Copyright and P2P
A History of Copyright
Until 1709, there was little protection for the author, and creators of published works. Their right for recognition of their work was controlled loosely by common law. In 1709 the British Parliament passed a law called the "Statute of Anne", this gave protection of copyright to books and other writings. As new cases arose, and new media was developed, the copyright law needed to be updated, and changed to reflect the times. Now in the age of the Internet, copyright has once again had to be changed to reflect the interests of those publishers, whose works are being abused by the Internet. This article is a brief history of Copyright laws, why copyright was needed and shows how similar cases were dealt with in the past, as new medias were developed.
Before textual manuscripts was oral literature, such as that of the Greek societies. Most sources of creativity were sourced directly to the individual creators of the work. This person would perform live in front of audiences, and the only record of the performance would remain in the memories of the audience and the creator. Shows were only preformed in front of a chosen few and would also depend on the topic of the work. In these times there was no profit in copying other peoples work When manuscript was introduced these works were detailed, and controlled by the City States in which they originated, and were specifically sponsored by the individual City States. This was a decentralized approach and the works were deemed to be property of the City State. The copying of such works was laborious and could only be done by trained people. The illegal trade of such works was then seen as too expensive because if a work were stolen, a trained manuscript copier would have to be commissioned to copy it. The Chinese invented paper and later the printing press, which made copying work a lot easier and therefore a lot more profitable. The Chinese prohibited the copying of certain works, and private societies, responsible for these works, would register them to local authorities.
When the printing press came to Europe, it caught on quickly and actions needed to be taken to deal with this, surge in material copying. Each government had there own way of dealing with it, but all had three properties in common. Firstly, there action was centralized through some government agency. Secondly, there was different rule for different media, and thirdly, the groups on charge of the different media were in control of enforcing the rules. If a work was sought for outside the society then if was hard to access and expensive too, leading to a monopoly. From these monopolies piracy flourished and copying a work became easier then getting an original. The profits made from this began to out weigh the price of piracy. The Europeans had to create new laws to make the works more widely available, but maintain the recognition deserved by the creator. The Statue of Anne, gave the creator copyrights and would be responsible for the printing or publishing of his work for a 14-year period, this was also enacted by British Parliament and was no longer centralized to small societies or groups. This law was invoked in the US in 1790. The idea of copyright bean to spread and wasn't just limited to writings, new laws were being passed which covered plays, and other performing arts. The need to have similar laws in other countries, to prevent exported works being copied, was becoming a bigger issue as time went by.  The Berne Convention of 1887 gave creators of works international recognition and protection of their works across the European Member States. This meant that exported works were protected, and the creator need only register his work with the international body and not in every country in which he desired to publish his work. Also a lot more types of media would be catered for including, novels, short stories, poems and plays; songs, operas, musicals, sonatas and symphonies; drawings, paintings, sculptures and architectural works. With the introduction of Gramophones (1911), copyright laws needed to be updated again, to give the songwriter's some recognition when their work is broadcast or played in public. As new media's were coming into existence the copyright laws needed to be revised. Film and broadcasting were add to the list of protected work in 1956, and as music became more accessible and recording equipment became more advanced, recording piracy had to be dealt with. In 1984, a new society, which was going against copyright, was set-up, called the Free Software Foundation. This was the beginning of a trend to become widespread throughout the digital ear. In 1990, computer software became copyright protected and commercial lending was prohibited. In 1998, the US amended laws, which prohibited the copying of digital media.
As is stands copyright is continually being updated and is therefore rarely up to date as soon as new media becomes available. The Internet is rapidly expanding and is an incredibly powerful medium for the publication of works. In the years to come, copyright law will be affected and updated again.
 Paul Edward Geller, Copyright History and the Future, 2000
How copyright applies to P2P
The name P2P appears to invoke paranoia and fear in both the Music and the Movie Industry, to mention just two. Both Industries are pushing large amounts of money and power into shutting down the distributors of file sharing P2P software and more specifically developing techniques to prevent copyright infringement. In 2000, we had the Napster hearing which eventually lead to the shutting down of the service and the Secure Digital Music Initiative that was suspended in 2001 to allow for further technological developments.
However, on investigation of p2p technology, the fears of these industries and anybody concerned with copyright protection seem justified. There are two main areas in which P2P and copyright come into conflict. First of all the very nature of P2P networks makes them open to copyright infringement and secondly the difficulty associated with prosecuting copyright infringers. Direct copyright infringers (i.e. the users of P2P) due to scale and distribution of users in the network and indirect infringers due to lack of appropriate legislation.
