Professional Documents
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I. What this is, and who should read it II. Copyright Basics and the Intersection
with P2P File-sharing
The future of peer-to-peer file-sharing and
related technologies is entwined, for better or The nature of digital file-sharing technology
worse, with copyright law. If the early legal inevitably implicates copyright law. First, since
skirmishes yield any lesson for P2P developers, every digital file is “fixed” for purposes of
it is that an appreciation of the legal copyright law (whether on a hard drive, CD, or
environment should be part of any development merely in RAM), the files being shared
effort from the beginning, rather than bolted on generally qualify as copyrighted works. Second,
at the end. the transmission of a file from one person to
another results in a reproduction, a distribution,
This piece is meant as a general explanation
and possibly a public performance (in the world
of the U.S. copyright law principles most
of copyright law, “public performance” includes
relevant to P2P file-sharing technologies. It is
the act of transmitting a copyrighted work to the
aimed primarily at:
public). To a copyright lawyer, every
• Developers of core P2P file-sharing unauthorized reproduction, distribution, and
technology, such as the underlying public performance requires an explanation, and
protocols, platform tools, and specific client thus file-sharing systems seem suspicious from
implementations; and the outset.
• Developers of ancillary services that depend A. The end-users: “direct” infringement.
upon or add value to P2P file-sharing
For the end-users who are sharing files, the
networks, such as providers of search,
question becomes whether the reproductions,
security, metadata aggregation, and other
distributions, and public performances are
services.
authorized by the copyright owner or otherwise
This paper is aimed not at giving you all the permitted under copyright law (as “fair use” for
answers, but rather at allowing you to recognize example). If not, the end-users are what
the right questions to ask.1 copyright lawyers call “direct infringers”—they
have directly violated one or more of the
What this is not: The following discussion
focuses only on U.S. copyright law. While non- copyright owner’s exclusive rights.
copyright principles may also be mentioned, this In a widely-used public peer-to-peer file-
discussion does not attempt to examine other sharing environment, it is a virtual certainty that
legal principles that might apply to P2P file- at least some end-users are engaged in infringing
sharing, including patent, trademark, trade activity (unless specific technical measures are
secret, or unfair competition. Nothing contained taken to prevent this, like permitting only the
herein constitutes legal advice—please discuss sharing of files that have been cryptographically
your individual situation with your own marked as “authorized”).
attorney.
B. The P2P tool maker: “contributory”
and “vicarious” infringement
But what does this have to do with those
who develop and distribute peer-to-peer file-
sharing tools? After all, in a pure peer-to-peer
1
A longer version of this paper, updated from time to file-sharing network, the developer of the file-
time, is available at www.eff.org.
sharing tool has no direct involvement in the “site and facilities” that make the direct
discovery, copying or transmission of the files infringement possible can be enough.
being shared.
2. Vicarious Infringement
Copyright law, however, sometimes reaches
Vicarious infringement is derived from the
beyond the direct infringer to those who were
same legal principle that holds an employer
only indirectly involved. As in many other areas
responsible for the actions of its employees. A
of the law (think of the “wheel man” in a stick
person will be liable for vicarious infringement
up, or supplying a gun to someone you know is
if he has the right and ability to supervise the
going to commit a crime), copyright law will
direct infringer and also has a direct financial
sometimes hold one individual accountable for
interest in his activities. Thus, in order to prevail
the actions of another. So, for example, if a
on a vicarious infringement theory, a copyright
swapmeet owner rents space to a vendor with
owner must prove each of the following:
the knowledge that the vendor sells counterfeit
CDs, the swapmeet owner can be held liable for Direct Infringement: There has been a
infringement alongside the vendor. direct infringement by someone.
This indirect, or “secondary,” liability can Right and Ability to Control: The accused
take two distinct forms: contributory and vicarious infringer had the right and ability
vicarious. to control or supervise the underlying direct
infringement. This element does not set a
1. Contributory Infringement
high hurdle. For example, the Napster court
Contributory infringement is similar to found that the ability to terminate user
“aiding and abetting” liability: “one who, with accounts or block user access to the system
knowledge of the infringing activity, induces, was enough to constitute “control.”
causes, or materially contributes to the
Direct Financial Benefit: The accused
infringing conduct of another, may be held liable
vicarious infringer derived a “direct
as a contributory infringer.” In order to prevail
financial benefit” from the underlying direct
on a contributory infringement theory, a
infringement. In applying this rule, however,
copyright owner must prove:
the courts have not insisted that the benefit
Direct Infringement: There has been a be especially “direct” or “financial”—almost
direct infringement by someone. any benefit seems to be enough. For
example, the Napster court found that
Knowledge: The accused contributory
“financial benefit exists where the
infringer knew of the underlying direct
availability of infringing material acts as a
infringement. This element can be satisfied
draw for customers” and the growing user
by showing either that the contributory
base, in turn, makes the company more
infringer actually knew about the infringing
attractive to investors.
activity, or that he reasonably should have
known given all the facts and circumstances. The nature of vicarious infringement
At a minimum, however, the contributory liability creates a strong incentive to monitor the
infringer must have some specific conduct of users. This stems from the fact that
information about infringing activity—the knowledge is not required for vicarious
mere fact that the system is capable of being infringement liability—a person can be a
used for infringement, by itself, is not vicarious infringer even if they are completely
enough. unaware of infringing activity.
Material Contribution: The accused In other words, if you exercise control over
contributory infringer induced, caused, or your users and derive a benefit from their
materially contributed to the underlying activities, you remain ignorant of their conduct
direct infringement. Merely providing the at your own risk.