Peer-to-Peer File Sharing
Peer-to-Peer (P2P) Primer
- For a basic understanding of how the
software works, see Metro-Goldwyn-Mayer
Studios, Inc. v. Grokster Ltd., 380 F.3d 1154 (9th Cir. 2004). Read pp. 10-13.
- Also take a look at Kazaa’s and LimeWire’s
descriptions of how their systems work.
- Finally, take a look at these
- The general entry for peer-to-peer.
- Also, this
chart showing the number of p2p file sharing programs out there. Of interest on the chart are the
presence of spyware/adware and the ability to share files "anonymously."
- In these instances, pay attention to
what advantages peer-to-peer file sharing has over traditional
client/server distribution, as well as the advantages and disadvantages of
the various methods of indexing files.
A Copyright Primer
section is optional. However, it
may be helpful if you want a better grasp on the copyright law, as it pertains
to P2P file sharing.
- American copyright law is grounded
in Article I, Section 8, Clause 8 of the Constitution:
"The Congress shall have Power . . . To promote
the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and
- What does copyright protect? (Chapter
- Read 17 U.S.C. § 102 for what types
of works are protected (and not protected) by copyright.
- Read § 106 for the exclusive rights
afforded to a copyright owner.
For our purposes, the most important of these are reproduction and
distribution of the work.
There are exceptions to the exclusive rights in § 106, but they
usually are irrelevant in the file sharing context.
- Who owns a copyright?
- Read 17
U.S.C. § 201(a), (b), and (d).
- Record labels usually say their
sound recordings are "works made for hire." This means that, if I record an album for Sony, Sony
is considered the author and owner of the sound recording. Movie studios work the same way.
- As for the underlying song itself,
the songwriter is usually considered the author and initial owner. S/he will then transfer the song
to a music publisher, who then owns the copyright in the song.
- What is copyright infringement? (Chapter
- Read 17 U.S.C. § 501(a)-(b).
- So, if I make an mp3 file of "Let
It Be" by the Beatles available over a P2P network and someone downloads
it, I have distributed the song and the sound recording without authorization. The copyright owner of the
recording (in this case, Apple Records) can sue me for infringement. The copyright owner of the
underlying song (in this case, Sony/ATV) can also sue me for
- So what happens to me if I get
caught? Read §§ 502-507.
As if we didn’t
know, P2P file sharing programs are used to share music, movies, software, etc.
over the internet. Much of it is
unauthorized. From a policy
standpoint, how much of a problem is this?
- The RIAA and MPAA certainly think
it’s big, saying they have lost hundreds of millions of dollars due to
internet piracy. See also the
Music United website.
- Economists disagree over whether P2P
sharing actually causes lost sales.
New York Times article.
- Extremely optional: The studies
alluded to in this article can be found here
(Oberholzer/Strumpf) and here
(Liebowitz). If an
economically inclined person in the class would be so kind as to clue us
in on what the heck is going on in these studies, I’m sure we would all
be eternally grateful.
- Read the section of Larry Lessig’s Free Culture called
"Piracy II" (pp. 66-79 of the book, pp. 80-93 of the PDF).
- Think about the four types of
sharing that Lessig delineates.
How many of us have engaged in these types of sharing? How would you weigh the costs of
type A sharing against the benefits of types B-D?
- In the Grokster case before the Supreme Court, a
group of musicians submitted this
amicus brief attesting to the benefits they received as a result of
(type D) sharing. Read parts
I and II of the argument (pp. 18-24) and browse through the statements of
interest (pp. 6-15).
Suing the Individual Users of
Most people have
heard about the RIAA’s lawsuits
against individuals who allegedly share music files through P2P
networks. The latest round of
suits by the IFPI (the RIAA’s international equivalent) netted
8,000 file sharers.
- Sometimes the RIAA’s tactics appear
heavy-handed, such as when they sued this
83-year-old dead grandmother or this 12-year-old girl. Is this a sign of the industry’s
overzealousness, or are these examples merely unfortunate effects of an
otherwise worthy campaign against pirates?
