The World of P2P: What is P2P, a Legal Perspective
From a Legal Perspective
The most commonly shared files on such networks are mp3 files of popular music and DivX movie files. This has led many observers, including most media companies and some peer-to-peer advocates, to conclude that these networks pose grave threats to the business models of established media companies. Consequently, peer-to-peer networks have been targeted by industry trade organizations such as the RIAA and MPAA as a potential threat. The Napster service was shut down by an RIAA lawsuit; both groups the RIAA and MPAA spend large amounts of money attempting to lobby lawmakers for legal restrictions. The most extreme manifestation of these efforts to date (as of January, 2003) has been a bill introduced by California Representative Berman, which would grant copyright holders the legal right to break into computer systems believed to be illegally distributing copyrighted material, and to subvert the operation of peer-to-peer networks. The bill was defeated in committee in 2002, but Rep. Berman has indicated that he will reintroduce it during the 2003 sessions.
As attacks from Media companies expand the networks have seemed to adapt at a quick pace and have become technologically more difficult to dismantle. This has caused the users of such systems to become targets . Some have predicted that open networks may give way to closed, encrypted ones where the identity of the sharing party is not known by the requesting party. Other trends towards immunity from media companies seem to be in wireless adhoc networks where each device is connected in a true peer-to-peer sense to those in the immediate vicinity.
While historically P2P file sharing has been used to illegally distribute copyrighted materials (like music, movies, and software), future P2P technologies will certainly evolve and be used to improve the legal distribution of materials.
As it should be obvious by now the problem P2P technologies create to the owner of the content, to the control of the distribution channels and to the limitation of users (consumers) rights is huge, the technology is making holes in the standard ideology that controls the relations between producers and consumers some new models have been proposed (see for example Towards solutions to “the p2p problem” - http://groups.sims.berkeley.edu/pam-p2p/ ).
In 2007 a handful of the wealthiest countries (United States, the European Commission, Japan, Switzerland, Australia, New Zealand, South Korea, Canada, and Mexico) started secretive negotiations toward a treaty-making process to create a new global standard for intellectual property rights enforcement, the Anti-Counterfeiting Trade Agreement (ACTA) initially due to be adopted at the 34th G8 summit in July 2008, has now hoped to be concluded in 2010.
It has been argued that the main purpose of the treaty is to provide safe harbor for service providers so that they may not hesitate to provide information about infringers; this may be used, for instance, to quickly identify and stop infringers once their identities are confirmed by their providers.
Similarly, it provides for criminalization of copyright infringement, granting law enforcement the powers to perform criminal investigation, arrests and pursue criminal citations or prosecution of suspects who may have infringed on copyright.
More pressingly, being an international treaty, it allows for these provisions—usually administered through public legislation and subject to judiciary oversight—to be pushed through via closed negotiations among members of the executive bodies of the signatories, and once it is ratified, using trade incentives and the like to persuade other nations to adopt its terms without much scope for negotiation.
Is it Illegal?
Peer-to-Peer in itself in nothing particularly new. We can say that an FTP transfer or any other one on one transfer is P2P, like an IRC user sending a DCC file to another, or even email, the only thing that can be illegal is the use one can give to a particular tool.
Legal uses of P2P include distributing open or public content, like movies, software distributions (Linux, updates) and even Wikipedia DVDs are found on P2P Networks. It can also be used to bypass censorship, like for instance the way Michael Moore's film 'Sicko' leaked via P2P or as publicity machine to promote products and ideas or even used as a market annalists tool.
However trading copyrighted information without permission is illegal in most countries. You are free to distribute your favorite Linux distribution, videos or pictures you have taken yourself, MP3 files of a local band that gave you permission to post their songs online, maybe even a copy an open source software or book. The view of legality lies foremost on cultural and moral ground and in a globally networked world there is no fixed line you should avoid crossing, one thing is certain most people don't produce restricted content, most view their creations as giving to the global community, so it's mathematically evident that a minority is "protected" by the restrictions imposed on the use and free flow of ideas, concepts and culture in general.
P2P as we will see is not only about files sharing, it is more generally about content/services distribution.
Sharing contents that you have no right to is not theft. It has never been theft anywhere in the world. Anyone who says it is theft is wrong. Sharing content that you do not own (or have the rights to distribute) is copyright infringement. Duplicating a digital good does not reduce the value of the original good, nor does it signify a subtraction of the same from the owner. On the other hand, making that same digital good available to others without a license may have a well understood effect of augmenting the visibility of said product, resulting in free advertisement and discussion about the product, this generally results in the increase of the demand for it, this has been validated in tests done with digital books, music and video releases.
Using the term "piracy" to describe the copyright infringement is a metaphoric heuristic, a public relations stunt from lobbies of big corporations that represent copyright holders or hold the copyright over commercializable cultural goods, as a way to mislead the public and legislators. Leading to practices that directly damage society and culture (see Sonny Bono Copyright Term Extension Act or the Mickey Mouse Protection Act).
