Arista Records LLC et al v. Lime Wire LLC et al

Filing 547

DECLARATION of Susan Traub Boyd in Support re: 533 MOTION in Limine to Preclude Specified Categories of Evidence and Argument.. Document filed by Arista Music, fka BMG Music, Arista Records LLC, Atlantic Recording Corporation, Capitol Records, Inc., Elektra Entertainment Group Inc., Interscope Records, Laface Records LLC, Motown Record Company, L.P., Priority Records LLC, Sony Music Entertainment, fka Sony BMG Music Entertainment, UMG Recordings, Inc., Virgin Records America, Inc., Warner Bros. Records Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18)(Boyd, Susan)

Arista Records LLC et al v. Lime Wire LLC et al Doc. 547 Att. 3 EXHIBIT 3 Peer-to-Pear Pile Sharing and Copyright Law after Napstar Page of 11 P2Panalystcorn this article appears with pennission of the author Peer-to-Peer File Sharing after and Copyright Law Napster by Fred von Lohinann Attorney-at-Law and Visiting Rosearther Bateky Center for Law Tccbnolagy What As copyright sharing this is Napster and who should read has already it is the saga illustrates fight the future of peer-to-peer file-abating entwined Ibr better or wont with file- law The like legal broken out with copyright owners targeting not only the makers of thai clients Napstcr and Scour but also companies which provides provide products that rely on or add value to public P2P networks such as web-based search interface for the Onutella network The fight has only just begun to be in place If these early skirmishes yield any lesson tbr timne preibrably file legal strategy needs early at the beginning of development developer rather than bolted investor P2P developers on its that at the end As result if you are interested in peer-to-peer platform tools sharing whcihcr as to or provider of ancillary services such as search services or security its fime bone up on some copyright law basics This piece sharing is meant as It general explanation of the U.S copyright law principles most relevant to P2P file- technologies is aimed primarily at Deelopers of client core P2P tile-shaving technology such as the underlying protocols platlbrm tools and specific implementations that Developers of ancillary services depend upon or add value to P2P file-sharing networks such as providers of 7/120.008 Peer-to-Peer File Sharing and Copyright Law after Napster Page of 11 search security seeking meradata to aggregation and other services eopsntLht tilveswrs evaluate the potential oaks oociated with the various ventures listed above iiC tdO\ iflLL iiSkUSiOU is 1cu uS CilC uS I3Suc flhitUli ft 51 31R1 bus CciStOliiil ly abases oer some 511 nuh law aibrie .i is nuau es Aj die or leve SlU no Si gri my Vim the ttns\\ era byt rather at \\hat that this may arise under not he discussion focures od on U.S eopvnnht law and nonI law Whtle iiomeupyrght prine plea may also be mentioned principles that does this not address any discussion does issues lit attempt or un lair to examine other legal might apply to P2I filesharing adviee--please including iseuss patent trademark individual trade secret with competition Nothing contained attorney herein constitutes legal your situation your own Copyright Basics and the Intersection with P2P Filesharing Copyright of in lass applies ta virtually evely as lbrni olcxprcssion thai can tape be captured hard drive or to use the copyright term art fixed in tangible medium such on paper film magnetic all optical media or even merely Copyright plus 70 Songs hooks photographs software and movies are Protection begins from the moment that the expression is fixed vcars RAM familiar and works examples of copyrighted continues for the lifetime of the author During right to this penod copyright and law reserves perform eertuin rights exclusively for to the if owner of the work song and right to including recorded the it reproduce distribute publicly the work So work local example you wrote the on your file computer distribute it you would own to the resulting copyrigoted in and only you would have hall If anyone activity else make copies of the without the public or sing the song your concert did any of these things fair your perrrussion she would be infringing your copyright exceptions to unless the qualified as use or fell into one ot the other statutory copyright owners exclusive rights The nature of digital file-sharing technology inevitably implicates copyright law First since every the tiles being to digital file is tixed for purposes of copyright law whether on hard drive Ci or To merely in RAM shared in generally qualify as copyrighted distribution act tnti works Second possibly copyrighted Letluires the transmission of tile from one person of copyright another results reproduction includes the and public perthrmance in the world law public performance tiom the of transmitting work to the public and copyright lawyer every reproduction seem suspicious distribution IlitsOt public performance an explanation thus tilesharing systcms The endusers direct infringement