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Will this avoid p2p legal hassles.

Posted on 2004-09-22
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Last Modified: 2010-04-27


Not sure if this is the right topic:

If a peer 2 peer music application was built, but it only allowed peer 2 peer streaming and not
actually saving to the disk, would this still have the same legal issues as existing
p2p systems ?

Obviously, users could still stream copyright music , but would the developer be seen
as NOT encouraging it, and have no reason to worry about lawsuits.



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Question by:apakian
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by:duz
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apakian -

>would this still have the same legal issues as existing p2p systems ?

I would thing so.

>would the developer be seen as NOT encouraging it, and have no reason to worry about lawsuits

I think they would have to worry about lawsuits particularly if it became popular.

- duz
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by:humeniuk
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The defense that a lot of file sharing entities have used is that they are simply providing a tool and do not condone that tool being used to violate copyright laws.  In the case of Napster (the original), this didn't work, because the files were stored on Napster's hard drives.  In the case of Kazaa, it was successful, because the files are hosted on the users' hard drives.  This is why the recording industry has (successfully) gone after Kazaa users rather than Kazaa itself.  "The recording industry's decision to sue suspected music traders is based on a confusing tangle of court rulings. A pair of federal court decisions in February established that file trading networks like Morpheus and Kazaa are legal but that the recording industry could use the 1998 Digital Millennium Copyright Act to subpoena Internet service providers for the names of suspected music pirates -- without getting a judge to approve the subpoena." (see www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A48299-2004Feb17).  So, the liability rests on whoever is improperly sharing the music.  

However, I'm not sure that relying on that loophole is a good idea.  Kazaa located itself off-shore as an additional layer of protection to stay clear of jurisdictions that take a greater interest in prosecuting them.  You may want to also consider the example of 321 Studios Inc., makers of a program to copy DVD's.  The company put a disclaimer on their software in favor of 'the rights of artists' and noted that "It is against the law to make or distribute reproductions of copyrighted material for most purposes other than your own use".  Nevertheless, they were successfully sued by a number of movie studios as their product was found to be in violation of copyright law (see also www.washingtonpost.com/wp-dyn/articles/A89-2004Feb23.html).  The software was subsequently pulled from store shelves in the U.S. and is no longer supported there.

In summary, the application intellectual property rights remain a bit of a grey area due to ongoing technological evolution.  However, it is clear that with any level of success, you would certainly draw the attention of those with the will and considerable means to make your life difficult.  You may be able to put yourself in a position where you can be fairly comfortable that you are working within the law, but that doesn't stop anyone from suing you and forcing you to expend the time and money required to defend yourself.
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by:apakian
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Yes, but the big point I am making, if the technology was designed so that you could watch a video which is streamed from another
users hard disk ( but it doesnt get stored on your hard disk )  does this still make the technology file sharing... ?

the thing is unlike kazaa , where the file multiplies across the network,, say user 1, has 'spiderman' on his hard disk ( illegally ),
and user 2 connects to him and starts watching it,, user 2 does loses all the data after he disconnects from user 1.

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by:humeniuk
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<< does this still make the technology file sharing... ? >>
It sounds more like internet broadcasting (also a breach of copyright law) than file sharing to me, but that's just my opinion and the only opinion that matters will be the opinion of the presiding judge when the studios sue you.  No matter what you or I or the judge thinks, the studios will absolutely see this as a violation of their intellectual property rights and win or lose, it would be decided in court.
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by:apakian
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if the user decides to stream copyright material, then yes he is liable. I am talking more from the point
of the developer:

a) the content is not on the developers harddisk/servers, it is on the users
b) the content is shared intra-users but only in streaming mode.

Im enquiring if i'm in a napster situation, kazaa, or i've done enough , so that the design of
my software is not stepping on anyones toes, and if it is, then in no way am i promoting
it through my service..

geez. Christ, the net itself is peer2peer, if your going to hold claims against software developers, why
not go back and sue kahn and postel ( all due respect if the spelling is wrong ).
Or go sue maxtor, for making hard disks, which are now used to store ripped dvd's.
I know I'm totally off the TA here, but I can't believe i'm considering the legal ramifications
and safeguarding against getting sued, as part of my coding... the whole thing is fckued up !.



