The Dangers of Downloading: Nimmer on Peer-to-Peer Sharing

by Mike Mintz on May 24, 2010 · 0 comments

in Martindale-Hubbell Connected

I first met David Nimmer in the summer of 2004.  He was visiting our Newark office to give a talk about copyright in the digital age and a new update to his famous treatise Nimmer on Copyright.  As a presenter, David was as brilliant as he is a lawyer: dynamic, knowledgeable, and funny (yes funny).

You now have the opportunity to join a live presentation with David Nimmer and see what I’m talking about.  Register for our free CLE webinar*** happening on June 16, 2010 at 12pm EST where David will talk about people getting sued for using the Internet – pretty scary stuff (read more below).

***The webinar is for Connected members only, so if you are not yet a member, register today – it’s 100% free – and you get a free CLE webinar with David Nimmer!

Dangerous Downloads

Where Courts Hold on Peer-to-Peer Sharing

Have you ever downloaded or uploaded something on the Internet?  We all have, but in today’s world, where content is always just a click away, it can be difficult to determine which activities can get you in trouble.  There have been numerous law suits against ordinary users.  Whether you are a lawyer with clients who use the Internet, or if you are a client yourself, understanding how to avoid getting sued by record companies and motion picture associations can help you feel more secure in consuming content online.  Most important, the courts are split on just how much you have to do to be liable – how they ultimately decide can change the way we all use the web.

Internet Users Sued By RIAA and MPAA

This introduction from a paper by the Electronic Frontier Foundation (“EFF”) titled “RIAA v. The People: Five Years Later” says it all (emphasis added):

On September 8, 2003, the recording industry sued 261 American music fans for sharing songs on peer-to-peer (P2P) file sharing networks, kicking off an unprecedented legal campaign against the people that should be the recording industry’s best customers: music fans.  Five years later, the recording industry has filed, settled, or threatened legal actions against at least 30,000 individuals.  These individuals have included children, grandparents, unemployed single mothers, college professors—a random selection from the millions of Americans who have used P2P networks. And there’s no end in sight; new lawsuits are filed monthly, and now they are supplemented by a flood of “pre-litigation” settlement letters designed to extract settlements without any need to enter a courtroom.

Written in 2008, the paper goes on to describe the history of Peer-to-Peer (“P2P”) sharing and the response of the Recording Industry Association of America (“RIAA”).  Depending on which side of the debate you take, they are either on a crusade to punish fans or a mission to protect their copyrights.  The Motion Picture Association of America (“MPAA”) has since joined the fight and seeks to stop the sharing of their content as well.

What Is Peer-to-Peer Sharing

Peer to Peer sharing involves any distributed network composed of users that make a portion of their resources available to other users on that network.  The RIAA and MPAA law suits revolve around “file sharing,” and P2P first became popular with use of Napster and other music sharing programs.  Today, some of the more popular programs involve Bit Torrent clients where users download and upload tiny pieces of a file and link sharing sites like Side Reel.

The P2P Debate for Lawyers and Clients

June Event on Martindale.com Connected

Join us for an event in June with David Nimmer, author of the prestigious treatise Nimmer on Copyright along with other experts as we analyze the P2P debate and propose solutions for lawyers and clients.

The highlight of our event is a free CLE webinar, which will be presented exclusively to registered members of our community on June 16, 2010 at 12pm EST. The following distinguished panel will present:

  • David Nimmer, Of Counsel at Irell & Manella LLP and author of Nimmer on Copyright
  • Peter Menell, Professor of Law at Berkeley Law and Director, Berkeley Center for Law & Technology
  • Hosted by Jason C. Kravitz, Partner and Practice Group Leader of Brands & Creations at Nixon Peabody

We are lining up a host of guest bloggers, discussion forums, and downloadable content that will cover the topic of peer-to-peer sharing and other Internet-related copyright issues.

David Nimmer on Peer-to-Peer Sharing

When I first asked David about the P2P issue, he wrote me this short blurb, which I think is worth sharing here as it sets the tone for our event:

Recent years have seen massive filings of copyright infringement suits for peer-to-peer sharing. In fact, more cases have been filed in that space (P2P) than in all other copyright domains combined (emphasis added) . Courts have confronted a welter of defenses, centered on whether uploading links to such files implicates the copyright owner’s exclusive right to “distribute” the work to the public.

Some courts have construed the term “distribution” as synonymous with “publication,” whereas others have disagreed and required proof of an actual act of distribution. A host of issues has arisen, implicating such issues as whether purchases by undercover investigators working for the copyright owner count as infringement, or are to be deemed ipso facto authorized and hence non-infringing, as well as the measure of circumstantial evidence that could prove actual distribution. Hanging over the whole field is the specter that a losing defendant might end up saddled with tens of millions of dollars in statutory damages.

To me, the scariest part of David’s write up on the issue is that courts are currently debating whether the sharing or uploading of links triggers the copyright owners right of distribution!  How many times have you uploaded a video link to a social network, blog, or email?  According to some, you are infringing on copyrighted materials and potentially subjecting yourself to a law suit.  Our event will help you identify these issues and present insights as to where this debate is ultimately heading.

Not yet a member of Connected?  Join for free today!

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