder, the Supreme Court said:

Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.

The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether on the basis of the facts as found by the District Court a significant number of them would be noninfringing.

Oddly enough, the Napster decision, where a federal appeals court determined that the granddaddy of all P2P networks was liable for copyright infringement, contains some important language too:

We depart from the reasoning of the district court that Napster failed to demonstrate that its system is capable of commercially significant noninfringing uses. The district court improperly confined the use analysis to current uses, ignoring the system's capabilities. Consequently, the district court placed undue weight on the proportion of current infringing use as compared to current and future noninfringing use.

So what does this mean?

It means that in  deciding whether a P2P network is "capabale of substantial noninfringing uses," it's important to consider not only how the technology is used now, but how it might be used in the future. It means that the fact that most P2P systems are used to swap files that include a large majority of illegally copied files doesn't necessarily condemn P2P any more than an isolated example of trade in noninfringing files exonerates it.

The Napster court had some other interesting things to say too. It noted that, in deciding whether a P2P network provider could be held liable for vicarious copyright infringement, which requires promoting infringement, being able to control it and not doing so, and profiting from it, the ability to control the service must be limited by the system's current architecture.

In other words: can you control infringement now? Not can you redesign the system so that it will let content providers control how people use their own personal property? Not can you make yourself the guardian of big media's intellectual property so that the entertainment industry doesn't need to police its own copyrights but instead can force the technology industry to do it for it?

It's tempting to say that Grokster and other systems like it could have stopped a lot of infringement by simply filtering. The Napster experience showed how well that worked. It was a miserable failure that led to the proliferation of bad spelling. But courts have always erred on the side of innovation. P2P or not, the RIAA and MPAA can still enforce their copyrights. They have done so successfully with an onslaught of litigation.

This is not a debate about whether or not the entertainment industry can enforce its copyrights. It's about whether the industry should have the right to force other people to do its dirty work.

5 Comments:

Anonymous file sharing said...

Hi Jim Lai,
I was looking for information about peer to peer file sharing when I came accross your blog. LAW - P2P Spotlight doesn't answer all of my questions but it sure looks like it'll be useful. I'm off to find more resources on peer to peer file sharing. Good luck and keep it up.

4:48 PM  
Anonymous peer to peer file sharing said...

Hi Jim Lai,
I was researching peer to peer file sharing related stuff when I found your blog. While LAW - P2P Spotlight wasn't exactly what I was after, it made interesting reading so I'll be sure to pop by again. I'm off to find out more information about peer to peer file sharing. Keep up the good work.

1:57 PM  
Anonymous p2p file sharing said...

Hi Jim Lai,
I was researching p2p file sharing related stuff when I found your blog. While LAW - P2P Spotlight wasn't exactly what I was after, it made interesting reading so I'll be sure to pop by again. I'm off to find out more information about p2p file sharing. Keep up the good work.

1:32 AM  
Anonymous file sharing software said...

Jim Lai,
I have been researching file sharing software resources and I stumbled upon your blog. Although LAW - P2P Spotlight isn't what I was really after, it made a change from the usual run-of-the-mill blogs I normally seem to find. I'm going now to find more information on file sharing software. Take care.

9:35 PM  
Anonymous peer to peer file sharing said...

Hi Jim Lai,
I was looking for information about peer to peer file sharing when I came across your blog. LAW - P2P Spotlight doesn't really cover what I was after but it sure looks like it'll be useful. I'm off to find more resources on peer to peer file sharing. Good luck and keep it up.

7:04 PM  

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