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Please improve this article or discuss the issue on the talk page. | This article looks at file sharing and the law, including controversies, copyright issues, legislative regimes, and notable cases. Image File history File links Gnome_globe_current_event. ...
Image File history File links Emblem-important. ...
Image File history File links Gnome-globe. ...
Since file sharing can be used for both uncontroversial and controversial purposes, this article focusses upon the latter, where file sharing is being used and a significant or predominant proportion of material shared is subject to copyright in the same or another country. File sharing is the activity of making files available to other users for download over the Internet, but also over smaller networks. ...
Background
File sharing | | The neutrality of this section is disputed.
Please see the discussion on the talk page. | -
The debate on peer to peer and file sharing is a global phenomenon. Peer to peer ("P2P") technology allows people worldwide to share files and data; however a significant proportion of the data shared is material passed freely between users that is (or should legally be) subject to copyright or other restrictions. Different legal systems, and different technologies, handle this differently. Some of the key background and distinctions are as follows: Image File history File links Unbalanced_scales. ...
File sharing is the activity of making files available to other users for download over the Internet, but also over smaller networks. ...
For other uses, see Peer-to-peer (disambiguation). ...
File sharing is the activity of making files available to other users for download over the Internet, but also over smaller networks. ...
- P2P file sharing is used both legitimately (to distribute with permission or non-copyright materials), and illegitimately (in breach of copyright). It is highly popular and effective, with some estimates being that 15 - 35% of all internet traffic is P2P usage in some form or other. [citation needed]
- P2P systems vary - some rely upon a centralized server, others are decentralized with no one site operating the system. Recent systems often have anonymity or obfustication built in, making it harder to identify senders, recipients and material, and providing a degree of plausible deniability.
- In some file sharing systems, the owner of a sharing system directly distributes files themselves. In others, notably BitTorrent, the organizer is not in fact distributing any copyright material. rather, they act like a cataloger or co-ordinator, indexing files rather than themselves offering any such material. A typical such file might provide a filename, a location it can be downloaded from, and various checksums which can be used to verify the file's integrity when downloaded. It does not, itself, contain any media material, whether legal or otherwise.
Plausible deniability also Deniability is the term given to the creation of loose and informal chains of command in government, which allow controversial instructions given by high-ranking officials to be denied if they become public. ...
This article is about the protocol. ...
A checksum is a form of redundancy check, a simple way to protect the integrity of data by detecting errors in data that are sent through space (telecommunications) or time (storage). ...
Copyright law -
A copyright in the United States consists of the rights enumerated under 17 USC 106.[1] Not to be confused with copywriting. ...
The four largest record companies, working together under the leadership of the RIAA, seek to stop peer to peer file sharing by attacking the use of 'shared files folders'. They claim that the making of files available for sharing on a p2p network infringes on their right under 17 USC 106(3) "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending". Critics have argued that the RIAA has failed to show (a) dissemination, (b) of actual phonorecords or copies, (c) "to the public" (as opposed to a limited group), or any (d) sale, transfer of ownership, rental, lease, or lending..... all of which are required components of a 17 USC 106(3) "distribution".
Legal issues relevant to file sharing The challenges facing copyright holders in the face of file sharing systems are quite novel historically and have highlighted many new challenges in both theory and practice: -
- Ambiguities in the interpretation of copyright law
- The new challenges posed by international communications and varying legislations
- Mass litigation and the development of processes for evidence and discovery
- Rapidly developing new technologies and uses
- Low barriers to entry by would-be sharers and the development of a mass usage of the technologies
- File sharing approaches developed in response to litigation against sharers, which obfusticate or hide the fact that sharing is happening, or the identities of those involved. For example: encryption and darknets.
Further challenges have arisen because of the need to balance self-protection against fair use. A perceived overbalance towards protection (in the form of media that cannot be backed-up, cannot be played on multiple systems by the owner, or contains rootkits[2] or irksome security systems inserted by manufacturers) has led to a backlash against protection systems in some quarters. For example, the first cracked AACS encryption key in December 2006 came about because: This article does not cite any references or sources. ...
Look up discovery in Wiktionary, the free dictionary. ...
Encrypt redirects here. ...
A Darknet is a private virtual network where users connect only to people they trust. ...
