Copyright Laws vs. Peer-To-Peer File Transfer

Copyright Laws vs. Peer-to-Peer File Transfer

This paper presents a detailed examination of copyright laws, with a comparison to peer-to-peer file transfer. The author will take the reader on an exploratory journey, in which the details and outcomes of several well-known cases will be scrutinized. The author will also discuss the importance of copyright laws, and the elements of various cases that caused the rulings to go the way they did. The paper will also include a discussion about the effect Hollywood has on copyrights when it comes to issues such as the ability to download movies and songs. There were seven sources used to complete this paper.

Copyrights vs. peer-to-peer file transfer revisited

INTRODUCTION

When the technological explosion of the last few decades created issues in the area of copyright law, many people thought it would be a cut and dry decision. They were wrong. For the last several years, courts around the world have been charged with trying to figure out whether or not companies like Napster and movie download places are breaking the law and if so how can they be stopped? Copyright was a simple issue before the Internet was invented. Things were in writing and they could not be stolen, period. Bootlegged tapes and videos for sale were no different than committing plagiarism in the eyes of the law, and it was a simple procedure to prosecute, rule and sentence for those offenders. However, the advent of the Internet has created an entirely new division of questionable practices, in which no guidelines have been set to deal with them to date. Whether or not copyright laws and rules are being broken when it comes to Internet activity, like downloading songs and movies has so far been decided in the courts on a case by case basis. There are international considerations as well, because Internet users in other countries can access companies similar to Napster and download material. The laws of that nation pertaining to copyrighting may differ from the laws in the states, which further complicates the whole situation. As the world continues to expand its online capabilities, it will become more important than ever to establish guidelines and rules regarding copyrighting modem materials. Until that is completed, the world waits and wonders when and how to apply what is already established.

Before one can fully comprehend the importance as well as the confusion regarding the laws of copyright, and some of the ways the Internet is falling between the cracks, one must first fully understand what the copyright laws are and what they do to protect people and their works. According to the dictionary, a copyright means the exclusive right to reproduce, publish, and sell the matter and form (as of a literary, musical, or artistic work). While copyright attorneys and courtrooms argue the logistics around the globe, the concept is really quite simple in most cases. If one writes a book, or song or paints a picture they own all rights to that work and how it is used. They have the right to reproduce it, publish it, or sell it. This does not give anyone else the right to do so with the original person's work. In fact, a person who purchases the work cannot resell it or reproduce it without the express permission of the originator.

The purpose of the copyright rule is to protect work from being exploited without the creator's permission. In addition to the moral and principled reasons for protecting the work, there are financial considerations as well. When one creates work one has the right to benefit from that work financially just as the owner of a mechanic shop enjoys the financial benefits of the work he does on the customer cars each day.

It is very important that the copyright laws be maintained and obeyed for several reasons. The first reason is that if they were not enforced anyone could steal work from the originator and reap a profit, thereby taking money out of the originators lifestyle. In addition to the financial reason it is important to follow and maintain copyright law, because without it there would be great difficulty tracking who owned an original work if any legal issues came up regarding said work.

Copyright is a form of protection provided by the laws of the U.S. (title 17, U.S. Code) to "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize other parties to do the following:

Reproduce the copyrighted work in copies or phono records;

Prepare derivative works based upon the copyrighted work;

Distribute copies or phono records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

Display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including individual images of a motion picture or other audiovisual work; and Perform the work publicly by means of a digital audio transmission, in the case of sound recordings.

It is illegal for anyone to violate any of the rights provided by the act to the owner of copyright. However, sections 107 through 121 of the Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability; a major limitation is the doctrine of "fair use," which is given a statutory basis by section 107 of the act. In other instances, the limitation takes the form of a "compulsory license," under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created it. Only the author or those deriving their rights from the author can rightfully claim copyright."

Throughout the years, there have been many cases in which the copyright laws have been challenged and upheld. In more recent years many of the copyright cases have turned to the film and music industry because of the increased ability to duplicate and distribute such products. One of the famous case in recent history was the Sony vs. Betamax case. This case was before the internet was invented and for its time it was about state of the art wars on ownership.

