LEGAL ISSUES IN P2P SHARING AND BIT TORRENT SUCHITRA BAI LEGAL COUNSEL ALTACIT GLOBAL CHENNAI
MEANING OF PEER A peer is one instance of a BitTorrent client running on a computer on the Internet to which other clients connect and transfer data. Usually a peer does not have the complete file, but only parts of it.
MEANING OF SEED A seeder is a peer that has a complete copy of the torrent and still offers it for upload. The more seeders there are, the better the chances of getting a higher download speed. If the seeder seeds the whole copy of the download they should get faster downloads.
MEANING OF PEER-TO-PEER PEER-TO-PEER (P2P) systems are which allows only mutually trusted peers to participate. This is achieved by using a central server or Direct connect hubs to authenticate clients. Alternatively, users can exchange passwords or cryptographic keys with friends to form a decentralized network. Peer-to-peer systems are often called friend-to-friend (F2F) or group-based systems. Friend-to-friend systems only allow connections between users who know one another. Group-based networks allow any user to connect to any other, and thus they cannot grow in size without compromising their users' privacy.
WHAT IS FILE SHARING File sharing is the practice of distributing or providing access to digitally stored information, such as computer programs, multi-media (audio, video), documents or electronic books. It may be implemented in a variety of storage, transmission, and distribution models. Common methods are manual sharing using removable media, centralized computer file server installations on computer networks, World Wide Web-based hyperlinked documents, and the use of distributed peer-to-peer (P2P) networking.
IS FILE SHARING ILLEGAL File sharing is not of itself illegal. However, the increasing popularity of the MP3 music format in the late 1990s led to the release and growth of Napster and other software that aided the sharing of electronic files. This in practice led to a huge growth in illegal file sharing, the sharing of copyright protected files without permission.
Is P2P per se unlawful P2P is not per se unlawful Generally, there will be no infringement of copyright in merely using P2P software. This is because the software is in most cases made available freely by the owners of copyright in circumstances giving rise to an implied license. Of course, if this is not the case then mere use of the software without license may infringe copyright in the software. Nor will the use of P2P to share files involve a copyright infringement where the owner of copyright in the material being shared has consented to this. For example, academics and students may use P2P to share their work in order that others can provide critical comment. A lecturer might use P2P to make material available to his or her students. It is the use of P2P to share or trade copyright works without the consent of license of the copyright owner that has the potential to give rise to an action for infringement of copyright. The reason for this – as will be discussed in more details below – is that merely making copyright material available on a server in a form in which it can be accessed by others will, in most cases, amount to an exercise of the copyright owner’s right of “communication to the public” as well as an exercise of the reproduction right (ie in making the electronic copy which is communicated to others)
Ohio v. Perry, 83 Ohio St. 3d 41, 697 N.E.2d 624 (Ohio 1998). Uploading is copying. Downloading is also copying. Unauthorized copying is an unauthorized use that is governed by the copyright laws. Therefore, unauthorized uploading and unauthorized downloading are unauthorized uses governed by the copyright laws
DO’S OF P2P Technology has made digital copying easier than ever. But just because advances in technology make it possible to copy music doesn’t mean it’s legal to do so. Here are tips from some record labels on how to enjoy the music while respecting rights of others in the digital world. Stick with these, and you’ll be doing right by the people who created the music. Internet Copying It’s okay to download music from sites authorized by the owners of the copyrighted music, whether or not such sites charge a fee.
DON’T’S OF P2P It’s never okay to download unauthorized music from pirate sites (web or FTP) or peer-to-peer systems. Examples of peer-to-peer systems making unauthorized music available for download include: Kazaa, Grokster, WinMX, LimeWire, Bearshare, Aimster, Morpheus, and Gnutella. It’s never okay to make unauthorized copies of music available to others (that is, uploading music) on peer-to-peer systems. It’s okay to copy music onto an analog cassette, but not for commercial purposes. It’s also okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes. Beyond that, there’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as: The copy is made from an authorized original CD that you legitimately own The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying. The owners of copyrighted music have the right to use protection technology to allow or prevent copying. Remember, it’s never okay to sell or make commercial use of a copy that you make.