P2P networks attempt to take advantage of the considerable resources available on the fringes of the network.
"At a conservative estimate, the world's Net-connected PCs presently host an aggregate ten billion Mhz of processing power and ten thousand terabytes of storage, assuming only 100 million PCs among the net's 300 million users, and only a 100 Mhz chip and 100 Mb drive on the average PC." Clay Shirky "What is P2P. And what it isn't
It is clear that there are very valuable resources here and it would appear to be desirable to share them. However, it is not that simple, the Internet is a heterogeneous network and the pc's we're taking about usually have temporary Internet connections and dynamic IP addresses.
Sharing processing power across such a heterogeneous network is quite difficult to do without security risks and it is questionable whether it is/will be useful to the ordinary pc home user. Sharing of storage space is a more achievable task as demonstrated by napster, gnutella, etc.
However the features of P2P networks mean that only certain types of data will be shared. The machines are not persistent on the network so it is desirable to only share data that may be replicated on more than one machine. The source of the data will probably not be unknown so only data where trust issues can be ignored should be shared. These two issues limit the sharing of files across P2P networks to media like music and film. It is quite likely that music titles, even obscure ones, will appear on several computers on a P2P network so if one source is unavailable there is always another to switch too. The quality of the music title found doesn't matter so much as worst case the user can't listen to it and even then the user can always download it again from a different source.
The legal issues associated with P2P are quite complex and need to be dealt with on an international scale. There are millions of people with access to the Internet who could all potentially use some P2P technology to directly infringe copyright law and there appears to be quite a large group who do. So it would be a huge task for any artist/retailer/company or even a group of such people to get such a large number of people convicted of copyright infringement.
The makers of P2P technology would also be difficult to prosecute. The Music Industry has had some resent success at this most notable of which is the closure of Napster. However, Napster was an American company whose technology was not truly P2P as it used a more centralised algorithm. These two factors helped the Music Industry prosecute Napster. If the P2P network used a more distributed system where the provider of the P2P technology had less ability to monitor/control what was being shared the prosecution would have been more difficult if not possible under current American law.
The most significant problem in relation to catching copyright infringers who use P2P is the distribution of users across international borders. The Law that shut down Napster may not apply in Afghanistan or Italy or somewhere in the internet connected world and P2P provider can easily set up in whatever country they won't be breaking the law in.
The dispute between the Parties concerned with copyright infringement and P2P technology seems destined to continue well into the future. In the latest round, U.S. Rep. Howard L. Berman has proposed a bill which would allow companies who have had there copyright infringed using some P2P network, to attack that network. The nature of P2P technology brings it into conflict with copyright law and will potentially be a great influence in the evolution of these laws.
Why do we need international copyright law?
We need this in order to protect the creators of original works. They should have the right to put their name to the work and have the opportunity to benefit financially from their work. There needs to be a means to prevent other people from benefiting off of the creators of certain works without their express consent.
Where do the laws come from?
The area of international copyright is a very tricky one. A consensus has to be agreed upon for a common law. There are two well-known conventions for copyright. These are the Berne Convention for the Protection of Literary and Artistic Works and Universal Copyright Convention (UCC). There is also the WIPO Performances and Phonograms Treaty of 1996. The people who are protected under this treaty are performers. Performers are defined as "actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore; "
The countries that signed up to these conventions have agreed that if some item is copyrighted in a certain country under the conditions set out in the convention then it is protected by copyright laws of the of the other countries. Any country may also add to the international copyright laws to strengthen their own laws.
The items that are protected by copyright law under the Berne convention can be found at this link "http://www.law.cornell.edu/treaties/berne/2.html"
It is important to note here that the items to be copyrighted have to have been recorded in some form to be protected by international copyright laws. For example if a band play a song on stage that was never physically recorded either on paper or on some other storage media then the song is not protected by copyright under international copyright laws. Any person that heard the song may reproduce it without breaking international copyright law.
Another interesting point to note is that the creator of an item may not be considered the "author" of a work with regard to owning the copyright. This may arise if the creator is working for a company at the time the item was created. For example if a journalist creates an article then the newspaper company that employs the journalist is the owner of the copyright unless it is stated explicitly in a contract between the employee and employer that states otherwise.
