Law 897: Julie Bernard's assignment for November 8, 2010
PEER-TO-PEER FILE SHARING
INTRODUCTION (links in this section optional)
For a short primer on how peer-to-peer (abbreviated "p2p") file sharing works, watch this video from BitTorrent.
Though recent reports have shown a decrease in the overall percentage of Internet traffic used by p2p networks (due likely to an increase in streaming traffic), p2p still accounts for a significant portion of all downstream traffic on the net, and a majority of upstream traffic. While p2p technology has been used in a legal ways for efficiently distributing content (including Creative Commons licensed material, sharing of educational material, digital download deals struck between Torrent sites and entertainment providers, and VoIP communication such as Skype), it is also infamous for the vast amount of copyright infringing material available on a host of p2p file sharing networks (one study estimated more than 99%, though this number is contested). The readings and discussion today will focus on the ongoing battle over this dissemination of copyright infringing material on the internet.
I. THE ATTACK ON P2P
Going after the p2p software providers:
Read MGM v. Grokster, 545 U.S. 913 (2005), (another copy)
Optional: For a more recent case, skim Arista Records v. Lime Group, 210 U.S. Dist. LEXIS 46638 (S.D.N.Y. 2010) (another copy) (sections I, II, and V only). Last week on October 26, Limewire was issued an injunction requiring it to shut down, and a trial to assess damages will be held in January.
Going after the downloaders:
RIAA lawsuits - For an overview, please skim EFF’s whitepaper, RIAA v. The People: Five Years Later
Anti-p2p law firms - Please read this article from Arstechnica for an overview.
Optional: NY attorney Ray Beckerman’s blog, "Recording Industry vs. The People", tracks updates in a number of these cases
Optional: For a lighthearted look at the issue of file sharing, watch this short film from Comedy Central's "The Showbiz Show w/David Spade".
II. A BETTER SOLUTION?
Several potential solutions to the p2p file sharing problem have been proposed. What are some of the pros and cons to each plan? Do you feel one of these solutions is best, or do you have another idea?
Voluntary collective licensing -- read the EFF whitepaper A Better Way Forward: Voluntary Collective Licensing of Music File Sharing, by former EFF senior staff attorney Fred von Lohmann
Professors Mark Lemley and Toney Reese propose a copyright small claims court – skim part III, with particular emphasis on (b)(2) of their article Reducing Digital Copyright Infringement Without Restricting Innovation. (also available at 56 Stan. L. Rev. 1345)
Professor Neil Netanel proposes a compulsory license. Skim sections I, IV and V of his article Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing (2003) (also available at 17 Harv. J. Law & Tec 1).
Provisions of the Higher Education Opportunity Act require colleges and universities to implement plans to combat illegal P2P file sharing. Please read this article describing some of the approaches taken by various universities, including the "BAYU - Be Aware You’re Uploading" program used in Michigan’s undergraduate residence halls.
Graduated response
o Last year, France implemented a controversial "Three strikes" law. Please read this article, and a follow up on the impact (or lack thereof) on file sharing in the country.
o Ireland’s high court says no to a proposed three strikes plan. Read this article.