For the individuals .ini who arc are sharing by are the tiles the question copyright becomes whether or otherwise are all of these reproductions under enpyright distributions law public 1wrformanct authorized the owner perniittecl as fair copyright Use nwner arc br example So it the liles you sharing wth your ftiends videos of your vacation you are the and have presumably authorized reproduction distribution and performance Microsoft of the videos Office However lvou the the sharing MP3 of Metalhicas greatest In that hits or disc images olihe latest 2000 installation the CD the issue becomes more complicated of copyright infringement case assuming depend whether ourc %\hat that the copy right owner has not authoirized activity to question c.p right will If you can qualify Ihr any of the limited exceptions aall owners exclusive rights not copyright lawyer rights direct infriugeryou have directly io1ated one or more of the copyright owners exclusive http//www.gtamarketingcom/P2Panalyst/VonLohmann-article.html 7/12/2008 Peer-to-Peer File Sharing and Copyright Law after Napster Page of 11 he P2P 1U1 tool ic4 cet maker contributory and vicarious Ti-us infringement fiicshnring toulsY WFPJE hac to do \5 iu Un h1OSC wit 1hcLiidn develon Lie- tod icsujhte tool pcertoeer betweci riUr ci all li 1LUt nii L-ii we beyond vstt iihiu h4nni cl has no ithOl\cIJIeEIt tthe eupviug td-uee involved iii cih1 ho ho the iritringng actn ity to so1icumes in ieach me airect infringer 10 inose wOo were only incsirectiy many otner areas of eomg to commit crime Icr example if swapnieet swapmect owner can b.c the law think of the copyright wheeI man in with stick up or supplying gun fix someone you Icno of another is law will sometimes hold one indivzdual accountable to the actions So the owner liable rents for space endor the know ledge that the vendor sells counterfeit CDs held mh-ngement alongside the vendor Under infringement thai will copyright law this indirect or secondary in liability can take two distinct theory forms contributory owner infringer it and vicarious direct infringement infringement widely-used are order to prevail place In under either the copyright direct must first show some underlying has taken other words there must be before virtual anyone be indirectly that liable In public peertopeer in infringing that to filesharing activity environment specific however is certainty prevent at least some endusers engaged of unless technical measures are taken to this like permitting labels only the sharing tiles have sue been cryptographically fhr marked was not as authorized fbr When to the major record large and music publishers decided users Napster example it difficult them locate number or Napstcr who were sharing copyrighted music without authorization Contributory Infringement similar Contributory infringement is to aidin.g and the abetting courts liability it one who knowingly contributes to anothers infringing in fringeinent may bc held accountable causes in Or on as have put one who theory with knowledge of the liable activity induces or materially contributes to the infringing conduct contributory infringement of another copyright may beheld as contributory each infringer So order to Prevail owner must prove of the following elements Direct Infringement ledge The There has been contributory that direct infringer infringement by someone underlying direct Knon accused either knew of the infringement This element can be he satisfied by sho-ving should the contributory all infringer actually knew At about the infringing activity the or that reasonably infringer have iwonn given specific the facts and circumstances must have some for information itself is about infringing activity minimum however the mere fact that the contributory is system capable of being used infringement by not enough infringer Material Contribution underlying possible can direct The accused contributory induced and caused that or materially contributed Inake the direct to the infringement Merely providing the sile facilities infringement be enough Vicarious Infringement icarious infi-ingement detions is derived will Ite from the same liable for legal principle that holds ifhe an employer responsible and ability to for the of its employees activit and person also vicarious infringement interest in has the right in supervise vicarious the infringing has direct financial such acti ities Thus order to prevail on tiingement theory copyright owner mush prove direct each of the following Direct Infringement There has been in IIingencnt by someone Right and Ability the that to Control The accused vicarious infringer had high to the the right and ability- to control the or super ise underlying the ability dircot to infrmnuement usel his element does or block nt ct hurdle For example Napster court found tcnninatc accounts user access system was enough to constitute control httpl/wwwgtamarketingcomlP2PanalystNonLohrnann-artiele.html 7/12/2008 Peer-to-Peer File Sharing and Copyright Law after Napster