It was ruled on in January of 1984 but the actual problems started several years before that. When VCRS were fist invented people were very excited because the could buy or rent movies at the local store and watch them at home. Many families who otherwise could not watch movies were now afforded the opportunity to do so. It was not long before the public realized that the VCR had been built with a recording device and that recording device could use a blank VHS tape to record television shows and television movies. The industry was not thrilled with the ability and many actors at the time spoke out against it, claiming it was a copyright infringement to do so.

In January 1984, the Supreme Court ruled that home recording of television programs on a VCR violates no law. "One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible." (Sony vs. Betamax).

One of the most important elements of the case was the fact that movies and television shows being shared with the public were considered almost a public domain. If someone wanted to record it and watch it again at a later time they were only recording something that had been handed over to the public already. In addition to this it was not for profit but private use, which made it, even less of a copyright infringement than if the thousands around the nation were selling the recordings. The television shows were public property once they were broadcast in the eyes of many including the deciding court officers.

This was a similar case to the later case of Napster. Napster was hurting themusic industry the prosecution charged, because the artists get royalty payments off every CD or tape that is sold. The artist cuts the cd or tape and the costs are returned through sales. However after the costs are recouped the artist usually receives a small payment for each CD or tape that is sold. When the public began to have access to Napster and companies like Napster enough people were downloading free music that the artists believed they were being cheated out of substantial funds that they were not going to get as royalty payments.

Peer to Peer file sharing

Following the ruling that determined it was okay to record television movies and shows on blank VHS tapes for private use the explosion of alternatives arrived. About the time the Sony trial was winding down the Internet was heating up. The Internet was something that allowed communication between people across the globe and with many at once or one on one. It was and has been one of the most promising futuristic technological inventions in our history. The internet and dot com companies began springing up all over the world and with that came the SONY Betamax clones of sorts. Napster is probably the most well-known peer-to-peer file sharing example that is available at the present time. Peer to peer file sharing seems to get around the issue of copyright laws because of its lack of a central gathering spot that it can call home.

Peer to peer means there's no central server to serve the injunction to, the lawyers don't have anybody or anything to rout. In the post-Napster world the courts aren't the ones writing the code. Peer to peer means people to people, stringing PC's together with out a center. "

The central copyright law concepts that P2P developers must grapple with are the doctrines of contributory and vicarious copyright infringement. These are so-called "indirect" or "secondary" theories of copyright liability that can hold a software maker or system developer liable for the infringing activities of end-users. In a widely-used public peer-to-peer file-sharing environment, it is a virtual certainty that at least some end-users will engage in infringing activity. By invoking contributory and vicarious copyright infringement, copyright owners have been seeking to hold P2P tool-makers (like Napster and Scour) responsible for these infringing end-user activities. Consequently, an uding of these two copyright doctrines can be crucial if P2P developers wish to limit their vulnerability to copyright liability. Contributory infringement is similar to "aiding and abetting" liability: one who knowingly contributes to another's infringement can be held accountable. In order to prove a contributory infringement claim, a copyright owner must establish the following elements: (1) some act of direct infringement (by end-users, for example); (2) that the defendant knew or should have known of the defendant of the direct infringement; and (3) that the defendant materially contributed to the direct infringement. "

The end run attempt around the copyright infringement laws by Peer-to-Peer file sharing has been ruled on in the nation's courts in the Napster case. The law believes that a person is violating copyright infringement laws if that person has control over the users of the file system and stands to directly benefit financially from the system and the control. And the third criteria for infringement violation are that the defendant has the ability or the right to control the person who was actually doing the infringing.

The recent decision by the Ninth Circuit in the Napster case is the first case involving the application of contributory and vicarious liability to a peer-to-peer file sharing system. In the course of ruling against Napster, the court interpreted both contributory and vicarious infringement in an expansive way. With respect to contributory infringement, the court ruled that, after receiving notice from a copyright owner that a work is being shared on its system without authorization, Napster has a duty to take reasonable steps (including implementing technical changes to its system) to prevent further distribution of the work. This ruling creates the potential that once a P2P developer receives a "cease and desist" letter from a copyright owner, he or she must "do something" (including making changes to the system architecture) to stop the infringement, or else face liability. "

The court ruled that claiming ignorance of what users were doing and who was infringing was not good enough. According to the courts that herd the case if the owners had the ability to police and chose not to do so they were actually acting against the rules. They could police the activity and did not which made them liable. One of the things that was attempted initially is that artists or their representatives sent letters to Napster asking them to remove the ability to download their particular works from their system. Napster publicized this request and publicly explained that it would be cost prohibitive and time impossible to comply with this type of request as it meant stopping the downloading of thousands of works through the peer-to-peer file sharing system that it was founded in. The refusal to police when a person has the ability to police the activities was in violation of copyright rule and responsibility as well.