For fair use in trademark law, see Fair use (US trademark law). ...
A rootkit is a general description of a set of programs which work to subvert control of an operating system from its legitimate operators. ...
The Advanced Access Content System (AACS) is a standard for content distribution and digital rights management, intended to restrict access to and copying of the next generation of optical discs and DVDs. ...
December 2006 is the twelfth and final month of the year and will begin in 2 day(s). ...
- "I just bought a HD-DVD drive to plug on my PC, and a HD movie, cool! But when I realized the 2 software players on windows don't allowed me to play the movie at all, because my video card is not HDCP compliant and because I have a HD [high definition] monitor plugged with DVI interface, I started to get mad... This is not what we can call "fair use"! So I decide to decrypt that movie..." [3]
HD DVD or High-Definition DVD is a high-density optical disc format designed for the storage of data and high-definition video. ...
HDCP (High-bandwidth Digital Content Protection) is a specification developed by Intel Corporation to protect digital audio and video content as it travels across Digital Visual Interface (DVI) or High Definition Multimedia Interface (HDMI) connections. ...
For other meanings of DVI, please see DVI (disambiguation). ...
Cases and case law Image File history File links Broom_icon. ...
The Basic Copyright Law Issues At this time the development of the law in this area is in its infancy.
In the United States, for example, a record industry trade association, the RIAA, on behalf of the four (4) largest worldwide record companies, has launched an estimated 30,000 cases over a 4-year period, all against people whose internet access accounts have, according to the plaintiffs, been associated with peer-to-peer file sharing accounts using FastTrack technology, e.g., Kazaa, LimeWire, Gnutella, iMesh, and others. The suits are based upon a report of an internet investigator who claims to have detected a "shared files folder". At the core of these cases is the allegation that the defendants "made available for distribution" the song files in a shared files folder. See, e.g. Elektra v. Barker[4] and Warner v. Cassin[5], two pending cases in which the legal viability of that accusation is being tested, for an examination of the legal issues. So far only one case against an alleged infringer is known to have gone to trial[6], and no other fully contested cases are known to have been determined by a trial, summary judgment motion, or otherwise. The trial which did go forward took place in October, 2007, and resulted in a verdict of $222,000 for "making available" 24 song files having a total retail value of $23.76, or less. The defendant is moving to set aside the verdict, and if that does not succeed will be filing an appeal. So the question of whether 'making files available' over a peer to peer network is actionable, is an open question in the United States. The RIAA Logo. ...
Primary Infringement Liability The fundamental question, "what use can a p2p filesharing network's customers make of the software and of copyrighted materials without violating copyright law", has no answer at this time, as there has been almost no dispositive decisionmaking on the subject.
This issue has received virtually no appellate attention, the sole exception being BMG v. Gonzalez[7], a decision of the U.S. Court of Appeals for the Seventh Circuit, which held that where a defendant has admitted downloading and copying song files from other users in the p2p network without permission of the copyright holders, she cannot claim that such copying is a "fair use". Since Gonzalez involves a defendant who had admitted to actual copying and downloading of songs from other unauthorized users, it is of limited applicability in contested cases, in that it relates solely to the reproduction right in 17 USC 106(1), has no bearing on the 17 USC 106(3) distribution right, and does not deal with defenses other than "fair use".
A case which has broad implications, not only for the subject of p2p file sharing but for the internet at large, is Elektra v. Barker,[8] an RIAA case against Tenise Barker, a Bronx nursing student. Ms. Barker moved to dismiss the complaint, contending, among other things, that the RIAA's allegation of "making available" did not state any known claim under the Copyright Act.[9][10]. The RIAA countered with the argument that even without any copying, and without any other violation of the record companies' distribution rights, the mere act of "making available" is a copyright infringement, even though the language does not appear in the Copyright Act, as a violation of the "distribution" right described in 17 USC 106(3).[11] Thereafter, several amicus curiae were permitted to file briefs in the case, including the MPAA, which agreed[12] with the RIAA's argument, and the Electronic Frontier Foundation (EFF), the U.S. Internet Industry Association (USIIA), and the Computer & Communications Industry Association (CCIA), which agreed with Ms. Barker.[13][14] The US Department of Justice submitted a brief refuting one of the arguments made by EFF,[15] but did not take any position on the RIAA's "making available" argument, noting that it had never prosecuted anyone for "making available".[16]. The Elektra v. Barker case was argued before Judge Kenneth M. Karas in Manhattan federal court on January 26, 2007[17], and as of this writing is awaiting decision. is the 26th day of the year in the Gregorian calendar. ...