Page of 11 Direct Financial direct Benefit The accused In vicarious tIns infringer derived direct financial riot benefit that from the benefit underixing especially infringement or applying rule however seems irllrIIt the courts have 10 insisted the be direct use finaneialalmost exisis an benefit he enough For example as the Napster fbr court found and the tiiianctil benelit base in where the the a\adabihtv iaaieriai In acs onw eusemers ncing tuni mjki- miflnv ao ci nive4ors should be noted that the nature of vicarious fact are that infringer is cut nol liability creates strong in incentive iiiugernenl to monitor the conduct person can 01 your users vicarious icr stems infringer from he if knowledge required lUr vicarious activity of liability he even they completely their unaware of nf ringing you remain to the ignot As result if you exercise at control ocr words of users and derive benefit front to activities ant their conduct your own risk In the detectable of the Napster court infringement for the tight police must he exercised fullest extent Turning blind eye to acts the sake of profit gives rise to liability indirect Liability The seivice Napster that and P2P Systems the Napster Case the first case represents plaintiffs that application that of these indirect liability or theories to peertopeer filesharing ease the admitted Napster is Napster thr did not itself and make distribute any or their copyrighted In its works instead opmion the they argued liable contributory vicarious infringement defenses February 12 2001 Ninth Circuit agreed rejecting each of Napsters proposed Turning first to contributory infringement the Ninth Circuit upheld the lower courts findings Direct Infringement At least some Napster users are direct infringers because the distributed and reproduced copyrighied music without Napster authorization actual Knowledge of had files kno\\ ledge ofullinging activity based on internal company executives einails and the list 2000 infringing based provided by the IAA Moreover and Napster should habits have known of of its the infringing the appearance activity on the recording song titles industry experience promotional downloading and of wellknown in certain screen shots used by Napster and facilities for Material Contribution Napster provided the site the directly infringing conduct of its users The Ninth Direct Circuit also endorsed the lower courts vicarious infringement analysis Infringement At least some Napster users are direct infiingers because they distributed and reproduced copyri ghteci music vi thout authorization Napster ability Right and Ability to Control block Napstcr has the ability to to control the infringing activity of its users because it retains the right to Financial activit users access its system from the infringing activities is Benefit as derived for financial benelit of its users because from the size this acted dran customers and portion of Napsters value derived ofts user base The ihnits Ninth Circuit concluded hon ever the that the lower court had not adequately In considered the technological its oft he Napstcr Ninth notice system when crafting preliminary guiding that injunction ordering the district court to revise injunction iticr till the Circuit spelled out some principles is First in order to prevent sharecI contributory infringement Napster the also receiving from copyright steps to owner work being on its system without authorization will have to take reasonable this prevent farther distribution of the work Although the particulars to its lower court require ot that almost certainly will require that Napster implement more sophisticated Napster implenient filename filtering based on MP3 IL tags \lDS filtering central be up to index It may hashes acoustic fingerprints other mctadata Second the Ninth the Circuit in order tc prevent vicarious iiinngenient oithe declared of this that Napster. will .bears the htnxien ooiieina its system within the limits system Again particulars command be determined by http//www.gtamarketing.eom/P2Panalyst/Vonhohmann-article.html 7/12/2008 Peer-to-Peer File Sharing and Copyright Law after Napster Page of 11 the lower court Nevertheless Napster this xvii almost its certainly require will some pro-active monitoring to activity by Napster to iucc kccp iat in the courts view clv controls users Napstcr of 001 its likely be required take reasonable measures xviIi tabs on wIat those users arc up to within monitor cootinac ceniral the hounds to system songs architecture At are minimum this not authorized recluire Napxtcr Ji-0 reqi proacus FIlO index weed ans mat it knows for sharing it that \apser tC3i1i1ak UtF5 didi gitcd works without authorization Potential Defenses Against Contributory Liability and Vicarious No Direct Infringer All of As discussed can My Users are Innocent Fair Users there above if there is no direct infringement hi the can are be no indirect liability topeer developer uris plausibly claim that to no users network sharing copyrighted Consequently if