Academic journal article The Journal of High Technology Law

I Want My MP3: Secondary Copyright Liability in a Hidden Peer-to-Peer Network

Academic journal article The Journal of High Technology Law

I Want My MP3: Secondary Copyright Liability in a Hidden Peer-to-Peer Network

Article excerpt

"[Y]ou can run but you can't hide."--Cary Sherman, President RIAA (2)


A worldwide technology arms race is underway between artists and their fans. (3) The fight is over copyrights, and the arms are the technologies that control, or destroy control, over the copyrighted works. (4) The artists have developed "Digital Rights Management" (DRM) technology to lock down their works, while their fans are using anonymity-protecting Peer-to-Peer networks to hide from copyright enforcement. (5) This Note focuses on the copyright liability for the developers and users of Freenet, an anonymity-protecting Peer-to-Peer network. (6)

This Note first gives an overview of secondary copyright liability, discussing contributory and vicarious infringement. (7) Peer-to-Peer (P2P) technology is then discussed, along with cases addressing this technology. (8) Freenet is finally discussed, with the legal implications for those who develop and those who use Freenet. (9) This Note proposes that users of Freenet, but not the developers, may be liable for secondary copyright infringement. (10)


Title 17 of the United States Code gives the owner of a copyright the exclusive control of the reproduction, distribution, display, performance, and derivative works of their copyrighted work. (11) Under the statute, the owner of the copyright has standing to sue those who violate any of these rights directly. (12) Under the judicially-created doctrines of contributory and vicarious liability, copyright holders may sue those who are liable for the infringement of a third party. (13)

A. Contributory Copyright Infringement

"[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer." (14) A court will find contributory infringement if the copyright owner has established first, direct infringement of the copyright, second, knowledge of the infringement, and third, material contribution to the infringement. (15)

1. Occurrence of Direct Infringement

The copyright holder is given an exclusive right for a limited time to control the copying of the copyrighted work. (16) When the work is copied, the person who illegally copies the work is a direct infringer of the copyright. (17) In the context of Peer-to-Peer (P2P) networks, this usually means violating the right of control over reproduction and distribution when a copyrighted music CD is copied into MP3 format and distributed over the P2P networks. (18) To establish copyright infringement the copyright owner must establish both ownership of the copyright and the occurrence of an infringing act. (19) The alleged infringer may then rebut the charge of infringement. (20)

The judicial doctrine of fair use in copyright law is codified; the governing statute provides that some copying, which would ordinarily constitute infringement, is not infringement. (21) If no direct infringement occurred, then there can be no secondary copyright liability. (22) In Sony Corp. of America v. Universal Studios, Inc., (23) the issue presented on appeal to the Supreme Court was whether Sony was liable for contributory infringement, but the Court resolved the issue on the basis of whether or not Sony's customers were actually infringing the copyrights. (24) The Supreme Court concluded that the majority of Sony's customers were only copying the material so that they could view it at a different time, and that this practice, called time-shifting, falls within the fair use provision of the copyright act, and is therefore not infringement. (25) Sony could not be held liable for contributory copyright infringement where the act of direct infringement did not occur. (26)

Sony was selling a recording device called the Betamax, which was capable of recording copyrighted television broadcasts. …

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