LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS File Sharing Michael I. Shamos,...

LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS

File Sharing

Michael I. Shamos, Ph.D., J.D.Institute for Software ResearchSchool of Computer ScienceCarnegie Mellon University


Outline

• File-sharing: Napster etc. issues

• Digital Millennium Copyright Act

– DeCSS


Effect of Digitization/Internet

• Copyright used to be a matter for publishers• Now everyone can be a publisher

• Reproducing works used to be expensive• Now it’s cheap, almost zero cost

• Carrying around works used to be difficult• Now it’s easy

160 GB IPOD CLASSICPRICE: $250

HOLDS 40,000 SONGS0.5¢ PER SONG

http://www.apple.com/ipodclassic/


Effect of the Internet

• Everything is digital– Text, Music– Photographs– Movies, Video– Animation

• Broadband carries huge amounts of copyrighted content into homes and office

• High-speed wireless brings more content, likely to be visual

• National borders are meaningless


Napster

Napster

B

A B Napster

A searches F --

A downloads F --

B shares F --

A

SOURCE: MICHAL FELDMAN

B HAS FILE F

F IS OFTEN DIGITAL MUSIC

B IS WILLING TO “SHARE” THE FILE

A HAS FILES TO SHARE ALSO

F


Napster

Napster

B

A B Napster

A searches F --

A downloads F --

B shares F --

A

File index


A & B JOIN NAPSTER

A & B TELL NAPSTER ABOUT THEIR FILES

NAPSTER MAINTAINS INDEXES

F


Napster

Napster

B

A B Napster

A searches F --

A downloads F --

B shares F --

A

Where is F?

F


A ASKS NAPSTER: WHO HAS FILE F?


Napster

Napster

B

A B Napster

A searches F --

A downloads F --

B shares F --

A

Where is F?

B has F

F


NAPSTER SAYS B HAS FILE F


Napster

Napster

B

A B Napster

A searches F --

A downloads F --

B shares F --

A

Where is F?

B has F

Get F

F


A ASKS B TO SEND FILE F

F


A&M Records, Inc. v. Napster, Inc.,114 F.Supp.2d 896 (N.D. Cal. 2000)aff’d 239 F.3d 1004 (9th Cir. 2001),

aff’d after remand, 284 F.3d 1091 (9th Cir. 2002)

• Napster distributed file-sharing software and maintained an index of MP3 music available on various PCs

• Music files were not stored on Napster servers

• Napster knew that large-scale distribution of copyrighted songs was taking place

• Napster never copied or distributed one song

• Napster is useful for many legal purposes

• A&M Records wanted an injunction

• Held, Napster users engage in direct copyright infringement

• Held, Napster is a contributory infringer. Injunction granted

http://euro.ecom.cmu.edu/program/courses/tcr840/2003/napster.htm

http://euro.ecom.cmu.edu/program/courses/tcr840/2003/NapsterAppeal.htm

http://euro.ecom.cmu.edu/program/courses/tcr840/2003/NapsterAppeal2.htm


Arguments Against File Sharingper http://www.riaa.org

• Unauthorized downloading is theft• Hurts songwriters & artists• Stifles careers of emerging bands/artists• Hurts working people in recording industry & retail

music trade• Weakens anti-piracy efforts of U.S. diplomats in

foreign countries• Erodes recording Industry profits• Demeans musicians’ creativity

SOURCE: CHARLES ELFTMANN


Arguments for file sharing• CDs cost too much, only have a few good songs• Quality of music is declining• File sharing is “fair use” since it’s personal• Copyright law is the tool of large corporations• RIAA has no right to enforce US laws globally• Many artists support file sharing• File sharing promotes music and leads to sales• Internet is promotional avenue for artists ignored by radio &

MTV• Music stars are rich and arrogant• Recording industry has been exploiting artists, songwriters,

and fans for years. Time to rebalance

SOURCE: CHARLES ELFTMANN


UMG Recordings, Inc. v. MP3.com, Inc.,92 F.Supp.2d 349 (S.D.N.Y. 2000)

• MP3.com maintained a database of MP3s of copyrighted music constructed from tens of thousands of CDs

• Subscribers could access the MP3s from anywhere in the world over the net but first:– Had to prove they already owned the CD by inserting it into their

CD reader for a few seconds; or– Had to buy the CD from an MP3.com affiliate

• UMG, a copyright owner, sued for infringement• MP3.com argued fair use. No charge for subscriptions;

users already owned the CDs• “The complex marvels of cyberspatial communication may

create difficult legal issues; but not in this case. Defendant's infringement of plaintiff's copyrights is clear.”

http://euro.ecom.cmu.edu/program/courses/tcr840/2003/UMG.htm


American Broadcasting Cos. v. Aereo Corp. (Sup. Ct. June 25, 2014)

• The purpose of Aereo was to allow subscribers to watch TV shows currently being broadcast publicly

• Aereo set up a thousands of small TV receivers• When subscriber A wants a TV program, one of

Aereo’s antennas is dedicated to A. The program is received, stored in an Aereo server and streamed to A’s computer

• Aereo does not transmit that copy to anyone else’s computer



• American Broadcasting owns ABC-TV and its programs are copyrighted. It sued to stop distribution of its programs.