peerworks without authorization this would he complete defense to an given contributory the or vicarious infringement claims Unfortunately and the may be to extremcly difficult demonstrate if decentralized nature of most P2P networks is wide variety of uses which they statutory may he put Even to file it sharing will by some users difficult to privileged that under the fair fails use doctrine such an file or another exception exception copyright be very show every user within Nevertheless viable defense in certain specialized networks that permit the sharing of only secure authorized types this maybe Capable Although ins olved in of substantial contributory and noninfringing can uses sweep broadly catching has defined an vicarious iniringcmcnt even those only this indirectly the copyright infringement of others the Supreme ourt found that outer limit to reach in case the involving the Sony of Betamax device that VCR is the Supreme Court contributory infringement liability could not reach manufacturer capable of substantial noninfringing usc that Universal lool City Studios infringement and Disney were on one side of this case arguing its the Sony Betamax of its VCR was and of copyright On the other side xvere its Sony advertising agent several retail distributors 5-4 if one individual decision that VCR user The case ultimately made in ay to the Supreme Court which ultimately issued liability substantial proceeded engaged two in paifls First the Court infringement held that there could he no contributory was capable of even some uses VCR use users were In the copyright so long as the device that the noninfringing second part of its opinion the Court telcv ision found by VCR was capable of several such noninfrmgmg ha ludin.Q the thncshifting of broadcasts home vicwcrs of the nfortunatcly the recent Ninth Circuit decision court found and derive service is in the this Napster ease has n.ot dramatically to reduced the scope Ectamax defense Accordingly ubstantial only applies pievctit irreles fhe if Firsi the Napstcr that defense benefit does apply vicarious infringement the existence the Betamax point liability you have control over financial irrelevant from tile direct infringement that that of defense to act to noninfringing until specific uses for your Second activity thc court concluded intormation Skill identifying infringing liahihty and has been received of substantial At failure inirmging activjty give risc to existence noninfringing uscs becomes ant Ninth ircuits otthc Betarnax detcnsc has least interpretation tile at two important implications least in tile for P2P court will aevelop cii First it underscores hearing and about threat of vicarious infringement liabilityat noninfringing as Ninth Circuit in ot he interested ccordi ngl in your substantial uses if you are accused of vicarious ftingement will control direct financial benefit descnbcct above should he given wide berth Tins like hffp//www.gtamarketing.eom/P2PanaiystRJoflhiOhmanfl-artiCle.html 7/12/2008 Peer-to-Peer File Sharing and Copyright Law after Napster Page of 11 reduce the attractiveness of business models built on an on-going user activity seiiice or communitybuilding users and completely direct model value to Ue extent that these models allow large user base mrsoiht the provider to conuol i.e. terminate or block attractiveness create atirneting At the same as time it 3g soltwae thk amight rminimizc may ti vemiors increase the of selling decentralized financial conLul oer and continuing meuL nan Second nIrmnjag uses with respect to contributory and desist infringement letters the Ninth Circuits interpretation in turn of the Betamax limit defense makes freettoin it risky to to ignore the cease From copyught or service owners which may developers infringing detine architecture of her product noninfringing that Once you serve as have received to notice of specific liability activhy your substantial uses may no to longer to shield contributory Of course even behind the the Ninth Circuit recognized challenged service or product the ability respond these notices is may to be limited by the technology the limits of what is Nevertheless when Napster court required certainly determine technically reasonable out ease the results otcontrihutor to can be uncertain or vicarious that The decision liability for suggests that to copyright that owners once they make infringement it are in position take steps predict reduce the likelihood in will he used infringing activity of P2P tools demand developer What these steps might entail is difficult capabilities to hut may include sonic eases modilicafion of the architecture and of the tool service or system The DMCA In Section 512 in part to safe harbors the concerns of ISPs regarding their potential liability for the 998 responding copyright infringement harbors of their users in Congress enacted number of narrow safe harbors for copyright in liability These safe appear These safe harbors iunetions section apply 512 of the Copyright only to Act which turn