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by:humeniuk
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From a standpoint of liability, you're right, the user streaming copyrighted material would be liable and the developer wouldn't be, but you're forgetting the third entity - the distributor as in the 321 Studios example given above.  In that case, the company  was distributing a product that could be used for illegal activities and they were found to be in breach of copyright law.  That case is different from the one you have proposed, though, because that one hinged on the fact that the software could break anti-copy encryption on the DVD.

In your example, you're much closer to the Kazaa example and thus far they haven't been able to get any convictions on Kazaa, so they're going after the users.  Nevertheless, I don't think anyone should proceed with this sort of project without the advice of a good lawyer (or three).  And I still feel it is important to note that being technically on the right side of the law and in a good position to win any lawsuit doesn't stop anyone from suing you and forcing you to spend a lot of time and money defending yourself.  In a time-honored business tradition, if they can put you out of business by out-spending you in the courts, they don't really have to be right, do they?

You're right, though, that the situation is somewhat messed up.  Personally, I've been on both sides of the intellectual property situation and believe that copyright law is flawed and needs to be reformed.  You mentioned suing Maxtor for making hard drives, but that's not so far-fetched.  In Canada (and other countries), we already pay a surcharge on blank media that we buy (audio cassettes, cd's, dvd's - basically any storage media that can be used to duplicate copyrighted audio or video), which is paid to the entertainment industry.  So far as I know, this has not been extended to hard drives, but is that so far fetched?
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by:apakian
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But what is the specific feature of kazaa or napster the makes it different to say icq...

with icq, i can connect to another user and send him a file.. what defines file sharing and what
doesnt... if your going to say icq is a messaging service that so happens to have filesharing,
then I would have to ask: why wouldnt kazaa or whomever, release an IM platform, that
so happens to xmit files to one another.....

Is there a specific description of what kazaa is, enough that is's obvious how it differs from
almost any other software ever invented that allows person to person file swapping,,
including instant messaging, smtp, bbs's, forums with fileupload facilities, usenet,
hmm internet explorer,netscape,, the list goes on...

maybe i'm missing something...
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humeniuk earned 175 total points
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That's a good point.  You can share files with ICQ, MSN Messenger, AIM, etc, however that isn't their primary function.  Kazaa's primary function is to provide a file-sharing service (this is the only difference I can see between it and the examples you gave), whereas ICQ's purpose is to provide an instant messenging service.  And don't forget who owns ICQ: AOL, which is owned by Time-Warner, which also owns Warner Bros. and numerous other entertainment companies.
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by:apakian
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it's a very fine line,, and its reach is too broad. If a law is passed outlawing p2p, I don't see any
point developing anything other than word processors :-)
Without making developers sound arrogant, the powers that be, are biting the hand that feeds then.
all developers + webmasters around the world should go on strike, ( okay i need some sleep, im
going on a bit aren't I ) ...

It's probably best i do some more research ( and no, i wont pay a lawyer to give me the answer,
they're part of the problem ).

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by:humeniuk
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It sounds like we're on the same page.  Good luck with the project.

As mentioned in your other thread, your software sounds interesting.  If it's something you are willing to talk about, I'd love to hear more.  My email address is in my profile.
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by:apakian
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my friends and I have been beta-testing it and looks good so far,
I'll gladly send you some info ( especially with what happens with
this p2p nonsence ).. Probably in the next week or so..

thanks heaps.

ashod
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by:humeniuk
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Thanks.  I look forward to it.
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by:humeniuk
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You may want to take a look at this article: www.wired.com/wired/archive/12.10/start.html?pg=5.  

It addresses some of the points you raised above in reference to the Induce Act, legislation that has been introduced by Orrin Hatch that "could criminalize any technology that facilitates copyright infringement - from iPods to emaill apps.  In theory, Hatch says, only "bad guys" - mostly file-swapping services like Grokster - would be subject to lawsuits and prosecution. In reality, the law would harm the tech industry and leave software pirates unscathed."

All the more reason to tread carefully.
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by:apakian
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your freaking me out...  i was half way through reading when you sent this...
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:)
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