Q. What is “file-sharing?”

A. File-sharing is the process of exchanging files over the Internet. The most common forms of file-sharing are: running an FTP server or using an FTP program, utilizing Internet Relay Chat (IRC), and using Peer-to-Peer (P2P) programs such as KaZaA (which uses the FastTrack protocol), LimeWire (which uses the Gnutella protocol) or BitTorrent. Peer-to-Peer programs typically share files by default, to allow the maximum amount of sharing across the network.

 

Q. So what’s the issue?

A. Most P2P usage (which comprises a significant fraction of all file-sharing) is against the law because it involves the sharing of copyrighted materials without permission from the copyright owner, usually music (MP3) or movie files, but also TV programs, books and images.

The controversy over file-sharing and copyright has been flaring since the appearance of Napster in 1999, but more recently, in 2007 the Recording Industry Association of America (RIAA) undertook a campaign of suing people for downloading or uploading copyrighted material without permission. That campaign has now ended, but as of June 2007, the RIAA had taken action against 18 Stanford students. For the text of a Stanford lawsuit, click here (PDF). Because the RIAA’s enforcement efforts regarding file-sharing have focused on them, students and the universities that provide their Internet connections have high stakes in the debate.

 

Q. How does copyright law work?

A. Original expressions of ideas are copyrighted for a certain period of time (generally the lifetime of the author, plus 70 years), including such mundane works as the papers you write for class. Copyrighted materials are everywhere around you: songs, movies, TV shows, photographs, magazines, books, software, plays and Web sites are just a few things that are subject to copyright protection. Although it has not always been the case, today copyright applies automatically to works upon their creation, and it is not necessary (although there are good reasons) to register the copyright to be afforded copyright protection.

The copyright of a work gives the holder a limited monopoly on reproduction, distribution, and display of that work. When you buy or are given a copyrighted work, you get limited use of it, but not the right to distribute it. So, you can listen to your CD, read your book, and watch your movie, and even lend the original to a friend, but you can’t give a copy to your friend without permission from (and generally payment to) the copyright holder. You can play a recent song on the piano (assuming you know how), but you can’t perform it for an audience without permission. In the Internet domain, it is probably OK to make a copy of the CD you bought so that you can listen to songs on your iPod or other portable digital music player, but its NOT OK to give that song to your friend without permission from the copyright owner, or allow it to be shared on a P2P system that will give others access to the song without paying for it. And, it is NOT OK to download copyrighted songs, movies, books or images for your personal enjoyment without paying for them (unless you have the express permission from the copyright owner).

There are certain limitations to copyright, most notably “fair use,” which allows you to use a small portion of a work in an academic setting. So, you can legally quote a copyrighted work in a paper you write, assuming you give credit to the source. Bear in mind, though, that fair use of copyrighted material requires that your source of the material be legitimate. In a class presentation you can show an excerpt from a TV show that you have on a legal DVD, or even that you taped when it aired. You cannot, however, legally show the exact same excerpt from a pirated DVD, or a video file that you downloaded off the Internet without permission.

Of course this summary of copyright law is a simplification, and not a legal document. For details, see the U.S. Copyright Office.

 

Q. What is the DMCA?

A. DMCA stands for Digital Millennium Copyright Act. Passed in 1998, the DMCA provides “limitations for service provider liability relating to material online” and specifically contains a section that stipulates a university’s responsibilities as an Internet Service Provider (ISP). In other words, the DMCA tells Stanford what it can and cannot do with respect to facilitating the transfer of files. The University as a service provider can give its users the connections they need to transfer files, but if any illegal activity is detected, the University must guarantee that the transfers have ceased. The DMCA holds the University liable if illegal file transfers persist but limits the University’s liability if it cooperates fully with every aspect of the law.

Q. Why do the copyright owners care?

A. Copyright owners, especially the RIAA and MPAA, claim financial damages, in the form of billions of dollars in lost revenues from file-sharing activity.

Q. What are my obligations under the law, and what are the legal risks?

A. Essentially, the law stipulates that you cannot have anything on your computer that you do not own. More importantly, you cannot share any file to which you do not have the legal rights. Currently, copyright violations can result in civil penalties of up to $150,000 per violation. Theoretically, if you send 10 people a copy of a song you ripped, you might be facing statutory damages of $1.5 million dollars. In addition to civil liability, there is potential criminal liability in copyright cases– with penalties depending on the number and value of products exchanged.

Downloading (taking) and uploading (sharing) content are both fraught with risk. In the John Doe action involving a user of the Stanford network, the purported defendant had purchased most of the music, which was then made available on KaZaA. The purported defendant did not think the actions were so culpable because, after all, the purported defendant had paid for the music. Clearly the plaintiffs in the law suit disagreed with the John Doe’s assessment. On the downloading front, a student with multiple DMCA complaints raised the point that she only downloaded TV shows, which she could have legally recorded on a VCR or DVR (digital video recorder) when they aired, so where was the harm? For better or worse, the “harm” question is not really the downloaders’ question to ask. Copyright owners get to call the shots about whether their material is shared online, and the downloader is left to bear the responsibility for not respecting the copyright owners’ decisions.

Most University policies also forbid illegal file-sharing; please see the next several questions for potential institutional consequences.

 

The following list is just a sampling of Web sites offering free and legal music in one form or another. For a much more comprehensive list, visit 1 Million Free & Legal Music Tracks.