appears anti in title 17 of the U.S Code 17 U.S.C 512 four online service providers storage only to the extent that the infringement involves transitory network transmissions ofinfonnation caching of materials on behalf of users e.g web hosting remote Pie storage aod the provision location tools e.g providing links directories search engines Each and reflects of these functions the state however 1998 is narrowly defined hy the staltite g. they dont caching today cover what youd by think 1998 fails of the art in bor example the automated eflbris web page of Akamai conducted AOL fit in within the caching safe harbor while the LOOIe sophisticaied file may not Because Congress did may not within the four Napster passes as not anticipate peertopeer sharing when it enacted to the safe harbors ruling many P2P district in products enumerated functions For example according network P2P products an early by the court in the question just ease an its DSP own cannot use the transitory private network transmission safe harbor unless the traffic flunk this through Many will by their very nature requirement Napster did in entities addition to being with limited to certain narrowly-circumscribed interlocking statutory functions the safe harbors are only available to that comply number of complex requirements The online service the provider DSP must who been that adopt reasonably are repeat widely implement anti notify its users of poley of with the terminating accounts of subscribers have to infringers and on the accommodate and not interfere standard use technical measures auopEed basis of industry-wide consensus e.g of rohot.txt exclusion designate headers block spiders to The DSP must agent Th.e copyright and agent place receive notices of alleged copyright for the infringement register site time with the Copyright Office relevant contact of information agent on its web DSP must upon receiving notilication mfringemcni and from copyright owner expeditiously remove or disable access to the infringing material notice takedown or been aware of facts The DSP must apparent not have known about the infringement the from which such activity was i.e must ii you take head in sand approach benefit you lose the safe harbor where he DSP not receive direct financial from intiinging activity in situation the DSP http//www.gtamarketing.eom/P2Panaiyst/VonLohmann-articl.e.html 7/12/2008 Peer-to-Peer File Sharing and Copyright Law after Napster Page of 11 controls such activity i.e. if youre liable lix vicarious liability the salb harbor may not protect you to in the final analysis qualifying for any of the DMCI\ sale harbors requires carethi advance attentjon the legal to no ilic uquh umeni seek eta and obIguieir dial the statute Lt siocld hf itnpus ec t1 resub .t .tn P2i eus eloper ocess rctrjtd fl who lie- intends jjt en nuvei CO the the 0ei cttca after-I lviii tw e.cquiruments olthe saIL harbors you might conult .hunl 111 oven tw loccited at td the han nttpL/wtv-w.riehmond.edulloltvGi4 The enacted DMCA ban on recent as part circumvention technologies landscape to One work otcet to addition to the copyright deserves special ally attention technology Section 1201 at of the Copyright Act of the DMCA ful For makes it unlawful eircuinvent aimed protecting copyrighted In addition also it the development distribution if or use of circumvention technology rights or devices is with only narrow exceptions build unla example for tool copyright to owner the uses digital tile management DRIVI software solution to song would he unlawful software video anyone to crack encrypted without the copyright osners permission which is or or distribute designed represents crack the file The first litigation involving DeC55 capable C\ of decrypting DVDs one of the cascs testing these anti-circumvention provisions of the Of orotocois course circumvention such as Gnutella as technology facilitate is not necessarypart of the peer-to-peer file-sharing file network Todays in P2P simply tile transfens leaving itself whether there encrypted or not unaltered interest Nevertheless integrating copyright owners tools begin to deploy DRM In and watermarking of the systems broad may be cjrcumventon with tilesharing tools light DMCA ban on circumvention technology however any such integration may substantially increase the risk of liability Lessons and Guidelines few general guidelines take that 11w for can he P2P Developers derived he an P2P that developers your project from the discussion inviting target for above These are steps you can placate and may reduce the chance will easy copyright owners than can pioduets your investors when they ask you whether you are likely to spend their money on litigation rather minimize the chances that your case will become the next legal precedent that content owners future innovators use to threaten Of course because the relevant legal principles are still in flux these guidelines represent merely one general analysis olthe legal landscape please consult with an attorney regarding