Cybertelecom Federal Internet Law & Policy An Educational Project

Copyright: P2P Music

Since huge quantities of information can be computer-digitalized and transmitted, music researchers could, for example, swap records over the Net with "essentially perfect fidelity." So much for record stores (in present form). -- Stewart Brand, Spacewar: Fanatic Life and Symbolic Death Among the Computer Bums, Rolling Stone (Dec. 1972)

"Peer-to-peer (P2P) file-sharing allows users to share files online through an informal network of computers running the same software. File-sharing can give you access to a wealth of information, but it also has a number of risks. You could download copyright-protected material, pornography, or viruses without meaning to. Or you could mistakenly allow other people to copy files you don’t mean to share.

P2P has presented a challenge to the DMCA. The DMCA creates a mechanism to protect copyright owners through "Notice and Takedown." Copyright owners provide ISPs notice of copyright material hosted on their service, and the ISPs take it down. The problem P2P creates is that the material is hosted not on the ISPs servers but on the subscribers computers. ISPs cannot very well take down what they do not control. One option ISPs apparently consider in order to "take down" the content is to terminate the account of the subscriber. Copyright owners have been taking advantage of DMCA subpoenas in order to identify P2P users.

"If you’re considering P2P file-sharing:

• Set up the file-sharing software very carefully, checking the proper settings so that other users won’t have access to your private files.
• Consider installing anti-spyware software. Some file-sharing programs install spyware that can monitor your browsing habits and send that data to third parties.
• You may want to adjust the file-sharing program’s controls so that it is not connected to the P2P network all the time. Some file-sharing programs automatically open every time you turn on your computer.
• Use anti-virus software and a firewall, and keep them up to date. Files you download using a P2P network could be mislabeled, hiding a virus or other unwanted content."

Derived From: OnGuard Online

P2P has become a Network Neutrality issue. AT&T is suggesting that it will start filter its internet traffic in order to filter out infringing copyright material (putting themselves in the position of determining what is infringing and what is not). See also Blocking P2P. A number of members of Congress who are big copyright advocates, such as Rep. Mary Bono Mack, support this proposition.

Federal Activity

• Hearings
  • Penny Nance: Online Pornography: Closing the Doors on Pervasive Smut. (criticizing P2P networks) Subcommittee on Commerce, Trade, and Consumer Protection May 6, 2004 10:00 AM (note - in July 2005 Penny Nance was hired by the FCC to the Office of Strategic Planning and Policy Analysis)
  • Written Testimony of Norbert W. Dunkel and Rob Bird, before the House Subcomm. on Courts, the Internet, and Intellectual Property, of the Comm. on the Judiciary, 107th Cong. Sept. 22, 2005
• Federal Law Enforcement Announces Operation D-Elite, Crackdown on P2P Piracy Network: First Criminal Enforcement Against BitTorrent Network Users (May 25, 2005), DOJ 6/3/2005
• Penny Nance, Ernie Allen & Chuck Canterbury - A copyright case has implications for tracking down child-porn brokers. Feb 2005
• Penny Nancy was hired by the Federal Communications Commission, Office of Strategic Planning.
• Corona, California Man Faces Federal Criminal Charges for Uploading 'Finding Neverland' to the Internet (March 4, 2004),, DOJ 3/9/2005
• FTC Issues Report on Peer-to-Peer File Sharing, FTC 6/29/2005
• Personal Use Policies and “File Sharing” Technology, M-04-26 White House 10/5/2004 (" A type of file sharing known as Peer-to-Peer (P2P) refers to any software or system allowing individual users of the Internet to connect to each other and trade files. These systems are usually highly decentralized and are designed to facilitate connections between persons who are looking for certain types of files. While there are many appropriate uses of this technology, a number of studies show, the vast majority of files traded on P2P networks are copyrighted music files and pornography. Data also suggests P2P is a common avenue for the spread of computer viruses within IT systems. ")
• FTC to Host Two-day Peer-to-peer File-sharing Workshop (Dec. 15 & 16), FTC 10/19/2004
• FTC Risks of Online File Sharing Topic of FTC Consumer Alert (8/1/03) [TXT]