How long is a work protected by copyright (Berne Convention)?
The work is protected for the lifetime of the author plus fifty years after his death. If a pseudonym is used for the author then the work is protected by copyright for fifty years after the work has been lawfully been made available to the public unless the identity of the author is no doubt in which case it is the lifetime of the author plus fifty years. Countries in the convention may lengthen the protection but it may not exceed the lenth of time for which the work is protected in its country of publication.
There are a few actions that would constitute as copyright infringement. The first and most obvious one is to copy or reproduce the work. This is the basic thing that copyright law is trying to prevent. Another thing that constitutes an infringement is to create a new work derived from the original work. An example of this would be translating a work or transferring it from one medium to another. The first two items are fairly obvious infringements on copyright laws but there are others. A less obvious infringement is the selling of a piece of work for the first time without the consent of the owner of the copyright. There is no problem reselling a piece of work. You cannot display the work in public (doesn't apply to visual art).
Challenges to International Copyright Law
There are many new challenges to the existing laws on copyright in the world today. With the advent of the Internet it is now easier than ever to reproduce material. There are many grey areas that need to be further looked into. For example there are countries that are not party to an international copyright convention. It would not be illegal for citizens of these countries to place copyrighted material on the Internet. The problem arises when a citizen, of a country that protects this material under copyright laws, tries to access this material and download it. What is the best way to protect the owner of the work?
Copyright Basics - http://cyber.law.harvard.edu/property/library/copyprimer.html
Berne Convention - http://www.law.cornell.edu/treaties/berne/overview.html
Former Rulings in P2P copyright cases.
Most people would regard this case as a good starting point when discussing the implications of copyright infringement and P2P. In 1984, Sony developed and manufactured the Betamax machine. It was, in effect, a predecessor of the modern VCR player, allowing people to tape television shows and watch them at a later time. This was bad news for companies who advertised on television, because this new device allowed people to fast forward through their ads, greatly reducing their value. The companies wanted to pay the networks less to screen the ads, so the networks wanted to pay the studios less for licensing fees. The studios, in turn, decided to take Sony to court. So in 1984, Universal Studios representing the other major studios demanded an injunction to stop Sony from producing and selling these troublesome Betamax machines.
The studios case was based on the fact that this so-called 'time-shifting technology' infringed on the copyright of the television shows and films that it was used to record. In the end, the Supreme Court ruled that the manufacturer of a device used for copyright infringement could not be held liable as long as the device in question had substantial uses that were non-infringing. They also ruled that although recording shows to be viewed at a later time was legal, archiving these copies was not.
This ruling has implications regarding peer-to-peer copyright issues in that it was used as part of Napsters defense against accusations of copyright infringement by the RIAA. The debate over this defense strategy however was whether a ruling regarding a manufactured product could be applied to a piece of software, and also whether the Napster program really had a 'substantial' amount of legal uses.
Since its inception in 1999, Napster has proven incredibly popular with music fans around the world as a way of collecting and trading songs. Unsurprisingly it was not as popular with the record labels, who, in December '99 banded together to file a huge lawsuit against the company. The Recording Industry Association of America filed suit against Napster accusing them of encouraging the duplication and distribution of copyrighted material.
In its defense, Napster cited a number of acts including the Digital Millennium Copyright Act claiming that as an "Information Location Tool" it cannot be held liable for copyright infringement. It also referred to the Sony Vs Universal Studios case (discussed above) by stating that the majority of transactions carried out on Napster were non-infringing and therefore it could again not be held liable for those that 'abused the system'.
Unfortunately for Napster these arguments were shot down in court. According to RIAA lawyers, between 70 and 80 percent of transactions on Napster were illegal, which negated Napsters main defense. In August 2000 Judge Marilyn Hall Patel issued an injunction ordering Napster to prohibit the transfer of copyrighted material using its file-sharing program. Napster immediately appealed the injunction to the Court of Appeals for the Ninth Circuit, which allowed Napster to continue to operate while the continuing trial was in progress.
In February 2001, after much arguing and counter-arguing, the Court of Appeals finally handed down its ruling on the Napster case. The panel (comprised of three judges) declared that Napster was indeed liable for copyright infringement and must immediately stop the transfer of copyrighted material, effectively shutting down the Napster service much to the dismay of its some 30 million users.