your precise plans Your two options In either total control or total anarchy that the wake of tIme Napster allows decision for it appears copyright and control law has foisted binary choice on P2P developers makes such build sstem antI control that thorough impossible monitoring This over user activities from the Ninth or build one that monitoring and completely in conclusion stems Circuits analysis of contributory vicarious liability the Napster case As contribute tiler discussed anove adds contributory infringement In requires that it you have will knowledge to of and materially material contribution contributed he on to to someone elses infringing activity to most casc be difficult avoid all if your system acm any value the user experience on ou probably have rnatcriall will likely any ntrmngtng user itics Sc the chief battleground contributory infringement the itnou ledge http// 7/12/2008 Peer-to-Peer File Sharing and Copyright Law after Napster Page of 11 issue The Napster courts analysis suggests cease that nat .1 aetivin that e.g in and desist it letter will from once you receive notice that your system is being used for to stop copyright owner you have duty to do something of your system but may ultimately he you to it mivht by tsometihng be Well uid be limited by the architecture surprise of crtrt order iO the to unpleasant court telling includt reengineei that your technolog3 to aittiacinu C.Th users hanp.aed pswr such VOt L1 nt Oj Cofl\ in and LiilhA mechanisms hcn enable monitoring or and von CLone comp2unv ehcon architecture that will ince judge that monitoring control impossible he Napter courts vicarious \Tic.Ij.ioris liability analysis also arid counsels for either total control or total anarchy infringing activity approach The of liabilily requires will that you control to resist in receive benefit from someone elses benefit will element be difficult many P21 cases for so court long as the system permits or enables to result the sharing infringing materials fight this will serve as draw users which can he enough benefit found that in liability So the to likely center to on the control element The constitute Napster the right to block users access activities the service users to was enough the fullest control The make court also in to is found that Napster had duty to monitor the of its to extent possible that Accordingly it order to avoid monitor vicarious liability infringing users P2P developer or choose an would be wise architecture that either incorporate mechanisms easy and block will convince judge that monitoring and blocking impossible Better to sell stand-alone software products than on-going services As power htncfit Napster to in discussed above or block vicarious liability is perhaps the most serious to justify risk facing P2P developers liability Having the Lerminate the users constitutes enough control depends on even if imposing vicarious and youre Add way to financial joining ibrm of business infringer model This is that true large are user base well on your as vicarious and you completely unaware of what your users are up tothe rauring of control financial benefit are enough Of course most service the if business oiler models tit this control and benefit paradigm monitor your users on What this means to is that after Napsiei decision to if you service obligations you want to set escape nil liability you want avoid monitoring the you may have to youll have to give up in eonttoi If its time aside the lessons youve learned about importance is orreiauonsnips for the New give Economy crossed the your system may be used threshold In fbr infringement and tlus capability fbr draw users youve already to benefit order to avoid vicarious liability those infringing uses you will need up any control over users Vendors of standalone vicarious infringement liability software After optical products sells may he in it better position to resist monitoring obligations and it Sony \CR or audio has no control over what the enduser does with built to Neither do the makers some of which their of photocopiers scanners cassette recorders Having has device with many uses only or unilateral may infringe copyrights to the typical look electronics manufacturer no way license get terminate endusers penmttlng not yet hiock vendor ability use the device but out tbr those shrinkwrap also software terms termination Not coincidentally these manufbcturcrs typically dont sued at kill least by copyright owners The key iemiination go of any control or other similar mechanisms rights here is to let you ma have over your users -no remote switch contractual Can you plausibly deny knowing what your endusers by are up to control need level to Assuming still that you have escaped vicarious infringement liability eliniinating will or financial benefit there is the danger of contributory infringement activity If To avoid here you you address whether you cleniability fbr knew into or ould product activity have known of the infringing and business for trouble of your