If one wanted to begin a peer-to-peer file sharing company to avoid the copyright rules and laws the Napster case actually laid the blueprints for the future companies to use in their effort. There are several things that can be undertaken by the companies that may force the copyright rules to turn a blind eye to the goings on of the company.

Some of the options that the peer-to-peer file sharing developer has to choose from include:

Total control or total anarchy.

Better to sell stand-alone software products than on-going services.

Can you plausibly deny knowing what your end-users are up to?

What are your substantial noninfringing uses?

Disaggregate functions.

Don't make your money from the infringing activities of your users.

Be open source.

Do not be a direct infringer: make and store no copies.

Do not build any "circumvention devices" into your product.

Don't use someone else's trademark in your name. "

Napster Case

The elements of the case were simple. The music industry insisted that Napster was providing a way for the customer to get around copyright laws by providing a way for them to download an entire CD instead of going ot the store and paying for it. Napster replied that it had no control over what its participants were doing because it did not provide a holding area, tank or shelf for thousands of recorded songs. It merely provided a link between its users to share compatible files and those files happened to be personally downloaded music that was encoded for MP3.

The problem that the music industry has with Napster is that it is a big, automated way to copy copyrighted material. It is a fact that thousands of people are making thousands of copies of copyrighted songs, and neither the music industry nor the artists get any money in return for those copies."

Songs that you find on mp3.com (and sites like it) are:

In the public domain

Uploaded by artists who are trying to get exposure. These artists have usually not yet cut a deal and they are not losing royalties by having their music downloaded through these means. The exposure of allowing millions to access their music could actually boost their careers if the right people were to hear it or begin to as radio stations why they are not playing it.

Released by record companies trying to build interest in a CD. Record companies could easily use Napster and others like Napster to promote the artists that they are representing. It is a free means of promotion and it takes little more than someone uploading the new song and letting the public have at it through the peer-to-peer file sharing system. If they like the individual song then its possible they will go out and buy the entire CD. Therefore the use of Napster through a recording company could be a positive and financially profitable venture for the artist.

Paid for by you for the right to download, and the site pays the artist and/or record company royalties. When the suit was first filed this was an often discussed possibility. The owners did not want to charge for services and the public had gotten so used to free access that the idea of having to start paying was not a popular one.

An item that is adding to the controversy is the Audio Recording Act. This law provides the buyer of a CD or cassette with the right to not only make a copy for their own personal use, but also to make copies for friends as long as the original owner is not selling the copies or receiving any other type of compensation. Napster fans say that what they are doing is perfectly legal since the law does not specify who those friends must be or how many of them you can give a copy to.

It worked for awhile and then the industry got together and filed a suit against Napster. Napster fought to win but lost and the case made international history and the first such case to be tried since the advent of the internet. The court ruled that Napster did indeed have control over its users by virtue of the fact that it could close down accounts and block access to any of its users at any time. It also believed that Napster had the ability and responsibility to monitor the activity that was being shoved through its site even though the end result was sharing files between 'friends' who all happened to connect through Napster.

If one wanted to create a site such as Napster but stay out of court one could use the list mentioned beforehand and follow its guidelines. The answer so far in the courtrooms seems to be to allow total control to go to the users or find oneself liable for copyright infringement damages.

