Legislation is required if there is to be certainty and fairness for defendants, andeffective legal recourse for the recording industry. As a group, the recording industryﬁnds itself facing a technology that allows infringement on an enormous scale and aCopyright Act that provides them little recourse against it. Moreover, their mostsigniﬁcant attempt to expand protection under this Act, the “making available” argument,fails, as they garner no support from the language of the Copyright Act, the torturing of the deﬁnition of “publication”, the Register of Copyrights, or the case law. Further, inthe resulting confusion the courts have at times ground to a halt and individuals havebeen subjected to terriﬁc uncertainty.
The Recording Industry and Peer-to-Peer
The RIAA speculates that the recording industry worldwide loses up to $12.5billion a year between online and more traditional forms of piracy.
A large portion of online piracy is accomplished through the use of peer-to-peer ﬁle-sharing software, nowoperating mostly on the Gnutella network.
Using pieces of software, users log on to theﬁle-sharing network from their individual computers and are immediately connected tocountless users all over the world. Once connected, users can search the computers of other users (typically, only those ﬁles contained in the users’ “shared” folder), anddownload those ﬁles of interest to them. All types of ﬁles can be downloaded to anindividual computer in this manner, and users often use this means to acquire copies of sound recordings in contravention of 17 U.S.C. § 106 (1) and (3). The RIAA has beensuccessful in suing a number of developers of peer-to-peer software developers, mostnotably in
MGM v. Grokster
, and continues to sue others.
Peer-to-peer software is unique however, in that it does not require a centralized,established, software developer. Peer-to-peer software is in fact largely self-perpetuating.The reason is the difference between the client and the network. Peer-to-peer software, asa colloquial term, describes the ﬁle-sharing client, that is, the software on the individualcomputer that connects to the network. The network can be more aptly described as auniform piece of code found in the clients that allows users to connect to each other.Software developers create clients with different user interfaces, search options, etc., all
For Students Doing Reports
http://www.riaa.org/faq.php (last visited May 9, 2008).
Study: BitTorrent sees big growth, LimeWire still #1 P2P app
, Ars Technica
http://arstechnica.com/news.ars/post/20080421-study-bittorren-sees-big-growth-limewire-still-1-p2p-app.html(April 21, 2008).
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.
, 545 U.S. 913 (2005).