CS 335 Reading for October 25:
Copyright Liability and Computer Networks

On Monday, October 25, 2004, Ethan Preston will conduct the lecture for CS 335. Mr. Preston is a attorney practicing in Chicago in commercial litigation and computer law. The assigned reading and the lecture for this class are meant to provide you with some familiarity with copyright law issues raised by networked computers. In particular, this class is intended to provide you with a background in copyright law and peer-to-peer networks.

There are a substantial number of readings assigned for this class.  However, many of those readings are quite short. A number of the readings ask you to skim the reading except for specific pages or to skim the entire reading. While the readings to be skimmed bear to the subject matter, they are either not central to our discussion or should simply not require much of your time. The assigned reading also include some discretionary readings. These discretionary readings are intended to provide you with additional resources if a topic is interesting to you, but they will not be covered in class. Some of the readings have questions underneath them. You are asked to think about these questions after you have done the reading and form an opinion. The discussion in the October 25 is class will give you an opportunity to express your reactions to the readings and exchange them with the other students and the instructors.

I.    Copyright Infringement and Warez

This section's readings concern the legal system's methods for preventing and deterring copyright infringement. There are two basic methods of controlling copyright infringement. First, the legal system can incarcerate people who commit criminal copyright infringement. Second, the legal system can impose liability on people who commit criminal or civil copyright infringement.

One of the most important concerns for copyright holders is whether they can enforce their rights economically. Obviously, copyright holders must pay for lawyers, but they also receive payments from defendants. The question is whether the payments they collect exceed their litigation costs and attorneys' fees. This is an important question you should think about while reviewing these materials.

A.  Individual Civil Liability

Any copyright holder can sue a person who infringes (that is, reproduces) their copyrighted works. Although copyright holders can recover statutory damages (discussed below) and attorneys' fees, they must pay for private attorneys until the case ends and the defendant pays the copyright holder. Given that private attorneys can cost tens of thousands of dollars per case, copyright holders may not be able to recover all their costs against a defendant.

READ Section 504 of the Copyright Act regarding statutory damages:
http://www4.law.cornell.edu/uscode/17/504.html
(What is the maximum amount of statutory damages for copyright infringement?)

SKIM the RIAA's mass lawsuits against individual infringers (you only need pay attention to the number of people sued):
http://www.wired.com/news/print/0,1294,63263,00.html
http://www.wired.com/news/print/0,1294,63579,00.html
http://www.wired.com/news/print/0,1294,63945,00.html
http://www.wired.com/news/print/0,1294,65162,00.html
(Can average consumers defend one of the RIAA's suits economically? That is, can consumers pay their attorneys to defend them successfully for less than the cost of simply settling from the outset? If the RIAA settles these cases for $3,000 to $5,000 per individual, will the RIAA recover its attorneys fees it paid? If it is not economical for the RIAA to file these lawsuits, why would it do so?)

B.  Individual Criminal Liability

Federal law enforcement (such as the FBI) investigates criminal copyright cases, and federal prosecutors (United States Attorneys under the Department of Justice) prosecutes those cases. As discussed below, a person who pleads guilty or is convicted is sentenced to incarceration. The length of the incarceration depends on the retail value of the infringed goods. Although private copyright holders can ask that federal law enforcement target particular infringers, they do not control the criminal prosecution process. However, criminal prosecution of copyright infringers is essentially free for copyright holders (except, of course, that copyright holders pay taxes to the federal government).

One of the more startling aspects of criminal copyright infringement is how easy computers make it to copy a great deal of copyrighted works.

READ the Justice Department's investigation into warez groups (criminal copyright enforcement):
http://cybercrime.gov/ob/OBorg&pr.htm
(What is the typical motivation for individuals in the warez scene?)

READ the criminal copyright infringement statues:
http://www4.law.cornell.edu/uscode/17/506.html
http://www4.law.cornell.edu/uscode/18/2319.html
(Is a profit motivation necessary for criminal liability? What is the standard for criminal copyright infringement?)

READ the federal investigation of "Fastlane" group, which used sophisticated technical measures to avoid identification:
http://www.cybercrime.gov/fastlane.htm
(If the defendants' technical efforts to avoid detection by law enforcement were so sophisticated, how were they identified?)

SKIM the United States Sentencing Guidelines to see how a defendant's sentence for criminal copyright infringement is calculated:
http://www.ussc.gov/2003guid/2b5_3.htm
http://www.ussc.gov/2003guid/5a.htm
Although reviewing the Sentencing Guidelines should not take a lot of time, it is important reading.
(You may know someone who is file-sharing. Please look at the Sentencing Guidelines and estimate that person's potential sentence. If you do not know anyone who is file sharing, estimate the value of the software on your computer and calculate the potential sentence for criminal copyright infringement of that amount of software. You may be surprised at how severe the sentence given how easy it is to copy software and other data with computers.)    

II.    Peer-to-Peer Networks

A.  P2P Networks Present a New Challenge for Copyright Law

It is difficult to enforce criminal or civil copyright laws against individuals on P2P networks. One of the largest problems is that there are so many P2P users. It is difficult to sue them all, or even enough to control copyright infringement on P2P networks. So copyright holders have a strong incentive to sue the P2P networks themselves, and shut down file-trading at the network level (rather than pursue innumerable individual infringers).