users Have built of plausible your architecture model you promote software that endorse or sends sell facilitate the use of your product infringing than youre asking talk Similarly great back it usage give reports it may and lead to more knowledge von want Instead v.air up all the legitimate capabilities or away then leave the users alone the choices arc total control or total anarchy see ahoy http//wwwgtamarketing.eom/P2Panalyst/VonLohmann-artiele.htmi 7/12/2008 Peer-to-Peer File Sharing and Copyright Law after Napster Page of 11 here are other good reasons for designing deniahility into your product or system First it protects your users aod depending doing On your architecture information uscr hosts or nodes as well if youre trout not collecting reasons that can information about what theyre no one can get that you Thats important aet\ lbr have little to do with copyright and pd cacy it tew Ih not collecting ionvaton peortopeer orks prumote target free specth a. U.2 he IAS abrarv Au aienes Program noniufringirtg our uses makc vourn for snhpoenas you oont ha\ in hat arc your substantial your produci is intended to work solely as mechanism for copyright piracy be youre for asking for legal trouble More importantly youre thinking too small Almost all some of which the creators themselves tail to appreciate paraphrase peer-to-peer systems can used many different purposes to So create platform that lends if itself to many uses or and William Gibson let the street find support its all own uses for things just For example or Divx youre developing Actively sincerely file-sharing system or distributed enthusiastically search engine file types not MP3 files promote the noninfringing uses oCyour product And dont promote any infringing uses The defense until if existence challenged of real in substantial noninfringing uses will increase it the chances noting that that this you can defense invoke will the Bctamax you point court As discussed above however letter is worth only help the copyright owner delivers cease and and desist notifying you of with an obligation of your system specific to infringing activity effort At to that the Betamax defense WI-tat this may evaporate will may leave von make the reasonable stop the infringement means depend on the architecture and whims of the court Disaggregate functions Separale peer networks intels security entity different functions and concentrate to your efforts on discrete area In order to be successful peer-to- will require products address numerous functional needs---search to e.g OpenCOLA lit security e.g. toolkit dynamic all file redistnbution In titet is e.g Freenet of an take set Few examples Theres combined reason why one should try to do of these things the creation mix oi nteroperabi hut distinct applications probably good idea open irom of protocols with competitive productengineering Point of view This blank video approach tape may also have legal all advantages If Sony had not only manufactured clubs and VCRs but also the sold all the distributed out the TV If Guides and sponsored downhill is swap meets for \/CR users Betamax and file ease might have turned sharing in tlifferently Part of Napsters each activity to was by its combination different of indexing searching single piece of software handled product and vendor on the other hand each entity may have better legal defense charge of infringement court can order you to It to stop infringing activity model moreover max limit what by your disaggregated usd5 For example ifa search engine that trawis the P21 network orvicrriowly space were to he held contributorily liable or titeilitating access to copyrighted works the search engine company would not be able make any changes to dilierent an anonymized secure tilesharing product that was developed by company As the Napster court recognized you can only he ordered to police your own premises Ihe smaller it is the less you can he required to Finally \iilleitnium certain functions Copyright Act of DMCA sharing may be entitled to special for protections under the safe special harbor provisions ot the Digital the Search engines with example enjoy DMCA protections to Thus in nnthmation P2P file application third party search engine might be easier defend court than ar ers mi egratecl solut icn Dot Avoid make your money from models that the infringing activities of your users business rely on revenue streams that can be directly traced to infringing activities For http// ohmann-article.htmi 7/12/2008 Peer-to-Peer File Sharing and Copyright Law after Napster Page 10 of 11 example unHcied neclianisnl if you arc developing the through tn peertopeer auction system do not take tile percentage system all cut on transactions payment take another fi exwnple peertopeer lakes sharing that includes ncit might pose snnilar problems aencratea horn sates bceeg the system it sencior percentage cut of payments including Divx .ht fiic idi fi iat to 12n Ne\ infringing tl Ia there is ncreaung building your user base on might be