Editorial: File Sharing and Downstream Liability
The core issue is the potential downstream liability of a product or service for illegal use or misuse of that product or service by customers. We have seen this legal issue with very different products, like guns, and in at least one case, a book (Paladin).
The Ninth Circuit had ruled in August 2004 that, unlike Napster, the newer peer-to-peer services Grokster, Inc. and StreamCast Networks, Inc. did not have secondary liability because they did not have central servers that pointed to copyrighted material. With the original Napster (developed by a teenage Shawn Fanning), the problem had supposedly been that the service provider, with a central server, was in a position to know about copyright infringements by customers. With the newer decentralized technologies that is no longer true. A file-sharing service company using a decentralized system or product could wash its hands of any “brother’s keeper” responsibility, although it may have expected prospectively that infringement would attract ethically naïve (often teenage) customers. One might accuse the defendants in this case of what most higher education (especially military) honor codes call “quibbling” (or “blind ignorance” or “willful blindness”). But their newer services have important other credible (and trend-setting) legal uses, as when a filmmaker chooses to share his film (that is, his own content, however inexpensively developed and even distributed outside the usual mechanisms of the entertainment industry) with others voluntarily through decentralized file sharing.
The record and entertainment industry claims that the file-sharing companies are intentionally encouraging piracy with their advertising schemes, and that they could prevent piracy.
As with the COPA litigation to which I have been party,
there are genuine questions about the technical feasibility of preventing
unwanted use. But to a systems analyst like myself, the issue would seem to
lend itself to careful design and analysis through the kind of project
management that software giants are very good at (much better than government,
anyway). Any audio or video file could be tagged with a header that told the
file-sharing software that it could not be shared for free, or that told other
copy software that it could not be copied. Obviously this would require many
changes to browsers, office products, video and audio playback programs, as
I feel two ways about this. As a self-published author
trying to network with the movies, I can see, on the one hand, how the ability
to attract investor money for a project of mine could be undermined by the
threat of piracy. But I also see a deeper threat that, were the entertainment
industry to get its way (and were there not a long-term technical compromise
available), my own freedom to even put out my work could be undermined by fears
of downstream liability in other areas. For openers, the ability of artists to
distribute freely their own work through networks or even make DVDs of their
own work might be compromised. (Artists
often face bandwidth constraints with traditional websites that file-sharing
paradigms, using innovations like Bit Torrent, would be able to overcome.) After sliding down the long legal slope,
There is certainly a deeper and more subtle point. All the different machinations of the Internet allow entrepreneurs to experiment in unsupervised fashion. Many persons have used the Internet paradigm in bad faith for get-rich-quick schemes (spam and so on). But even content providers like myself could represent a potential threat to livelihoods of persons working “the old fashioned way” in protective bureaucracies in industries driven increasingly by short-term bottom-line thinking. So downstream liability might become an excuse for turf protection. Ultimately, anyone using newfound freedoms has to wonder how he will be held accountable for the example he sets.
Ideas about personal accountability in an ongoing historical context probably have little substance legally, as they are still nebulous and subjective. Law, however, does consider intent in weighing the just outcome of a particular situation. According to some legal commentators, the Supreme Court could hold that the vendors of many file-sharing services are predicated on a business model that needs copyright infringement to survive, that these companies deployed their services intending many customers to infringe. This could be called “bad faith.” On the other hand, so such an argument might go, other kinds of services (such as those offered by shared hosting ISPs) and products (most home recording and playback devices) intend that the customers behave legally and can enjoy the services or products at reasonable cost while staying within the law. The risk, of course, is the proverbial slippery slope. Many other services have been exploited when customers are unsupervised (spam, scams, viruses, the sales of illegal services) and it is difficult to decide when a vendor of some product or service expects to profit from illegal behavior by its customers when it knows it cannot stop that behavior. Downstream liability is well known in copyright law: in print, printers and retail vendors can share in liability for infringement, although that is rarely invoked, and downstream liability exists in many other areas (such as serving alcoholic drinks) where society expects some responsibility for others. Hopefully the earlier cases like Betamax still provide a good precedent to keep downstream liability from interfering with innovation and personal productivity.
©Copyright 2005 by
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RIAA lawsuit essay on my other site
Jonathan Krim provides The Washington Post,
Another story by Grant Gross, PCWorld.com and
Electronic Frontier Foundation provides a tutorial: “A Betamax-protected device every day (weekday) until
Here is a CNN account of the oral arguments on
Generally, the court was concerned that the defendants could
have been intentionally “inducing” or encouraging infringing behaviors, but
they were sympathetic to the idea that often innovators do not know how
customers will use their products in actual practice later. Grokster
Jonathan Krim provides a similar
story, “Court Weighs File Sharing: Technology Advances v. Copyrights in Grokster Case,” The
Linda Greenhouse covers the issue with “Lively Debate As
Justices Take On File Sharing,” The New
The file-sharing debate certainly may be exacerbated by the
mass piracy of the 2005 Star Wars movies (Episode
Jeffrey Rosen, “Supreme Futurology, Roberts v. the Future,” The New York Times Magazine,
A related issue may concern the fact that some jobs do not allow new jobholders any outside income, including the sale of their own intellectual property. This practice happens with life insurance agents. But Grokster could reinforce copyright and the concept of intellectual property control to the point that this practice is seen as counter to public policy.
Mark Cuban (Dallas Mavericks owner and a principal player in Magnolia Pictures and some independent film ventures) suggests that major news sites pay for links to their stories when advertising revenue results for the original content owner. This is a “win-win” that would discourage print content infringement, at least, and pay for links, which have themselves been controversial. Go to http://www.blogmaverick.com/entry/1234000550066876/
BitTorrent has struck a deal with
There is an interesting interview with BitTorrent founder Bram Cohen at http://www.wrongplanet.net/asperger.html?name=Articles&pa=showpage&pid=98
An Internet-illiterate mother has been sued for downloads supposedly down by friends of her children without her knowledge, AP story by Jim FitzGerald, “Mom Fights Downloading Suit on her Own,” http://hosted.ap.org/dynamic/stories/M/MUSIC_DOWNLOAD_SUIT?SITE=NYTRO&SECTION=HOME&TEMPLATE=DEFAULT
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 Which offers the Morpheus file-sharing service.
 Saul Hansell, Jeff Leeds, “A Supreme Court Showdown on File
Sharing,” The New York Times,
See Brian Garrity, “P2P
Sites Prepare Legit Bows” at Reuters, at http://go.reuters.com/newsArticle.jhtml;jsessionid=UDHFIWBEIBNKMCRBAEZSFFA?type=topNews&storyID=8828083
now, according to Electronic Frontier Foundation, Section 230 of the infamous
Communications Decency Act of 1996 (a provision not struck down in 1997 on free
speech grounds) provides some protection. Section 230 says “"No provider
or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content
provider." This would mitigate against downstream liability unless
challenged. The Supreme Court, in its ruling on Grokster, will surely have to
consider whether its ruling sets a precedent in areas like this, since
defendants are claiming a slippery slope affecting speakers’ free expression
(and are claiming that the music and movie industries want a lot of turf
protection and “barriers to entry”). Would an
Also, would section 230 protect an
 Understand, however, that file-sharing systems and the World Wide Web are very distinct applications on the Internet, each with their own protocols.