Year 2007 (MMVII) is the current year, a common year starting on Monday of the Gregorian calendar and the AD/CE era in the 21st century. ...
There is at least one indication that the RIAA may be abandoning its "making available" theory. In a San Diego, California, case, Interscope v. Rodriguez, where the Judge dimissed the RIAA's complaint as "conclusory", "boilerplate", "speculation", the RIAA filed an amended complaint which contained no reference at all to "making available". [18] In subsequent cases, the RIAA's complaint abandoned altogether the "making available" theory, following the model of the Interscope v. Rodriguez amended complaint.
Meanwhile, in its first jury trial, the RIAA prevailed upon the trial judge to give the jurors an instruction which followed its "making available" theory[19], over the protestations of the defendant's lawyer.
Secondary Infringement Liability Secondary liability, the possible liability of a defendant who is not a copyright infringer but who may have encouraged or induced copyright infringement by another, has been discussed generally by the United States Supreme Court in MGM v. Grokster[20], which held in essence that secondary liability could only be found where there has been affirmative encouragement or inducing behavior. On remand, the lower court found Streamcast, the maker of Morpheus software, to be liable for its customers' copyright infringements, based upon the specific facts of that case. [21]
Under US law "the Betamax decision" (Sony Corp. of America v. Universal City Studios, Inc.), holds that copying "technologies" are not inherently illegal, if substantial non-infringing use can be made of them. Although this decision predated the widespread use of the Internet, in MGM v. Grokster, the U.S. Supreme Court acknowledged the applicability of the Betamax case to peer to peer file sharing, and held that the networks could not be liable for merely providing the technology, absent proof that they had engaged in "inducement." Holding Manufacturers of home video recording machines could not be liable for contributory copyright infringement for the potential uses by its purchasers, because the devices were sold for legitimate purposes and had substantial non-infringing uses. ...
Holding Producers of technology who promote the ease of infringing on copyrights can be sued for inducing copyright infringement committed by their users. ...
A little over a year later, the RIAA initiated the first major post-Grokster, secondary liability case, Arista v. Limewire, in Manhattan federal court. Lime Wire denied the allegations, and counterclaimed, charging the major record companies with antitrust violations and other misconduct."Lime Wire Sues RIAA for Antitrust Violations"
A secondary liability case in Australia, under Australian law, was Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 5 September 2005, which was settled out of court.
More The Electronic Frontier Foundation (EFF) is a donor-supported group which seeks to protect and expand digital rights. Its activities include litigation, political lobbying, and public awareness campaigns. The EFF has vocally opposed the RIAA in its pursuit of lawsuits against users of file sharing applications and supported defendants in these cases. The foundation promotes the legalization of peer-to-peer sharing of copyrighted materials and alternative methods to provide compensation to copyright holders.[22] EFF Logo The Electronic Frontier Foundation (EFF) is an international non-profit advocacy and legal organization based in the United States with the stated purpose of being dedicated to preserving free speech rights such as those protected by the First Amendment to the United States Constitution in the context of...
More details by legislative regime
Europe -
In the European Union (EU), the 2001 EU Copyright directive, which implemented the 1996 WIPO treaty ("World Intellectual Property Organization Copyright Treaty"), prohibits peer-to-peer, claiming it is a violation of the directive. However, not all European member states have implemented the directive in national legislation. Notably, on December 22, 2005, after discussing the EU directive, the French parliament passed two amendments legalizing the exchange of copies on the Internet for private use. In a later proceeding, the French government withdrew the article in question and made illegal any p2p client obviously aimed at sharing copyrighted material. The term "obviously" was not defined. The project of law (called DADVSI) has still to be discussed by the French Senate and, if the decision differs from the Assemblée Nationale's, it will be debated on second lecture back at the Lower House. The European Union (EU) directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, commonly known as the EU Copyright Directive or short EUCD, is the EUs implementation...