Statistics

Caselaw

• A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), aff'd, 284 F.3d 1091 (9th Cir. 2002): Napster's P2P music network permitted users to share music directly with each other. Napster itself did not copy or retain copies of the content; it merely acted as a central directory permitting the peers to find each other. This innovative content distribution network caught the eye of the music industry which came down on it with a not so innovative sledge hammer. The federal court system rejected Napster's arguments that it was not involved in copying, that the copying was fair use, and that it was not commercial. The court noted that the activity of the users downloading the content and alleviating users of the need to purchase the work made it commercial. Napster, while not involved in the copying, induced and contributed to others' infringing activity and therefore Napster was liable for contributory infringement.
• Recording Indus. Ass'n of America v. Diamond Multimedia Sys. , Inc., 180 F.3d 1072, 1079 (9th Cir. 1999). Court found that the portable MP3 player such as the RIO were engaged in legitimate space shifting of users existing files - in other words, owning a copy of the music, it is permissible fair use for the user to enjoy the music on the device of choice.
• MGM Studios v. Grokster, 259 FSupp2d 1029 (CDCa 2003) cert granted before S.Ct. ("holding Grokster not contributorily liable for copyright infringement by users of its P2P file sharing program)
• MGM STUDIOS INC., ET AL.v.GROKSTER, LTD., ET AL.. Decided 06/27/2005, S.Ct. 6/29/2005
• Oral Argument March 29, 2005
• Petitioner's brief
• EFF website
• Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. Transcript, S.Ct. 12:00:00 AM
• Brief of Kids First Coalition (aka Penny Nance recently hired by the FCC OSP), Christian Coalition of America, Concerned Women for America ... in support of Petitioners
• News
• The Grokster Decision: Lawyers Tussle Over Active Inducement’s Meaning, ACM 7/22/2005
• Grokster and the wisdom of Solomon, CNET 7/5/2005
• Supreme Court Says Grokster Can be Held Liable, CDT 6/29/2005
• Supreme Court Ruling Will Chill Technology Innovation, EFF 6/29/2005
• Internet sharing is dealt a blow, IHT 6/29/2005
• Grokster Ruling: What's Next?, NPR 6/29/2005
• Sharing Culture Likely to Pause but Not Wither, PK 6/29/2005
• The Real Lesson of Grokster, Wired 6/29/2005
• Grokster transcript PDF, Public Knowledge 4/8/2005
• Internet Music Theft Likely To Survive Supreme Court Decision, InternetWeek 4/1/2005
• Court mulls file-sharing future, BBC 4/1/2005
• Supreme Court to Weigh In on File Sharing, Wash Post 3/29/2005
• File-sharing showdown at Supreme Court, MSNBC 3/29/2005
• File-sharing case worries Indie artists, USA Today 3/25/2005
• Grokster case may have large impact beyond P-to-P, Standard 3/25/2005
• High Court orders ISPs to name file-sharers, Register 3/11/2005
• As File Sharing Nears High Court, Net Specialists Worry, NYT 3/18/2005
• P2P companies ask high court for help, CNET 3/2/2005
• MGM v Grokster Litigation Documents, LOC 2/1/2005
• U.S. Asks High Court to Curb File Swapping, Wash Post 2/1/2005
• Maverick Recording Co. v. Hall, No. 06-C-216-C (WDWi Jan 31, 2007) (imposing statutory minimum penalty on P2P music downloader of 9 song of $750 per song, plus attorneys fees, for a total of $6750)
• In re Aimster Copyright Litigation, 252 F.Supp.2d 634 (N.D.Ill. 2002): Even though it appeared that MP3.com had taken care to establish only authorized fair use copying, the Court did not agree. The Court concluded that MP3.com was purchasing copies of content (one type of copyright) but then retransmiting that content in a different format over a different medium, and doing so for commercial gain. MP3.com was hit with substantial statutory damages.
• UMG Recordings, Inc. v. MP3.com, Inc, 92 F.Supp.2d 349 (SDNY 2000): MP3.com's dot com business model was to make individual's libraries of CD available online anywhere that individual might be. MP3.com purchased a large library of CD and converted them into MP3 format. Individuals could access specific CDs that they had established proof that they had purchased. Thus, having established that I was a true owner of a Billy Holiday CD, I could then listen to that CD where ever I might be on the net through the MP3.com service. As creative of a service as it was, and irregardless of the fact that individuals could only hear music from MP3.com that they already proved that they own, the court still found that MP3.com liable for copyright infringement.