WHAT IS BIT TORRENT AND HOW DOES IT WORK ? BitTorrent is a peer-to-peer sharing protocol used for distributing large amounts of data. BitTorrent protocol allows users to distribute large amounts of data without the heavy demands on their computers that would be needed for standard Internet hosting. A standard host's servers can easily be brought to a halt if high levels of simultaneous data flow are reached. The protocol works as an alternative data distribution method that makes even small computers (e.g. mobile phones) with low bandwidth capable of participating in large data transfers. First, a user playing the role of file-provider makes a file available to the network. This first user's file is called a seed and its availability on the network allows other users, called peers, to connect and begin to download the seed file. As new peers connect to the network and request the same file, their computer receives a different piece of the data from the seed. Once multiple peers have multiple pieces of the seed, BitTorrent allows each to become a source for that portion of the file. The effect of this is to take on a small part of the task and relieve the initial user, distributing the file download task among the seed and many peers. With BitTorrent, no one computer needs to supply data in quantities which could jeopardize the task by overwhelming all resources, yet the same final result—each peer eventually receiving the entire file—is still reached. After the file is successfully and completely downloaded by a given peer, the peer is able to shift roles and become an additional seed, helping the remaining peers to receive the entire file. This eventual shift from peers to seeders determines the overall 'health' of the file (as determined by the number of times a file is available in its complete form). This distributed nature of BitTorrent leads to a flood like spreading of a file throughout peers. As more peers join the swarm, the likelihood of a successful download increases. Relative to standard Internet hosting, this provides a significant reduction in the original distributor's hardware and bandwidth resource costs. It also provides redundancy against system problems, reduces dependence on the original distributor and provides a source for the file which is generally temporary and therefore harder to trace than when provided by the enduring availability of a host in standard file distribution techniques.
WHAT CONSTITUTES INFRINGEMENT MGM et al v. Grokster et. Al. "One who distributes a device with the object of promoting its use to infringe copyright...is liable for the resulting acts of infringement by third parties using the device". This was the holding of the United States Supreme Court in a landmark decisions handed on Monday, June 27 in the case of Is the distributor of file-sharing software, which is used for the unauthorized sharing of copyright-protected files, liable for the copyright infringement resulting from such act? The United States Supreme Court answered: Yes, if such distributor took active steps to encourage the infringing use.
A&M Records, Inc. v. Napster, Inc., In 2000, A&M Recordsand several other recording companies sued Napster (A&M Records, Inc. v. Napster, Inc.) for contributory and vicarious copyright infringement under the US Digital Millennium Copyright Act (DMCA). The music industry made the following claims against Napster: a. That its users were directly infringing the plaintiff's copyright; b. That Napster was liable for contributory infringement of the plaintiff's copyright; and c. That Napster was liable for vicarious infringement of the plaintiff's copyright. Napster lost the case in the District Court and appealed to the U.S. Court of Appeals for the Ninth Circuit. Although the Ninth Circuit found that Napster was capable of commercially significant non-infringing uses, it affirmed the District Court's decision. On remand, the District Court ordered Napster to monitor the activities of its network and to block access to infringing material when notified of that material's location. Napster was unable to do this, and so shut down its service in July 2001. Napster finally declared itself bankrupt in 2002 and sold its assets.
MGM et al v. Grokster et. Al Twenty-eight movie studios, music companies and other copyright holders, headed by MGM studios, filed suit against Grokster and Streamcast for copyright infringement. Grokster and Streamcast distributed file-sharing software which was used for sharing many copyright-protected music and movie files via peer-to-peer networks. MGM et. al argued that Grokster and Streamcast are liable for the copyright infringement carried out by the users of their software under a secondary liability theory of "contributory infringement". They moved for damages and an injunction. The US Supreme Court held on Monday June 27, 2005 that Grokster and Streamcast are liable for copyright infringement caused by the users of the software because they distributed the software with the object of promoting its use for infringing copyright. In doing so they induced the users to infringe the rights.
REMEDIES FOR INFRINGEMENT CIVIL REMEDIES A. Injunction B. Damages or Accounts of Profit. C. Delivery of Infringing copies and damages for conversion.
CONTD… CRIMINAL REMEDIES A. Imprisonment of Accused. B. Imposition of fine or both. C. Seizure of Infringing copies and delivery-up of infringing copies.