Hollywood is making its own waves when it comes the copyright infringement laws. On the heels of the Napster advent America's film industry has become privy to a similar ability using movies that was being done through Napster for music. The Hollywood movie industry is a booming one with movies like the Blair Witch project grossing over $120 million in the box office. Moviegoers by the millions pay to sit in the theaters and enjoy the stories as they unfold on the screen. In recent months it has become possible to download a full movie in the same way one used to go to Napster to download a song. In this instance however the up and coming companies have learned from the mistakes made by Napster so they are even harder to shut down. They have worked the bugs out it seems and they are able to maintain their existence in spite of angry Hollywood actors and their union. With each new case that comes before the courts and consequently the public eye, start up companies have the ability to watch the cases and learn from the defendant's mistakes before they begin their own venture. Hollywood knows this so it is taking an entirely different approach. Hollywood lobbyists are asking for mandated chips to be installed in new computers that will disable it from being capable of downloading MP3 movies onto its hard drive or a floppy. This would allow the copyright laws to remain intact and not have to try and catch the slippery-sloped new companies working to get through the loopholes. Is this fair? Yes. It is one thing to allow home television watchers to record the show on VHS tapes, it is quite another to rob actors of their money by stopping the movie going all together. When a show is on television the people sitting in the living room have not paid to see that show. It is brought to them free of charge as long as they have the television plugged in. The actors in television projects do not get paid a percentage royalty based on gross ticket sales. Actors on the big screen however do get paid a percentage of the gross ticket sales and this is where the difference comes in for the copyright laws. Those actors on the big screen are being deprived of their funds each time a viewer can watch the movie by downloading it onto the hard drive instead of going to the theater and purchasing the chips. The actors are being robbed of their promised funds every time this happens therefore it is not unreasonable to ask the computer manufacturers to place chips in their machines that will prevent this from happening.

While Internet film piracy isn't as easy as copying audio CD tracks into MP3 form for trading, movie houses are feeling the same pressure as the record industry to protect their products against rampant copyright violations.

And, like top record companies confronted by MP3 distributors, Hollywood's major movie houses are being bombarded by a host of new Internet film companies, each claiming its ideas will deliver online box-office cash in this new computer age. The obstacles for Internet film distribution, however, are formidable. Unlike MP3 music, film converted to the downloadable digital MPEG format can take hours - or even days - to pull from the Internet, depending on the home user's connection speed and other factors. Using a T1 line - the widest Internet pipe available to well-heeled consumers - The New York Times reports that a pirated version of Austin Powers: The Spy Who Shagged Me required seven hours to download. Even for industry experts such as Todd Sawicki, whose Encode.com is developing secure ways for entertainment companies to market their wares online, the future is hazy. "

Hollywood is managing to win some of its cases however, and those cases are setting precedent for future cases. There was one such case in Los Angeles involving a video hacker who was distributing the goods for a profit. The attorneys representing the actors sued and won in a court of law. This stopped a journalist from publishing a software code that the hacker had provided that would allow the downloading of many movies for no charge. The ruling prevented the code from being published thereby blocking access of the free movies to millions of internet users "The case represents one facet of Hollywood's growing dilemma with protecting copyrights on the Internet as millions of users share music, movies and other digital information, often for free via MP3, Napster and other technologies."

It will be cases like this one in the future that will begin to map out a firm decision and agreement when it comes to copyright laws. The cases will be heard and decide don individual merits until enough precedents have been set that the world can take a look at those cases and form a general agreement as to what the law should do about the Internet and the download abilities that it provides. Parents are faced with the dilemma of allowing or not allowing their children to commit copyright infringement as well as setting an example one way or the other themselves.

If one purchases a book and lends it out to someone they should not be prosecuted for violating copyright laws. The person who lends the book has no control over what is going to happen to the book and what it will be used for. In addition the world works in degrees. It is not feasible to prosecute every person who gives away a book after reading it. However, the idea of Internet movie downloads and music downloads have the potential to financially harm the artist who perform and support the work. The Internet reaches millions and therefore downloading works that are copyrighted have the potential to cause great financial harm to the salaries and the overall financial state of the industry.

The fact that courts do not go after and prosecute each person who downloads music is a message to the world that the courts do not believe the person is violating copyright laws, in the technical aspect, even though the court ruling sent a message that it did believe the spirit of the law was being challenged.

The courts often have to rule within the legal aspects of the law bvut they are not able to make decision based on the morality or spirit of the law. In the case of Napster while the court did rule in favor of the prosecution it did not suggest that each person who had used the service be tracked down and prosecuted. This may have been because the courts knew it would be extremely costly to attempt and the recoupment would be minimal by comarision. The court may also have believed that those who used the service were not really intent on breaking laws, they were simply excited to find the music that they wanted and discover it was downloadable. The spirit of the law supports the friend sharing with friends theory though the letter of the law came down on the side of those who brought the suit for copyright infringement. There are many other companies out there that work in similar fashion to Napster. They may be next on the court docket if artists see that those companies begin to get thousands of download activities each day the way Napster was. It all seems to be a matter of degree in deciding whether the rules being broken matter or not.