enough financial for trigger ieariuu liahilit\ ertlicless nothing to he gained by your business it benclit owners en more to stint directly linked to activity by users-youll only be making that much easier copyright you down Be open source ln offer addition to the usual in litany ot special adantages or financial the peerto-peer arguments favoring the opensource model the open source approach may realm It may be more difficult for copyright owner to demonstrate to to control benefit with respect no one has Financial the ability an pen he source product or After all anyone can download and compile of the directly open source esulting realize code aud terminate also block access concept the or otherwise control the use applications financial benefit may problematic where the developers court has the do not any gains from the code so this as noted to abo save however Napster embraced legally very broad dangerous notion oihnaneial benefit ma not be enough you Finally projects by making of others most elements out of of tl1e P2P network open source or relying on the open source iriore legally defensible ancillaiy services you can build your business tile such as search services bandwidth enhancement storage file meta-data services etc. Do Dot he direct infringer make and store no copies This one may be oln ious but remember works you may he held liable as copyrighted not be available to that direct if you ihe court will not be interested of any copies even if only in case many of the defenses discussed here will infringer in control or knowledge or financial benefit or material distribute In that you make or RAM eontnbution if you macic copies youre probably liable for infringement arehitcetures is Of course that the this shouldnt be resources are problem for most P2P developers not nass tl sinĜe the great insight central of peerto-peer he carefol actual being shared need irough any server Nevertheless where caching or similar activities concerned Do Avoid protect the crack so leave it not build any circumvention devices into your product incorporating into your product any technology designed to circumvent protection measure meant that is to to righis of copyright owners For example do not incorporate any code into your product about to intended video the CSS encryption system used on out DVDs bypass the proteetion scheme files used on Sony think Playstation lIe to no copy others flags of streaming RealAudio without Whatever you may the merits of this games work Youll have enough orries adding circumvention liability the list 10 Dont This In tip use someone elss trademark in your name lark tlocs are not relate atteinptinv to to copyright capitalize but rather trademark hs also good common sense Many early peer oeer products their on and the notoriety of Napster to legal by incorporating Napster rariety portions ofthe itself to Napster strong name into Jc producis--Napigator of its OpenNap name as few has shown he feacka trademark righk bar ing threatened dangerous action against it of unauthorized it vendors owners OnutelIa may also be name to appropriate their after is not clear of the Nutella trademark forced to may at its some point assert to own trademark who owns rights And rcmember from AOL Napster merchandise whether the and that AppleSoup example was changed name Fly-Code receiving pressure Apple Computer httn1/ 7/12/2008 Peer-to-Peer File Sharing and Copyright Law after Napster Page 11 of 11 Good luck and change the world OIJ he %uthtpr cd IL vci cat ohoinni ah ccnic an attoi nc \.tit working 11k viiung researcher with the Berkeley Center carrcnt dir dated LCaiL Cu Shno nf Law at VC berkele Iii csearch is focused relationship wtth Ic also continues on Ihe impact oF peer-to-peer techno ogies on the Future of copright to maintain with Morrison Foerstcr LLP shere prior to joining the Center he was an associate practice concentrated 1-us on transactions and interests the lie counseling intersection ni the Dtgttal involving of copyright the internet the and information including issues relating technology to online primary legal at the copyright law and Internet music distribution and with application Millennium Copyright Act DMCA to Internet businesses He has worked variety of Internet clients including Yahoo Verio Myplay Riffhge Voquette SpikeRadio and BCi Copyright Information Permission purposes for all to reproduce and distribute to the this paper All is freely given provided that such activities at are for noncommercial and include attribution author other rights reserved Contact the author ficddvonLohmann.eom other permissions Footnote Acronym for am lawyer that to distinguish from the common and IANAL am not lawyer appears on Slashdot other online forums 2001 Fred von Lohmamt 0.91 ftc eurreat version contact cdi von ohniann.corn Back to horn iYiainivsi.tvnn is an wfonnanat fur. Scf17CC 0/ 11/v I4tL1 Siraurir .tiaiJeiin tfliluieitpU/i.S U514 http//www.gtamarketing.eom/P2Panalyst/VonLohmann-artice.html 7/12/2008 Date Printed July 12 2008 URL http//