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List:       kde-policies
Subject:    P2P Networks: Ninth Circuit Rejects Contributory Infringement Claims
From:       Andreas Pour <pour () mieterra ! com>
Date:       2004-08-20 20:30:05
Message-ID: 41265F4D.F1669FD4 () mieterra ! com
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Since the legality of P2P software has come up from time to time on this \
list, I would like to report some good news which, just by happenstance \
;-), confirms my legal analysis of the situation:

The Ninth Circuit Court of Appeals - notably, the court which shut down \
                Napster
- has held that neither Gnutella (Morpheus)-type or KaZaa (FastTrack)-type \
P2P networks violates copyright law, either under the "contributory \
copyright infringement" or "vicarious copyright infringement" theories.

While the Ninth Circuit Court of Appeals does not have the last word on the
matter (there are 15 courts of appeals in the US, all of which are subject \
to the Supreme Court), it is the effective court of last resort for \
California and Washington.

The appeals court agreed with the district court that P2P networks are \
capable of "substantial noninfringing uses".  The court rejected the music \
companies' claims that P2P networks are in fact used primarily for \
copyright infringement, noting that the relevant standard is whether the \
technology is *capable* of a substantial non-infringing use (the examples \
cited in the opinion is free distribution by various musical groups as well \
as distribution of public domain works, specifically mentioning Project \
Gutenberg).[1]

Moreover, the court held that the P2P networks were not responsible for \
specific acts of infringement b/c they did not control central file \
indexing servers which they could monitor for infringing materials (one of \
the networks did provide an index of supernodes, each of which did provide \
lists of files, but this was found to be "incidental" and not designed to \
enable copyright infringement).  Instead, the technologies rely on \
distributed file indices (the court noted that even if the defendant P2P \
networks shut down all their computers, the P2P network users could \
continue to share files uninterrupted).

Finally, the court found the defendants did not materially contribute to
infringement b/c they lacked the ability to suspend accounts.

Thus, by keeping the use of the software - including file indices and \
network access - fully in control of the users (and of course not \
advertising unlawful uses!), the defendants were held to be complying with \
the law.

The full opinion is available at
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E9CE41F2E90CC8D788256EF400822372/$file/0355894.pdf
                
.

Ciao,

Dre

[1] "The technology has numerous other uses, significantly reducing the
distribution costs of public domain and permissively shared art and speech, \
as well as reducing the centralized control of that distribution."

-- 
  Democracy . . . not only demands the right but imposes
  the responsibility of thinking for ourselves.

  For in the last analysis, all tyranny rests on fraud, on
  getting someone to accept false assumptions, and any man
  who for one moment abandons or suspends the questioning
  spirit has for that moment betrayed humanity.

  -- Bergen Evans, "A Tale of a Tub" (1946)
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