Portals

• Amazon
• archive.org – Live Music Archive
• Download.com Music
• Karadar Classical Music
• mp3.com

Record labels

• Loca Records
• Magnatune
• Opsound

Streaming sites

• AccuRadio
• ArtistLaunch
• BlueBeat.com
• SHOUTcast

 

 

• Question: What is the purpose of copyright law?
• Answer: Copyright law provides an incentive to create software, music, literature and other works by ensuring that the creator will be able to reap the financial benefits of the work.

 

• Question: What are the penalties for copyright infringement, such as making infringing copies of software?
• Answer: In a civil suit, an infringer may be liable for a copyright owner’s actual damages plus any profits made from the infringement. Alternatively, the copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504)
• Violation of copyright law is also considered a federal crime when done willfully with an intent to profit. Criminal penalties include up to ten years imprisonment depending on the nature of the violation. (No Electronic Theft Act, 18 U.S.C. 2319)
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Question: What is contributory infringement?

Answer: The other form of indirect infringement, contributory infringement, requires (1) knowledge of the infringing activity and (2) a material contribution — actual assistance or inducement — to the alleged piracy.

Posting access codes from authorized copies of software, serial numbers, or other tools to assist in accessing such software may subject you to liability. Providing a forum for uploading and downloading any copyrighted file or cracker utility may also be contributory infringement. Even though you may not actually make software directly available on your site, providing assistance (or supporting a forum in which others may provide assistance) in locating unauthorized copies of software, links to download sites, server space, or support for sites that do the above may contributorily infringe.

To succeed on a contributory infringement claim, the copyright owner must show that the webmaster or service provider actually knew or should have known of the infringing activity.

 

 

Question: Can I copy or distribute software that is out of print and has been abandoned for years?

Answer: The right to “Abandonware” is largely a myth. Even a title that seems to be abandoned or in the public domain is probably still protected by copyright, which (for works created after 1978, which includes most relevant software) lasts 75 years from the date of first publication, as specified in 17 U.S.C. 302(c). Unlike trademarks which may be abandoned when not in use, copyright owners are not required to actively market works to the public, offer technical support, or even stay in business in order to keep their protection.

 

Question: Isn’t sending my friend a music file from a CD I already own just like loaning her the physical CD?

Answer: Loaning someone your CD or even selling (but not renting) it is protected by U.S. copyright law since no additional copies are being made. However, when you send a music file to someone else, you retain your copy and an additional copy is made. This copying may violate the exclusive rights of copyright holders.

Question: Aren’t I allowed to make a backup copy of my software?

Answer: Yes, but only for specifically authorized archival purposes, as specified in 17 U.S.C. sec. 117(2). This does not authorize sharing or selling of backup copies. The rule allows transfer to another person only with the explicit authorization of the copyright owner and only if he original copy is transferred. Backups for individual use and those considered “an essential step” in using the software with an individual’s computer are also authorized.

Question: I didn’t know that what I was doing could be illegal. Am I off the hook?

Answer: No. Copyright infringement actions do not require that you actually knew that the files were protected by copyright or that your use of the files violated federal law. Claims of ignorance cannot be used as a defense to direct copyright infringement, Lack of knowledge, is, however, a defense to contributory infringement. See What is contributory infringement?

 

Question:
Do Universities provide the identity of users to copyright holders without a subpoena?

Answer:
NO

Colleges and universities receive what are known as “DMCA notices.” DMCA notices according to the Digital Millennium Copyright Act are particularized notices, which mean that a copyright holder claims ownership of specific material allegedly being distributed illegally from an Internet Protocol Address (I.P. address) through the Internet Service Provider to whom they send the notice.

Any University as a matter of policy responds to those notices by blocking the IP address. It then sends the individual to whom the IP address is assigned a letter regarding the matter. The recipient of the letter has three choices: to delete the infringing material and cease and desist from the activity; to report it as a security incident if in fact that is the case; or to file a counter-notice alleging that he or she has legal use of the material. Connectivity is restored depending on the nature of the response. In the case of intentional file sharing of infringing material the offender is referred to the Office of the Judicial Administrator. The University does not report the name of the alleged offender to the copyright holder without a subpoena requiring such identification.

 

Q: What is Peer-to-Peer (P2P) networking?

A: P2P is a decentralized type of computer networking where files reside on individual client computers rather than on centralized servers. P2P programs include Kazaa, Bearshare, ArezWarez, Bittorrent, Gnutella, DirectConnect and Azureus.

Q: Is P2P illegal?

A: P2P is not inherently illegal. However, using P2P technologies for the purpose of downloading and sharing copyrighted files is illegal under the terms of the DMCA.

Q: What are some common P2P applications?

A: Common P2P applications include ArezWarez, Azureus, Bearshare, Bitcomet, BitTornado, Bittorrent, Gnutella, Direct Connect, eMule, eDonkey, iMesh, Kazaa, Limewire, Shareaza, rTorrent, uTorrent, Thunder, Transmission, and WarezP2P.

Q: Am I at risk if I never share files when I run P2P programs?

A: Yes! Many P2P programs, like Bittorrent, share downloaded files by default. You may be sharing files even though you never explicitly configured specific files or directories to be shared!

Q: May I share music or videos that I have purchased?

A: No!

Q: Am I at risk of being prosecuted under the DMCA if I only download a single song?

A: Yes. The recording and motion picture industries will take action against users responsible for downloading a single copyrighted file.