Regarding the future of P2P and copyright issues, most people would agree that the battle is far from over. While the RIAA did manage to effectively stamp out the illegal activities of Napster, it seems as if they merely opened the floodgates for a host of other servers. Now hoards of P2P programs such as Gnutella and Kazaa are springing up left, right and centre. While at the moment RIAA is concentrating on stamping out Napster clones rather then these new services (the difference being that Napster type programs have centralised servers whereas this new generation of programs are de-centralized and much harder to target), they claim to have a strategy that they will implement if these programs continue to grow in popularity.
On the other hand new parties are now emerging on the scene to counter this new wave of programs. The Motion Picture Association of America has joined the fight to stop films from being traded in DivX form. It has begun contacting the ISPs of Gnutella users issuing warnings and sending thousands of 'takedown notices' every month. Even with all this action, the corporations are definitely fighting a losing battle. Unless some solid legislation comes in soon, P2P file sharing programs will continue to grow, trading music, movies, software, pornography and even books. The legal dams relating to copyright are breaking down and good luck to any company that wishes to stand in the way of the flood. They'll need itů
1) Peer-to-Peer Copying - By Christopher Yang and William W. Fisher III.
2) Recording Industry Association of America
4) EFF Peer-to Peer Copyright White Paper
How to control P2P copyright infringement.
Laziness, Impatience and Hubris
The television showed the A-Team, Care Bears, Super-Ted and Alf. Kylie and Jason on the radio, maybe even Michael Jackson. Some of the radios looked like little orange juice cartons. Soda Streams were the height of cool. Yuppies had mobile phones. And in the corner in some houses the odd 48K Spectrum or similar may have been found. Hours were spent hunched over the radio and tape player (also pretty cool) waiting for favourite songs to start, index finger ready, poised above the record button, hard work.
With the advent of P2P technology, and in particular programs such as Napster, people could ideally download whatever files they liked, usually music or films, in a wide array of formats, directly to their computer. The reality however, although not quite as cumbersome or work-intensive as the eighties approach, was hardly perfect. The people who had the songs you wanted always seemed to have a 56K modem, and if you were in the same unfortunate position, it could take hours to download even one song. The chances of the download completing successfully, logically enough, seem to be pretty much inversely proportional to the amount of time the connection had to be maintained for. A high-speed connection meant a higher chance of a successful download, as there was less chance of Tad in Australia deciding to go out for food, or drinks, or to the beach, all of which would have the same inevitable conclusion of him severing his Napster connection. Those of us with slower connections frequently being left with the first half of a song, while Tad went to the beach. Many people quickly decided they had better things to do with their time. I buy CDs, and 'grab' them to mp3 format on my computer, to enable me to listen to music while freeing up my CD drive, or download them onto to a MD and listen on the bus. I think this is fine, as I have paid for the CD. It just suits me to be able to change the format of the music.
I firmly believe that there are quite enough lazy people in our midst to keep the music and film industries alive and healthy, but of course, the powers that be apparently see things differently.
One of the most topical methods of combating copyright music infringement via P2P networks is the distribution of copy-protected CDs. This prevents consumers from "ripping" the music onto another format e.g.mp3, and subsequently freely distributing it online. John Halderman of Princeton University recently researched the methods used by three different copy-protected CD types, finding that they were all based on the same principle. This principle was essentially that the method an audio CD player uses to access the track content data, is different to that used by a PC CD-ROM drive. The audio CD player reads just one table of contents, located at the start of the disc, which contains all the information about the tracks on the disc. A PC recorded disk has several tables, presumably to take into account the dynamic nature of its contents, and hence a PC CD-ROM will begin at the last of these tables and will read back from the last table to the first. The current method of copy-protecting CDs exploits this fact. By adding "pretend" tables in places other than at the start of a copy-protected CD, in addition to the bona fide table at the start, the PC CD-ROM drives are fooled into trying to start searching for data at the last of these tables, which should contain a pointer of some type back to the last table. There is no such pointer back to the previous track, and hence the PC CD-ROM is unable to play the CD as it does not know where the music data is stored, and has most likely read only noise. So, now we have CDs that will play only in audio CD players but not in PC CD-ROM drives. Obviously this problem is easily solvable as it is simply a software issue of whether the player/ROM should begin searching for table(s) at the start or end of the CD, and according to Halderman "this will permanently undermine the usefulness of audio CD copy prevention". Momentarily disregarding the technical issues, consider the person who may not have purchased a dedicated sound system, and is content with playing CDs on their computer, or the poor unfortunate that has just discovered the CD player in their car is actually of the evil PC variety. These people, at least for the time being, may quite easily find themselves with legitimate copy-protected CDs that, ironically, they will be able to play less freely than "burned" CDs.
