The legality of file sharing services [LWN.net]

The entertainment industry has been engaging in a long and fierce campaign to make the writing of certain kinds of software illegal. In their view, tools like DeCSS or Elcomsoft's eBook processor are to be outlawed simply because they can be used to violate copyrights. File sharing software has also been targeted by this industry for the same reasons; people can use that software to share copyrighted files. If the RIAA and MPAA have their way, unrestricted file sharing systems would come under the same sort of legal sanctions as DeCSS.

In this arena, however, the industry must work without one of its favorite weapons. File sharing networks just move bits around, they do not actively circumvent any sort of copy protection mechanism. As a result, they are not exposed to the anti-circumvention clauses of the DMCA. So file sharing networks must be fought with traditional copyright law. As last week's ruling in the Grokster et al. case (available in PDF format) shows, the studios are going to have a harder time. File sharing networks, when properly constructed, are legal.

What are the attributes of legal file sharing software? From this ruling, one concludes that such software must (1) have real non-infringing uses, (2) not be based on a central server architecture, and (3) not provide for control over what can or cannot be distributed through the network.

The court was quite clear that the simple potential to infringe copyrights was not enough to condemn the software or the companies distributing it:

Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends. Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights.

Lawful uses of the software would not be enough, however, if the companies were actively involved in the distribution of copyrighted materials. The saving factor for the defendants here was that they do not maintain any sort of central server or index of the files available in the network, and are not involved in actual file transfers.

Users connect to the respective networks, select which files to share, send and receive searches, and download files, all with no material involvement of Defendants. If either Defendant closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.

Just as relevant is the fact that the the defendants had no control over what their users were sharing:

Defendants provide software that communicates across networks that are entirely outside Defendants' control. In the case of Grokster, the network is the proprietary FastTrack network, which is clearly not controlled by Defendant Grokster. In the case of StreamCast, the network is Gnutella, the open-source nature of which apparently places it outside the control of any single entity.

This is a lesson which has been taught by the American courts more than once: control brings liability. If you do not have control over a system, you have a defense against liability for what others do with that system. There is no more convincing way of relinquishing control than by releasing the software under a free license.

The plaintiffs put forward the claim that better control should have been put into the defendants' software. The court did not buy it, however:

The doctrine of vicarious infringement does not contemplate liability based upon the fact that a product could be made such that it is less susceptible to unlawful use, where no control over the user of the product exists.

Current law, in other words, does not require that products be made in such a way that they cannot be used to infringe copyrights. Ed Felten has speculated that the entertainment industry will soon make efforts to change the law. This would be an unsurprising move, to say the least; that is, after all, what the CBDTPA would do. As one LWN commenter pointed out, pressing for that sort of law would break the RIAA's agreement with the BSA, where it said it would not push for further anti-copying measures. Relying on that agreement to hold sounds risky, however; chances are good that there will be new legislative efforts in the near future.

to post comments

Overstatement of entertainment industry view

Posted May 3, 2003 2:13 UTC (Sat) by giraffedata (guest, #1954) [Link] (1 responses)

I think it's a little unfair to say the entertainment industry opposes DECSS and the Elcomsoft product because they can be used to violate copyrights. If that were the case, the industry would also oppose ftp. I think the industry wants those products to be illegal because they can be used to defeat a copy protection mechanism.

I think the industry's opposition to file sharing networks comes from an unrelated place, and applies only to networks that not only can be used to violate copyrights but are in fact widely used to do so.

Overstatement of entertainment industry view

Posted Apr 23, 2005 17:35 UTC (Sat) by EmJay (guest, #29504) [Link]

I am in the process of doing a report for my Eng. 4 class on this topic, and it seems to me that, after scowering through countless webpages and magazine articles, it is a foggy mess, where fault is hard to place on any one group. It does not lie with file-sharing companies, so says the Supreme Court. It certainly doesn't lie with the user downloading the content via the P2P servers, as they were not those who pirated the CD or movie in the first place, merely those who benefited from it. It seems, then, that the most responsiblity must fall with those who originally pirated the music, movies, or games, then made them available via the software. Perhaps someone else can enlighten me if I am wrong. Anyone?