Re: New Video Educates Students on Illegal File Sharing

[Alan Amesbury <amesbury () OITSEC UMN EDU>]

Brad Judy wrote:

[snip]
> I found this FAQ tidbit interesting:
>
> "Is downloading and uploading music really stealing?
> If it's done without the permission of the copyright holder, it's
> legally no different than walking into a music store, stuffing a CD into
> your pocket, and walking out without paying for it."
>
> I'm not a lawyer, but I'm quite certain that theft from a store and
> online illegal music distribution are entirely different legally.  To
> begin with, the victims are different (unless the RIAA and MPAA have
> started prosecuting shoplifters on behalf of store owners) and the
> applicable laws are different (copyright infringement vs theft).
[snip]

Preface:  I'm not a lawyer, either.  That said...

Although I've not seen this addressed anywhere, I think it's possible
that *downloading* copyrighted material without the copyright holder's
consent may be *legal*.  Copyright typically centers around distribution
of content without the copyright holder's permission.  Someone
downloading content isn't distributing it; the distributer is the one
hosting it.  I note that in all publicized cases I can remember
involving P2P that evidence doesn't center around whether someone
downloads copyrighted material, but whether they're *sharing* that
material.  The media tends to gloss over this, and seems to equate
"sharing" with "downloading."  (Because most P2P apps immediately share
the material they've downloaded, this might be an excusable oversight.)

As evidence supporting this theory, I point to the fact that DMCA
takedown notices usually include things like the IP address *hosting*
the infringing data, not the host *downloading* it.  While I've heard of
people seeking client lists of known P2P hubs, e.g., the eDonkey stuff
that's been going on in Europe lately, I think it's because client
software typically turns around and redistributes downloaded content.
Again, I've not heard of a case where someone downloaded something and,
*without* further distributing it, got in trouble.  Then again, it could
be because someone configuring their client software in that way isn't
exactly low-hanging fruit on the tree of copyright violation.

If enough people run P2P apps configured to not allow redistribution
except to local networks (e.g., to other systems in dorms), it will
probably make prosecution more difficult.  Limiting external download
sources to only those hosts in jurisdictions with "duplication-friendly"
legal systems (such as where allofmp3.com resides), would probably also
help reduce a P2P user's legal exposure considerably, if only by making
them a less attractive target.  I think this is one of the reasons why
the various *AA groups and their ilk are so hot to get organizations
like those represented on EDUCAUSE to purchase those various P2P
monitoring/detection appliances.  (I suspect another is that there may
be some overlap between the set "members of *AA organization" and the
set "investor in company that produces P2P monitoring appliance.")

My expectation is that P2P stuff is going to move further underground,
e.g., we're going to see a LOT more of it encapsulated in SSL and other
security tech.


--
Alan Amesbury
(Not speaking on behalf of the) University of Minnesota