The legal battles we are now accustomed to hear about, deal mostly on control and to a lesser degree in rights preservation. Control over the way distribution is archived (who gets what in what way) results in creating artificial scarcity. This deals with money, as there is added value to controlling and restricting access due to format and limitations in time and space.
Content and Indexers
One other distinction that needs to be made is in content distribution (especially one in violation of copyrights) and indexing said content. On how it is indexed and to what goals seems to be important, if for nothing else because copyright holders will prefer to persecute services that can pay for infringing on their rights. But indexing may not constitute an illegal activity at all since no rights are directly affected in some jurisdictions the issue seems to be how open does it promote said infringement and if it constitutes an illegal action by itself, and that can be a point that is extremely hard to make. In any case by 2015 most public bittorrent trackers for instance would openly comply with DMCA requests and implement takedown procedures, even if often complaining that requests at times are too broad going so far as to cover works that the requester has no rights over.
World Intellectual Property Organization (WIPO)
The World Intellectual Property Organization is one of the specialized agencies of the United Nations. WIPO was created in 1967 with the stated purpose "to encourage creative activity, [and] to promote the protection of intellectual property throughout the world". The convention establishing the World Intellectual Property Organization, was signed at Stockholm on July 14, 1967.
In August 2007, the Music industry was rebuffed in Europe on file-sharing identifications, as a court in Offenburg, Germany refused to order ISPs to identify subscribers when asked to by Music Industry who suspected specified accounts were being used for copyright-infringing file-sharing, the refusal was based in the courts understanding that ordering the ISPs to handover the details would be "disproportionate", since the Music Industry representatives had not adequately explained how the actions of the subscribers would constitute "criminally relevant damage" that could be a basis to request access to the data.
This was not an insulate incident in Germany, as also in 2007, Celle chief prosecutor's office used the justification that substantial damage had not been shown to refuse the data request, and does follows the opinion of a European Court of Justice (ECJ) Advocate-General, Juliane Kokott who had published an advice two weeks earlier, backing this stance, as it states that countries whose law restricted the handing over of identifying data to criminal cases were compliant with EU Directives. The produced advice was directed to a Spanish case in which a copyright holders' group wanted subscriber details from ISP Telefonica. The ECJ isn't obliged to follow an Advocate-General's advice, but does so in over three-quarters of cases.
In most European countries, copyright infringement is only a criminal offense when conducted on a commercial scale. This distinction is important because public funds are not directed into investigating and persecuting personal and most often private copyright violations with limited economic impact.
On June 12 2007 the Société des Producteurs de Phonogrammes en France (SPPF - http://www.sppf.com/ ), an entity that represents the legal interests and collects copyright revenue in behalf of independent French audio creations, have publicly announced that they had launched a civil action on the Paris Court of First Instance requesting a court order to terminate the distribution and function of Morpheus (published by Streamcast), Azureus and demanding compensation for monetary losses. In 18 September 2007 a similar action was made against Shareaza and in 20 December 2007 the SPPF announced a new action this time against Limewire. All of this legal actions seem to have as a base an amendment done to the national copyright law that stipulates that civil action can taken against software creators/publishers that do not take steps in preventing users from accessing illegal content.
Federation Against Copyright Theft (FACT)
The FACT is a trade organization in the United Kingdom established to represent the interests of the its members in the film and broadcasting business on copyright and trademark issues. Established in 1983, FACT works with law enforcement agencies on copyright-infringement issues.
FACT has produced several adverts which have appeared at the beginning of videos and DVDs released in the UK, as well as trailers shown before films in cinemas. While operating with the same function that the Motion Picture Association of America (MPAA), FACT has avoided public outcry by focusing most o its actions in targeting serious and organized crime involving copyright-infringement.
In an interesting demonstration of cross-border mutual support between similar business organizations, in 2008, FACT helped the MPAA in a sting operation against streaming links site SurfTheChannel. The MPAA not only participated in the questioning by bringing their own investigators it was allowed to examine the apprehended equipment and managed to find an United States programmer that worked for the site to testify in the legal proceedings. The programmer was not persecuted in the US, but agreed to pay the MPAA the amount he made for working at SurfTheChannel (see MPAA Agents Expose Alleged Movie Pirates for details).
In July 2009 in Barcelona, Spain. Judge Raul N. García Orejudo declared that “P2P networks, as a mere transmission of data between Internet users, do not violate, in principle, any right protected by Intellectual Property Law,” when dismissing the Sociedad General de Autores y Editores (SGAE) legal action for the closing of the eD2K link site elrincondejesus.com..
The Norway’s Personal Data Act (PDA) makes it mandatory for ISPs in the country to delete all IP address logs on their customers more than three weeks old as it is considered personal information. This is a huge step forward in personal data protection laws but it also will make the work of "pirate-hunters" more dificult. The Simonsen law firm, is an example since it is known by the lawyer Espen Tøndel, figure head on this matters, and for having since 2006 (now terminated), a temporary license from Norway’s data protection office to monitor suspected IP addresses without legal supervision.
