Infingement and the p2p networks
p2pnet.net News:- “The exchange of copyrighted materials, including recorded music, on a P2P network is inevitable. Some users will use P2P technology to infringe.”
That’s among conclusions reached by Niels B. Schauman, professor of law at the William Mitchell College of Law, St Paul, Minnesota, in his Direct Infringement on Peer-to-Peer Networks.
But, he warns, “If that alone is enough reason to shut down the technology, then we have sacrificed technological progress for the sake of pop music, a poor choice of technology policy at a time when technology has never held more promise.”
As matters stand, “the right of the public to make noncommercial copies of recorded music for personal use, agreed to by the affected industries in 1992, is directly threatened”. And this, says Schaumann, stems directly from the Napster court’s lack of care in analyzing and describing the specific nature of the infringement taking place on the Napster p2p network.
“Napster should indeed have lost the case, but not for the reasons given by the Ninth Circuit, which was far too quick to conclude that consumer copying, rather than distribution, was the problem,” he states, going on:
“Courts must realize that copyright cases like Napster are not just copyright business as usual; they instead represent a new trend toward adjudicating the rights of the public in cases where the public is unrepresented before the court and the parties that are represented are a poor proxy for the public interest.
“In a copyright regime where the statutes are drafted by affected industries, and the courts adjudicate the rights of the public without the public being present, it is questionable whether the ‘progress of science and the useful arts’ can be well served.
“Finally, although this Article focuses on direct infringement of P2P users, the secondary liability of P2P providers may threaten P2P technology itself.”
But, says Schaumann, there’s hope yet.
Discussing the Sony Betamax case which, he says, goes beyond “simply a holding that consumers have the fair use right to copy broadcast television programs for their own use,” he points out that in it, the Supreme Court also says distribution of a technology that’s capable of substantial noninfringing uses is not contributory infringement, and:
“This was not helpful to Napster, due in part to the Ninth Circuit’s interpretation of Sony as relating only to the element of knowledge required for contributory infringement. ‘Napster . . . held that if a defendant could show that its product was capable of substantial or commercially significant noninfringing uses, then constructive knowledge of the infringement could not be imputed. Rather, if substantial noninfringing use was shown, the copyright owner would be required to show that the defendant had reasonable knowledge of specific infringing files.’ But a better reading of Sony would extend beyond merely knowledge, to the entire claim of contributory infringement. Judge Posner seems much nearer the mark: ‘[In Sony, t]he Court was unwilling to allow copyright holders to prevent infringement effectuated by means of a new technology at the price of possibly denying noninfringing consumers the benefit of the technology.’
“It will require both confidence and courage from a court to resist the pressure of content owners to eliminate technology that could be used to infringe. In the past, maybe because the technology seemed more readily understandable, such confidence and courage was apparently in greater supply than it is today. A little more precision, however, might go a long way to making courts more sure of themselves ruling on the claims of content owners, and is essential if the progress of science and the useful arts is to continue.”
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See:-
Niels B. Schauman – Direct Infringement on Peer-to-Peer Networks, April, 2005, 2005
May 17th, 2005 at 8:48 am
Greetings:
I think there is a subtle point that is often forgotten. Infringement is not merely a single act of replication. Whether some set of actions constitutes infringement depends almost entirely on what is done with results of the replication activity. I would think that to establish a claim of infringement in a court of law the plaintiff would not only have to show that a replica or derivative of the protected work was produced, but would also have show by a preponderance of the evidence that it was subsequently used in an impermissible way.
If someone dumps a bin/cue of a protected work into the upload lock box on my ftp server, then I burn it to a CD intending to find out what it is, and then use the CD as a coaster for my ceramic coffee mug with the rough bottom until the CD gets all scratched beyond any semblance of servicability and that CD has never been in a drive since the protected work was burned onto it, have I infringed?
If I make an unauthorized copy of a protected work and then never do anything with it again, so much as even look at it, and it ends of in the trash, totally unusable for any purpose by anyone, has there been infringement?
It’s somewhat evocative of the old adage, “If a tree falls in the woods and there is no one around to hear it, does it make a noise?”
–TurboGeek