The European Union (EU) directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, commonly known as the EU Copyright Directive or short EUCD, is the EUs implementation...
The World Intellectual Property Organization Copyright Treaty, abbreviated as the WIPO Copyright Treaty, was an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. ...
is the 356th day of the year (357th in leap years) in the Gregorian calendar. ...
Year 2005 (MMV) was a common year starting on Saturday (link displays full calendar) of the Gregorian calendar. ...
Coat of Arms of the French Republic DADVSI is the abbreviation of the French language Loi sur le droit dauteur et les droits voisins dans la société de linformation (in English: law on authors rights and related rights in the information society). It is a bill...
The Senate amphitheater in the Luxembourg Palace The Senate (in French :le Sénat) is the upper house of the Parliament of France. ...
The Palais Bourbon, front The French National Assembly (French: Assemblée nationale) is one of the two houses of the bicameral Parliament of France under the Fifth Republic. ...
Canada Interestingly, Canada stands out by authorizing, at least until the projected copyright reform, downloads on peer-to-peer networks under the "private copying" exception.
Important Cases
USA Holding Manufacturers of home video recording machines could not be liable for contributory copyright infringement for the potential uses by its purchasers, because the devices were sold for legitimate purposes and had substantial non-infringing uses. ...
Holding Producers of technology who promote the ease of infringing on copyrights can be sued for inducing copyright infringement committed by their users. ...
The AACS encryption key controversy arose in April 2007 when the Motion Picture Association of America and the Advanced Access Content System Licensing Administrator, LLC (AACS LA) began issuing Digital Millennium Copyright Act (DMCA) violation notices [1] to websites publishing a 16-byte number, represented in hexadecimal as 09 F9...
Sweden The Pirate Bay (often abbreviated TPB) is an Internet site that bills itself as the worlds largest BitTorrent tracker and also serves as an index for . ...
Singapore Odexs headquarters in International Plaza. ...
References - ^ 17 USC 106
- ^ See 2005 Sony BMG CD copy protection scandal.
- ^ By "Muslix64", written on doom9's forum. See original post and the ensuing AACS encryption key controversy.
- ^ Elektra v. Barker
- ^ Warner v. Cassin
- ^ Capitol v. Thomas (Duluth, MN)
- ^ BMG v. Gonzalez
- ^ Elektra v. Barker
- ^ Elektra v. Barker, Memorandum of Law in Support of Motion to Dismiss Complaint
- ^ Reply Memorandum of Law in Support of Motion to Dismiss Complaint
- ^ Elektra v. Barker, Plaintiffs' Memorandum of Law in Opposition to Dismissal Motion
- ^ Amicus Curiae brief of MPAA
- ^ Amicus Curiae brief of EFF
- ^ Amicus Curiae brief of USIIA and CCIA
- ^ Statement of Interest of U.S. Department of Justice
- ^ Statement of Interest, page 5, footnote 3
- ^ "Elektra v. Barker "Making Available" Oral Argument Now Available Online", Recording Industry vs. The People, February 27, 2007
- ^ "RIAA Abandons "Making Available" in Amended Complaint in Rodriguez case", Recording Industry vs. The People, September 10, 2007.
- ^ "Jury Instructions in Virgin v. Thomas Available Online" Recording Industry vs. The People, October 5, 2007 (See instruction number 15)
- ^ MGM v. Grokster
- ^ "Streamcast Held Liable for Copyright Infringement in MGM v. Grokster, Round 2", Recording Industry vs. The People, September 30, 2006.
- ^ Electronic Frontier Foundation. Making P2P Pay Artists. Retrieved on April 25, 2006.
The 2005 Sony BMG CD copy protection scandal was a public scandal dealing with Sony BMG Music Entertainments surreptitious distribution of rootkit software on audio compact discs. ...
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The AACS encryption key controversy arose in April 2007 when the Motion Picture Association of America and the Advanced Access Content System Licensing Administrator, LLC (AACS LA) began issuing Digital Millennium Copyright Act (DMCA) violation notices [1] to websites publishing a 16-byte number, represented in hexadecimal as 09 F9...
is the 115th day of the year (116th in leap years) in the Gregorian calendar. ...
Year 2006 (MMVI) was a common year starting on Sunday of the Gregorian calendar. ...
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