Under US law "the Betamax decision" (Sony Corp. of America v. Universal City Studios, Inc.), case holds that copying "technologies" are not inherently illegal, if substantial non-infringing use can be made of them. This decision, predating the widespread use of the Internet applies to most data networks, including peer-to-peer networks, since legal distribution of some files can be performed. These non-infringing uses include sending open source software, creative commons works and works in the public domain. Other jurisdictions tend to view the situation in somewhat similar ways.
The US is also a signatory of the WIPO treaties, treaties that were partially responsible for the creation and adoption of the Digital Millennium Copyright Act (DMCA).
As stated in US Copyright Law, one must be keep in mind the provisions for fair use, licensing, copyright misuses and the statute of limitations.
MGM v. Grokster
Recording Industry Association of America (RIAA)
The RIAA and the labels took an aggressive stance as soon as online music file sharing became popular. They won an early victory in 2001 by shutting down the seminal music-sharing service Napster.
The site was an easy target because Napster physically maintained the computer servers where illegal music files, typically in high-fidelity, compressed, download-friendly MP3 format, were stored. [With P2P networks, the files are stored on individual user computers; special software lets consumers "see" the files and download them onto their own hard drives.]
The Recording Industry Association of America (RIAA) ( http://www.riaa.com/ ) is the trade group that represents the U.S. recording industry. The RIAA receives funding from the four of the major music groups EMI, Warner, Sony BMG and Universal and hundreds of small independent labels.
Motion Picture Association of America (MPAA)
The MPAA is an American trade association that represents six biggest Hollywood studios. It was founded in 1922 as the Motion Picture Producers and Distributors of America (MPPDA). It focus in advancing the business interests of its members and administers the MPAA film rating system.
In the early 1980s, the Association opposed the videocassette recorder (VCR) on copyright grounds. In a 1982 congressional hearing, Valenti decried the "savagery and the ravages of this machine" and compared its effect on the film industry and the American public to the Boston Strangler.
The MPAA acts as a lobbies for stricter legislation in regards to copyright safeguards, protection extensions and sanctions, and actively pursues copyright infringement, including fighting against sharing copyrighted works via peer-to-peer file-sharing networks, legally and in technologically disruptive ways.
The MPAA has promoted a variety of publicity campaigns designed to increase public awareness about copyright infringement, including Who Makes Movies?; You can click, but you can't hide; and You Wouldn't Steal a Car, a 2004 advertisement appearing before program content on many DVDs.
The MPAA British counterpart is the Federation Against Copyright Theft (FACT).
Canada has a levy on blank audio recording media, created on March 19, 1998, by the adoption of the new federal copyright legislation. Canada introduced this levy regarding the private copying of sound recordings, other states that share a similar copyright regime include most of the G-7 and European Union members. In depth information regarding the levy may be found in the Canadian copyright levy on blank audio recording media FAQ ( http://neil.eton.ca/copylevy.shtml ).
With borders and close ties to it neighbor, Canada as historically been less prone to serve corporations interests and has a policy that contrasts in its social aspects with any other country in the American Continent. The reality is that Canada has been highly influenced and even pressured (economically and politically) by its strongest neighbor, the USA, to comply with its legal, social and economic evolution. In recent time (November 2007) the government of Canada has attempted to push for the adoption of a DMCA-modeled copyright law, so as to comply with the WIPO treaties the country signed in 1997 in a similar move to the USA, this has resulted in a popular outcry against the legislation and will probably result in it's alteration. The visibility of this last attempt was due to efforts of Dr. Michael Geist, a law professor at the University of Ottawa considered an expert in copyright and the Internet, that was afraid that law would copy the worst aspects of the U.S. Digital Millennium Copyright Act.
Darknets vs Brightnets
Due the refusal to legislate in accordance with the public needs and wants. By adding extensions of copyrights (US, UK) and by actively promoting the promulgating laws similar to the DMCA in other countries a monoculture is created where a virtual monopoly on cultural goods is created, generating something of a cultural imperialism.
This reality promotes the population to move its support for transparent distribution systems (brightnets) to more closed system (darknets), that will increasingly depend on social connections to get into, like the hold speakeasy bars that popped up during the prohibition, legislating against the people once more will prove to be a failure.
A P2P brightnet for content distribution,where no one breaks the law, so no one need hide in the dark, can only be feasible if built around owner-free media/system or by being as heavily controlled, owned media/system, as the old centralized system. This probably around a centralized entity that should guarantee control and manage the content, maybe even requiring the use of some DRM sheme, an overall failed system.
This types of networks were already tested and failed, since content is also information, the need for privacy or lack of it on an open system will always create generate a more layered system that will ultimately degenerate in a darknet to survive legal actions.