READ this news article for an idea of how many P2P users there are (note the difference between the number of people simultaneously connected to a P2P network and the number of people who have used a P2P network):
http://www.slyck.com/news.php?story=477
(If the RIAA has sued approximately 5,000 P2P users, what are the chances that a P2P user has been sued?)

However, P2P application authors are not typically liable as direct infringers. Most P2P application authors do not store infringing files on their own computers, provide Internet connectivity to P2P users, or otherwise operate or control the P2P networks. Rather, most P2P application author offer the P2P applications as stand-alone software.

However, copyright law provides a copyright holder rights against indirect copyright infringers. In particular, copyright owners can sue for contributory infringement (where the defendant has knowledge of the infringing activity and materially contributes to the infringement) and vicarious infringement (where the defendant profits from the infringement and can control or prevent the infringing activity).

READ SECTIONS I, II, III, IV.A., IV.B. and V of the Electronic Frontier Foundation's analysis of copyright liability in the context of computer networks and summary of recent caselaw:
http://eff.org/IP/P2P/p2p_copyright_wp.php
If you don't read anything else for this class, read this!
(What does the EFF recommend most strongly for staying out of trouble? Do you think the operators of BitTorrent trackers avoid indirect copyright liability?)

However, P2P applications lie on the edge of indirect copyright liability. Some P2P operators fall into indirect copyright liability, and some do not. This is an unsettled area of law. In general, liability depends on whether the P2P application was capable of noninfringing uses, or whether the P2P operator knew or should have known about specific infringing activities in time to prevent them. Two recent appellate cases have applied indirect copyright liability doctrines to P2P networks. Pay close attention to how the different architectures and features of the P2P networks lead to different results.

READ PAGES 3-5 and 11-18 of the 2003 In Re Aimster decision (by the Seventh Circuit Court of Appeals in Chicago):
http://www.ca7.uscourts.gov/op3.fwx?submit1=showop&caseno=02-4125.PDF
(What special feature did Aimster/Deep use to try to avoid copyright liability? Why was Aimster/Deep unsuccessful?)

SKIM PAGES 9-14 and 21-24, and READ PAGES 15-21 and 25-26 of the 2004 Metro-Goldwyn-Mayer v. Grokster decision (by the Ninth Circuit Court of Appeals in San Francisco):
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E9CE41F2E90CC8D788256EF400822372/$file/0355894.pdf?openelement
(Question: How are Grokster and Streamcast different from Napster? From Aimster? If Kazaa/Sharman controls Grokster's "supernodes," where does that leave Kazaa/Sharman?)

B.  Proposed Legislation

In the wake of the decisions above, the RIAA has lobbied Congress to make certain changes in copyright law. One of these bills would expand the indirect copyright liability doctrine, and the other would expand criminal copyright liability.

READ sections 103 and 110 of the latest version of the proposed Piracy Deterrence and Education Act of 2004:
http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.4077:

SKIM this analysis of the PDEA:
http://news.com.com/2102-1028_3-5387682.html?tag=st.util.print

READ the top part of this analysis of the PDEA:
http://www.corante.com/copyfight/archives/020117.html
(What impact would a letter from the Department of Justice have on a file-trading recipient? How would the PDEA expand criminal copyright liability?)

READ the proposed Inducing Infringement of Copyrights Act of 2004:
http://thomas.loc.gov/cgi-bin/query/z?c108:S.2560:

READ an article about the status of that bill:
http://www.corante.com/importance/archives/026457.php

SKIM the LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act:
http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1549
(Take a brief look at some of the technologies that INDUCE might have affected. How does the INDUCE Act alter the traditional balances between copyright holders and technology manufacturers? What does the Guide suggest prompted lawmakers to attempt to pass this legislation?)

C.  P2P Networks' Legal Vulnerabilities

SKIM an article about the resource problems the Gnutella network faces:
http://www.firstmonday.dk/issues/issue5_10/adar/index.html
(How many percentage of people on Gnutella provide the lion's share of files on the Gnutella network? If you were a lawyer for the RIAA trying to stop file-sharing and you could only sue one out of every thousand file-sharers, who would you sue? If the majority of the files on a particular peer-to-peer network were taken down, how useful would that network be?)

SKIM a whitepaper on Freenet's architecture and technical features:
http://freenet.sourceforge.net/papers/freenet-ieee.pdf
(Does Freenet's architecture and technical features insulate Freenet node operators from copyright liability? Think about Aimster.)

DISCRETIONARY READING: A law review on Freenet's survivability in the legal system:
http://www.lawtechjournal.com/articles/2002/05_021229_roemer.php
(If an individual person could be sued for millions of dollars for operating a Freenet node, but the person knows that the Freenet system will continue to operate and the person can continue to use Freenet, even if they do not operate a node, what incentive does a person have to operate a Freenet node?)

D.  P2P Networks' Technical Vulnerabilities

DISCRETIONARY READING: A news article on the RIAA flooding peer-to-peer networks with spoofed files:
http://www.siliconvalley.com/mld/siliconvalley/3560365.htm

E.  P2P Networks' Legal Strategies

SKIM these news articles about Kazaa/Sharman's legal structure:
http://www.wired.com/wired/archive/11.02/kazaa_pr.html
http://www.chron.com/cs/CDA/printstory.hts/tech/1759841
(What is Kazaa/Sharman's strategy for staying out of legal trouble?)