RE: ISPs slowing P2P traffic...

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Subject: RE: ISPs slowing P2P traffic...
Date: Sun, 13 Jan 2008 23:19:58 -0000
From: <michael.dillon@bt.com>

[[.. munch ..]]

From a technical point of view, if your Bittorrent protocol seeder
does not have a copy of the file on its harddrive, but pulls it
in from the customer's computer, you would only be caching the
file in RAM and there is some legal precedent going back into
the pre-Internet era that exempts such copies from legislation.

"Not Exactly".. there is a court case (MAI Systems Corp. vs Peak Computer Inc
991 F.2d 511) holding that copying from storage media into computer ram *IS*
actionable copyright infringement. A specific exemption was written into
the copyright statutes for computer _programs_ (but *NOT* 'data') that the
owner of the computer hardware has a legal right to use.

If you own the hardware, a third party can, WITHOUT infringing on copyright
cause the copying of "your" *programs* from storage (disk, tape, whatever)
into RAM without infringing on the copyright owner's rights.

OTOH, it the colletion of bits on the storage media is just 'data', not
an executable program, the 9th Circuit interpretation of Title 17 stands,
and such loading into RAM _is_ actionable copyright infringement.

It is _possible_ -- but, to the best of my knowledge *UNTESTED* in
court -- that 47 USC 230 (c) (1) immunity might apply to a caching 'upload
server', since the content therein _is_ provided by "another information
content provider' (the customer who uploaded it).

I wouldn't want to bet on which prevails.
Management pays the lawyers for that,
*NOT* the operations people. <wry grin>

2

"Not Exactly".. there is a court case (MAI Systems Corp. vs Peak
Computer Inc
991 F.2d 511) holding that copying from storage media into
computer ram *IS*
actionable copyright infringement. A specific exemption was written into
the copyright statutes for computer _programs_ (but *NOT* 'data') that the
owner of the computer hardware has a legal right to use.

  I wouldn't draw any special conclusions from this case. For some reason,
Peak did not raise a 17 USC 109 (ordinary use / first sale) defense, which
would be the obvious defense to use in this case. Whether this is because
their lawyers are stupid or because the specific facts of this case prohibit
such a defense, I do not know.

  This does not seem to have been an ordinary sale, so that defense may not
have been available to them. If so, the holding in this case has no bearing
in the case where a person purchased a copyright work the ordinary way.

  But in the ordinary case, you can copy a copyrighted work if that is
reasonably required for the ordinary use of that work. Otherwise, you
couldn't lawfully color in a coloring book you had purchased because that
would create a derivative work which violates copyright.

  When you purchase a work, you get the right to the ordinary use of that
work. That's what you are paying for, in fact. By law, and by common sense,
"ordinary use" includes anything reasonably necessary for ordinary use. This
is for the same reason the right to "drive my car" includes the right to put
the keys in the ignition.

  DS