• ABC’s argument: the copyright owner (ABC-TV), not Aereo, has the exclusive right to publicly perform a work

• Aereo’s argument: we’re just an equipment supplier. We just emulate a TV antenna. The “performance” is by ABC.

• The District Court found that Aereo does not transmit “to the public.” It transmits to a single subscriber at a time. Therefore, no infringement.



• The Second Circuit (New York) agreed• BUT, the Supreme Court found:

– Aereo “performs” the programs– Aereo “performs” the program publicly– Aereo is an infringer

• “one may transmit a performance to the public “whether the members of the public capable of receiving the performance . . . receive it . . . at the same time or at different times.”


MGM v. Grokster545 U.S. 913 (2005)

• Grokster provides software that allows individuals to “share” files

• Indexes to the shared files are maintained on computers (nodes) maintained by individuals

• No indexes are maintained by Grokster• MGM and the other plaintiffs (including film studios

and recording companies) owned copyrighted works that were being infringed by individual users of Grokster software

• Plaintiffs sought to hold Grokster liable. (It was impractical to sue individuals separately.)


MGM v. Grokster

• The parties concede that:• Grokster had millions of daily users• Grokster users were copyright infringers• 90% of Grokster use was for copyright infringement• Grokster could be used for noninfringing purposes• Grokster software was distributed free• Grokster’s revenue came from advertising to users• Grokster promoted its use for illegal copying


MGM v. Grokster

“One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable, under the Copyright Act, for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses.”

“The record is replete with evidence that Grokster and StreamCast clearly voiced the objective that recipients use it to download copyrighted works, and took active steps to encourage infringement.”


“We … need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. … just as Sony did not find intentional inducement despite the knowledge of the manufacturer that its device could be used to infringe, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution ... The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.”

MGM v. Grokster


MGM v. Grokster

• More than 2.6 billion infringing music files were downloaded each month.

• About 500,000 copies of movies were unlawfully downloaded every day.

• Estimates of lost music sales alone range from $700 million to several billion dollars annually.

• The U.S. Register of Copyrights described the scale of copyright infringement resulting from the use of these services as “mind boggling.”


Digital Millennium Copyright Act

• Copyright Act amendments passed in 1998:– Circumvention of copy protection mechanisms– Copyright Management Information (CMI)– Limited Liability of Online Service Providers (OSPs)

• Penalty:– First offense: $500K + 5 yrs.– Second offense: $1M + 10 yrs.


Liability of Service Providers

• Service provider:– “an entity offering the transmission, routing, or providing

of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received.”

• Allows:– Transitory digital network communications– System caching– Information residing on systems at the direction of users


• Information residing on systems at the direction of users. SP has no liability if:– No knowledge of infringement– No knowledge of facts from which infringement is apparent– After obtaining knowledge, acts expeditiously to remove

infringing content– Does not receive direct financial benefit from the infringement– Has designated an agent to receive notification of

infringement

• Take-down provision– No liability for removing material claimed to be infringing

17 U.S.C. §512



• Information location tools. SP has no liability for– “referring or linking users to an online location

containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link”under same conditions as on previous slide

• Subpoena to identify infringer– “A copyright owner ... may request the clerk of any

United States district court to issue a subpoena to a service provider for identification of an alleged infringer.”

17 U.S.C. §512

Anticircumvention

• “No person shall circumvent a technological measure that effectively controls access to a [copyrighted] work”

17 U.S.C. §1201(a)

• “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

• a measure “effectively controls access to a work” if, in the ordinary course of its operation, it requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.


Anticircumvention• “No person shall manufacture, import, offer to the public,

provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that– is primarily designed or produced for the purpose of circumventing

a technological measure that effectively controls access to a [copyrighted] work;

– has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a [copyrighted] work; or

– is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a [copyrighted] work.”

17 U.S.C. §1201(a)


Circumvention Permitted

• Reverse engineering• Law enforcement• Encryption research• Security testing• Protection of minors• Protection of personally identifying information• 3D printer feedstock alteration

17 U.S.C. §1201(d)-(k)

• The Register of Copyrights can add to this list by rulemaking

Circumvention Permitted37 C.F.R. §201.40

• Audiovisual works in an educational library (for purpose of making a compilation)

• Computer programs and videogames in obsolete formats (for purpose of making archival copies)“Obsolete” = no longer manufactured or no longer reasonably available