Philips Electronic have distanced themselves from the copy-protected CDs, stating that copy-protected CDs should be labeled as such, and even going so far as to imply that the discs are not really compact discs, and hence should not be sporting the ubiquitous CD graphic. Gerry Wirtz (general manager of Philips' copyright office) has also said that the company plans to produce disc drives that would be able to both play and "burn" copy-protected CDs, sidestepping the DMCA (Digital Millennium Copyright Act) by claiming that the "protection" is simply a way of stopping music playback and is not really a copyright protection mechanism. BMG recently released a Midbar Cactus Data Shield copy-protected album (White Lillies Island by Natalie Imbruglia) into British record shops. These CDs were quickly found by customers not be playable in PC CD drives, and replacement CDs without the offending copy protection were provided for customers upon request. Meanwhile, in the US, Fahrenheit Entertainment was sued over a year ago, for selling unlabeled copy-protected discs. The customers are unhappy about the approach that is being taken to copy protection, as it is being done at their expense.
According to Mike Godwin of www.law.com the content industry wants it built into computers, and other digital devices, such as Palm Pilots and mp3 players. The industry also wants it built into software, operating systems, Web browsers, and routers." This approach is exemplified by the TCPA (Trusted Computing Platform Alliance) and Microsoft Palladium technologies. The TCPA is comprised of Compaq, HP, IBM, Intel and Microsoft, forming an alliance that will "provide for improved trust in the PC platform". The TCPA hardware will first of all consist of a "Fritz" chip attached to the CPU which will essentially restrict what the user can do on his/her own computer. Only TCPA approved hardware and software will be allowed. TCPA in addition with Palladium will, as Ross Anderson puts it, provide " a computing platform on which you can't tamper with the applications, and where these applications can communicate securely with the vendor". So basically both hardware and software limitations will combine forces to prevent ripping and playing copyright material. Quite possible that burners will not be on the TCPA list of approved hardware devices, and mp3 players that play ripped music will not be on the list of approved software, as will the software to control the CD burner drives one imagines. Microsoft will know if you have a "cracked" copy of XP Pro running, and the BSA (Business Software Alliance, of which both Adobe and Microsoft are members) may come knocking. An important question raised in Anderson's article is that of eBooks, for example, which after publishing, could be unpublished using TCPA. This is even worse than the picture painted in Orwell's 1984 when books and newspapers were manually destroyed or edited. By simply removing the eBook from the list of approved books, the book would simply not exist anymore. Did I mention yet that the DMCA would make bypassing the Fritz chip illegal, at least in the US? I for one know this sounds like bad news, but as a Linux user my initial feeling would be to relax, get a cup of Lavazza, and enjoy a slight sense of smugness that they (you know who....) can't touch me. I stay with Linux, continue to use open source software, and I'm home safe. Not a chance. Open source software will have to be certified with each modification by the TCPA, at considerable expense, which will pretty much means less open source software. As programmers don't profit from writing this software, they will be much less inclined to write it if they must actually pay for the pleasure. As a result commercial software will become the only option, and idealism vanishes, much like the "unpublished" eBook. The question of anti-trust seems to have been avoided by forming an alliance, there being no wrong-doing if everyone is doing it?
There are many possible ways of attempting solving the problem of piracy, but the successful one will be that which is in fact just, and does not constrain what the law-abiding citizen may legally do to a ridiculous extent. I suggest that the real solution may not be technological, but human. Maybe a real open source community could be the answer. Why watch Disney when you could watch independent films, listen to Natalie Imbruglia when you could listen to independent music (or anything else, in fact)? I talk not of free music, but reasonably priced music. Maybe CDs for five euro instead of fifteen or twenty. Are the most commercially successful bands really the best? Surely there is room for two different cultures in the world, one supported by non-TCPA motherboards. Why must idealism be only in words, and not code and actions? Why not those who still believe in basic human decency and integrity, not to mention laziness, impatience and hubris, in each different sphere, try to find some reasonable way of communicating their words, music or pictures with slightly more modest profit margins, and slightly less sinister overtones? I ask you.