Papers

• USG
• FBI Peer to Peer Network Risks
• ONGuard P2P
• Dmytro Karamshuk, Nishanth Sastry, Jigna Chandaria, Andy Secker, CD-Gain: Measuring Traffic Gains from Peer-Assisted Content Delivery for Long Duration Video on Demand Content, Kings College London
• Gellis, Catherine R., Copysense and Sensibility: How the Wiretap Act Forbids Universities from Using P2P Monitoring Tools . Boston University Journal of Science & Technology Law, Vol. 12, p. 340, 2006. Available at SSRN: http://ssrn.com/abstract=968700
• Michael A. Einhorn, Bill Rosenblatt, Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright Problems, CATO (Jan. 2005)
• Niva Elkin-Koren, Making Technology Visible: Liability of Internet Service Providers for Peer-to-Peer Traffic, 9 N.Y.UJ. LEGIS. & PUB. POL’Y. 15 (2005-2006)
• Jessica Litman, Sharing and Stealing, April 2004
• Simon Byers, Lorrie Cranor, Eric Cronin, Dave Kormann, Patrick McDaniel, Analysis of Security Vulnerabilities in the Movie Production and Distribution Process, TPRC 9/13/03
• Adam Marcus The Celestial Jukebox Revisited: Best Practices and Copyright Law Revisions for Subscription-Based Online Music Services, TPRC 9/13/03
• James S. Humphrey, Debating the Proposed Peer- to-Peer Piracy Prevention Act: Should Copyright Owners be Permitted to Disrupt Illegal File Trading Over Peer-to-Peer Networks?,, NC JOLT 5/14/03
• CAIDA:  Internet Measurement: Myths about Internet data (5 dec 01) Myth: US Govt can stop file sharing
• Electronic Frontier Foundation, Universities Should Resist Network Monitoring Demands
• Letter from Electronic Privacy Information Center, P2P Monitoring to Colleges and Universities (Nov. 6, 2002)
• Peter Biddle, Paul England, Marcus Peinado, and Bryan Willman, The Darknet and the Future of Content Distribution, 2002, http://crypto.stanford.edu/DRM2002/darknet5.doc

Links

• Distributed Computing Industry Association
• DRM Watch
• EFF
• Free Press
• Internet Research Task Force (IETF & ISOC) Peer-to-Peer
• Lionshare : Penn State
• P2P United
• Peers2Peers.org The Teen's Guide to Downloading Music Online, and Talking to Your Children About downloading Music Online - A Parent's Guide - featured on the Today Show
• RIAA
• Tracking the Trackers
• Wiredsafety.org
• Rights Enforcement Companies
• BayTSP
• NetEnforcers

Webcasts & Podcasts

• WEBCAST: The Grokster Decision: Senators Tell Tech. Industry To Do More To Curb Infringement, ACM 7/29/2005
• Internet Caucus Interpreting Grokster: Protecting Copyright in the the Age of Peer-to-Peer July 2005
• Forum on Technology and Information: Peer-to-Peer (P2P) Networks Going Legit: What Challenges Face P2P Networks as They Try to Enter the Mainstream February 26, 2004 Real Audio
• Facing the Music: Can Creators Get Paid for P2P File Sharing? CFP 2004
• MGM v. Grokster Oral Argument

News