Intellectual Property in
Peer-to-Peer Networks
Artsiom Yautsiukhin
Natallia Kokash
Intellectual Property Law, 18 October 2005
Contents
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Introduction
Copyright and P2P file sharing
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Copyright Infringement
Betamax defense
Law Cases
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A&M Records v. Napster
The Aimster case
MGM v. Grokster
BUMA v. KaZaA
MPAA and RIAA v. The People
Defense strategies
Conclusion
Introduction
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Peer-to-Peer (P2P) - a network in which
each computer shares and uses devices
on an equal basis (Ex: Napster, Aimster,
Grokster, KaZaA, Scour, Audiogalaxy).
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P2P is used for the exchange of text,
image, sound and video files. These
include works protected by copyright.
Copyright & P2P design
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Copyright law concerns:
• Users of P2P networks
• Developers of core P2P file-sharing
•
technology (underlying protocols, platform
tools, client implementations)
Developers of ancillary services for P2P
(providers of search, security, metadata
aggregation)
P2P and Copyright Infringement
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The end-users
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Direct Infringement
The P2P tool maker ~ ”wheel man”
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Contributory infringement
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Vicarious infringement
• Direct Infringement
• Knowledge
• Material Contribution
• Direct Infringement
• Rights and Ability to Control
• Direct Financial Benefit
Betamax defense
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Sony v. Universal City Studious: Sony
Betamax VCR is capable of several noninfringing use (time-shifting of television
broadcasts)
“Betamax defense” - to prove capability
of non-infringing applications,
irrespective of the proportion of infringing
to non-infringing uses
The Napster Case
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Contributory infringement:
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Direct Infringement: (at least) some users
Knowledge: company e-mails, song titles in promotional
screen, experience
Material Contribution: site and facilities
Vicarious infringement:
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Right and Ability to Control: Napster retains the right to
block a user’s ability to access its system
Financial Benefit: Napster’s value is derived from the size
of it’s user base
The Aimster Case
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The same claims as in the Napster case
Aimster prospect: the network traffic was
encrypted allegedly making it impossible to
know what files were being shared by endusers
Betamax defense failed because:
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Aimster failed to introduce any evidence of noninfringing uses
Had clear knowledge of infringing activities (“tutorials”
encouraged users to download copyrighted music)
The Grokster Case
(+ KaZaA, Morpheus)
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Betamax defense: project e-books,
promotional music videos, video game demos
Contributory infringement:
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Knowledge: decentralized architecture, did not have
knowledge (e.g. Xerox)
Material contribution: did not provide “site and
facilities”, very limited involvement with the network
Vicarious infringement:
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Right and Ability to Control: no ability to supervise and
control users
The KaZaA Case
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Licensing agreement to listen music within the
network without downloading
Negotiations were interrupted by Buma 
copyright infringement by KaZaA
The Court obliged:
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Buma to continue the negotiations
KaZaA to redesign the system
But KaZaA succeeded in appeal!
Decentralized architecture!
MPAA and RIAA v. The People
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The Motion Picture Association of
America (MPAA) - lawsuits against
individuals using P2P file-sharing
software to access movies.
Recording Industry Association of
America (RIAA) - lawsuits against
individuals who use file-sharing software.
• 6,000 lawsuits against music file sharers
since September 2003.
Defense strategies
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“All my users are innocent”.
“Capable of substantial non-infringing uses”.
“Safe harbors”
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transitory network transmissions
caching
storage of materials on behalf of users (remote file
storage, web hosting)
provision of information location tools (providing links,
directories, search engines)
Conclusion
Lessons for Peer-to-Peer developers…
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Make and store no copies.
Your two options: total control or total anarchy.
Better to sell stand-alone software products than on-going
services.
What are your substantial non-infringing uses?
Do not promote infringing uses.
Don’t make your money from the infringing activities of
your users.
Give up the EULA.
No direct customer support.
Be open source.
References
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Intellectual Property - Peer-to-Peer (P2P) File
Sharing, http://www.eff.org/IP/P2P
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“IAAL*: What Peer-to-Peer Developers Need to Know
about Copyright Law”
“The Electronic Frontier Foundation’s (EFF) Efforts to
Protect P2P “
“MGM_v_Grokster”
“Napster”
“BUMA_v_Kazaa”
“MPAA v. The People”
“RIAA v. The People”