• Computer programs protected by malfunctioning obsolete dongles

• eBooks if all editions contain access controls to prevent enabling read-aloud

• Firmware to allow wireless handsets to connect to a wireless telephone network

• Sound recordings protected by measures that create security vulnerabilities

The DeCSS Cases

• Hollywood movies are issued on DVD in encrypted form using a system called CSS (Content Scrambling System) owned by the DVD Copy Control Association (DVDCCA)

• Movies can only be played on “authorized” players (ones licensed to use CSS. Authorized players cannot copy DVDs

• A teenager in Norway (Jon Johansen) figured out how to decrypt DVDs. He created a program called DeCSS that makes unencrypted disk files from DVDs

• The unencrypted files can be compressed using a pirated MPEG codec known as DivX, exchanged over the Internet and played without a DVD player


The DeCSS Cases

• Eric Corley, a New York journalist, posted the source code for DeCSS on his website, 2600.com and linked to a download site giving an executable program and decryption instructions

• The movie industry sued Corley in Federal Court (Southern District of New York) under the Digital Millennium Copyright Act (first court test of the anticircumvention provisions)



DeCSS Issues• Is DeCSS a “circumvention device”?• Does Corley have a First Amendment right (free speech)

to post DeCSS code• Is Corley a contributory infringer of copyright by providing

DeCSS?• Is linking to a copy of the code different from posting the

code?• Every computer program is a number. Does this make

printing the number corresponding to DeCSS illegal?• Does restricting dissemination of computer source code

inhibit scientific research? See Prof. Touretzky’s site. DO NOT download or run DeCSS.


Universal City Studios et al. v. Reimerdes111 F.Supp.2d 194 (S.D.N.Y. 2000)aff’d 273 F.3d 429 (2nd Cir. 2001)

• HELD, DMCA is not unconstitutional as an interference with free speech

• DeCSS is a circumvention device• Corley is liable for violations of the DMCA• Corley is enjoined from posting DeCSS• Corley may not link to sites where DeCSS is available


RealDVD• RealNetworks, Inc. produced a product called

RealDVD that allowed an owner of an authorized DVD player to make a copy of CSS-protected content on a hard drive

• RealNetworks was an licensee of DVD-CCA• If the license agreement has been breached, then

RealNetworks is not a proper licensee and RealDVD is a “circumvention device”


RealDVD• On Sept. 30, 2008, RealNetworks sued DVD-CCA and

the movie studios in the Northern District of California (San Francisco), asking the Court to rule that RealDVD was legal. See complaint.

• Hours later, the movie studios sued RealNetworks in the Central District of California (Los Angeles) for breach of contract and violating the DMCA. See complaint.

• On Oct. 3, 2008 the SF judge issued a temporary restraining order against RealNetworks, later converted to a preliminary injunction


RealDVD• In 2009, RealNetworks appealed to the Ninth Circuit• In 2010, RealNetworks settled:

– RealNetworks agreed to a permanent injunction– RealNetworks reimbursed DVD-CCA $4.5M in legal

fees– RealNetworks refunded the price of RealDVD to

2700 users


Major Ideas

• The Internet has brought down the value of works• The cost and ease of copying makes protection of IP

more difficult• File sharing is a huge risk to content owners because

it is distributed and difficult to stop• File sharing isn’t sharing• Alternatives: fair pricing of digital content, easy

micropayment collection methods• Circumventing technology that controls access to

copyrighted works is illegal


QA&


FastTrack(Technology of KaZaa, Grokster, Morpheus, Gnutella)

supernode

SOURCE: KRISHNA PUTTASWAMY

User 1

User 3

User 2

Grokster

SOURCE: WEBNOIZE


User 1

User 3

User 2

SuperNode

SOURCE: WEBNOIZE

Grokster


User 1

User 3

User 2

SuperNode

SuperNode

SOURCE: WEBNOIZE

Grokster


User 1

User 3

User 2

SuperNode

SuperNode

SuperNode

SOURCE: WEBNOIZE

Grokster


User 1

User 3

User 2

SuperNode

SuperNode

SuperNode

SOURCE: WEBNOIZE

Grokster


User 1

User 3

User 2

SuperNode

SuperNode

SuperNodeUser 7

User 8

User 9

User 6User 5

User 4

SOURCE: WEBNOIZE

Grokster


User 1

User 3

User 2

SuperNode

SuperNode

SuperNodeUser 7

User 8

User 9

User 6User 5

User 4

SOURCE: WEBNOIZE

Grokster


User 1

User 3

User 2

SuperNode

SuperNode

SuperNodeUser 7

User 8

User 9

User 6User 5

User 4

SOURCE: WEBNOIZE

Grokster


User 1

User 3

User 2

SuperNode

SuperNode

SuperNodeUser 7

User 8

User 9

User 6User 5

User 4

SOURCE: WEBNOIZE

Grokster


User 1

User 3

User 2

SuperNode

SuperNode

SuperNodeUser 7

User 8

User 9

User 6User 5

User 4

SOURCE: WEBNOIZE

Grokster


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