- Take a look at this site showing what
exactly happens when the RIAA sues an individual. Take note of a few things:
- Most individuals share files
anonymously, and the RIAA is forced to sue "John Does" until it finds out
the true identity of the file sharer (obtained by subpoenaing the file sharer’s
ISP). Does this raise
privacy concerns? Any other
- Check out the amounts of money
obtained by the RIAA in each settlement and in each default
judgment. Pretty heavy
stuff — copyright owners are threatening to pursue statutory damages (up to
$150,000 per infringement), and so a settlement in the $3700 range sounds
like a "bargain."
- An early story
suggests the RIAA’s campaign against file sharers has been
successful. A more recently
(optional read) cautiously corroborates this, pointing out:
- File sharers may simply reduce the
number of files shared, bringing them "below the radar" of the RIAA
(which had announced that it was targeting people who share over 800
files). In the end, there is
still a generous supply of music files available for download.
- A potential public backlash may
result as consumers react to the RIAA’s tactics.
Suing the P2P Software
- The three types of secondary
liability that could be imputed to P2P companies (Part III.B.).
- The types of "affirmative acts" the
Supreme Court held could show "inducement" (Part IV.C.; see also pp. 9-14
and 25-28 of Grokster).
- The steps von Lohmann says a P2P
developer can take to insulate itself from secondary liability (Part VI).
- Links to the cases in the above
analysis are provided below for your edification and entertainment (but
not required reading).
- The Grokster case was remanded down to the
district court, which applied the new inducement theory and granted MGM
summary judgment against StreamCast (after co-defendants Grokster and Sharman
Networks had settled). Skim
through pp. 28-45 of the
order granting summary judgment, taking note of the details in the
record that court says show inducement.
- Do you agree with the court’s
conclusion that StreamCast "induced" copyright infringement?
- The EFF writes a response to the
StreamCast decision here. Do you agree with this response?
you were a P2P developer, how would you design your system and business
to avoid secondary liability?
Are von Lohmann’s tips enough?
- In a strange turn of events,
Bertelsmann AG (the parent company of BMG Publishing and half-owner of
Sony/BMG record label) invested over $90 million in the original Napster
while it was facing legal battles.
The other record labels obviously didn’t like this, and sued Bertelsmann,
saying the influx of cash it gave Napster staved off bankruptcy and
allowed massive infringement to continue for months longer than it should
have. At least one claim
against Bertelsmann has been settled.
- Collective Licensing — read the EFF’s proposed
collective licensing system, whereby each file sharer pays $5 a month
for the right to share (download as well as upload) as much content as
they want. Think about the
viability of such a system.
- From the standpoint of a major
record label or music publisher, would this system recoup enough revenue
to justify expending money on recording and releasing an album?
- If the music industry does not
"sign on" to a collective licensing system, von Lohmann advocates a
compulsory license, whereby rightsholders would have to allow sharing of
their music and would receive a fee set by the government. Some people (optional
read) disagree with this, extolling the virtues of a free market. What are the relative advantages
and disadvantages of a compulsory license, a collective license, and the
current system where each user must negotiate separately with each rightsholder?
- What do you think of the promise of
P2P for independent or unsigned musicians? Will this new method of distribution obviate the need
for musicians to sign with major labels, or put them on even ground?
- What happens if people don’t pay
their fee? Von Lohmann seems
to assume that "file sharers are willing to pay a reasonable fee for the
freedom to download whatever they like," and that copyright owners could
continue to enforce their rights, "offer stragglers [who don’t pay] the
opportunity to pay a fine and get legal." Is this realistic?
- Read this
article about the effort to create "fingerprinting" technology that
will be used to detect copyrighted music and movies and block their
distribution over P2P networks.
- Take a quick look at Snocap’s and Audible Magic’s
- Should filtering be required to avoid
secondary liability for inducing copyright infringement?
Fun Stuff (completely optional)
- "Edumacation." Check out this
cartoon trying to teach America’s youth about the value of copyright.
- A Convenient Champion of
Copyright. Sharman Networks, the company
behind KaZaA, provided this
notice to Google that several websites were distributing unauthorized,
infringing copies of the KaZaA software. Google promptly removed access to these sites from its
Return to the syllabus