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
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."
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 themself 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.
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)
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. ")
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
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.
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)
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
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.
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)