P2P file sharing: direct and indirect copyright infringement.

• Author: Zimmerman, Elliot M.
• Position: Peer-to-peer file sharing

Some view the Internet as an abandoned warehouse filled with free pictures, music, video, and text files fixed on a hard disk somewhere out there in cyberspace. Granted, some files are not protected by copyright law because the material contained in them has entered the public domain. In some instances, the use of certain files may constitute a fair use. (1) On the other hand, the use and sharing of other files may lead to severe civil and criminal penalties. (2)

This article sets forth the current status of the law regarding peer-to-peer ("P2P") file sharing over the Internet after reviewing the general historical principles of direct and indirect copyright infringement. (3) The scope is limited to the copyright laws of the United States. Wherever possible, Florida citations have been used to illustrate the general principles of copyright law.

The Copyright Act

Pursuant to 17 U.S.C. [section] 102:

(a) Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Pursuant to 17 U.S.C. [section] 106, and subject to the exceptions set forth in [subsection] 107 through 121, the owner of copyright has the "exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work pub]ic]y by means of a digital audio transmission.

Direct Copyright Infringement and Potential Defenses

There is little doubt that capturing copyrighted videos, CDs, works of art, and/or books to digital files constitutes the fixing of those works in a tangible medium of expression which can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. There is equally little doubt that P2P sharing of these files over the Internet, without the owner's consent or otherwise permitted under copyright law, constitutes copyright infringement by those directly involved.

In Playboy Enterprises, Inc. v. George Frena, d / b / a / Techs Warehouse BBS Systems and Consulting, and Mark Dyess, 839 F. Supp. 1552 (M.D. Fla. 1993), the court granted summary judgment for direct copyright infringement against a bulletin board service ("BBS") which allegedly did not have any prior knowledge that its users uploaded and downloaded files to its server containing Playboy Enterprises, Inc.'s pictures without plaintiff's consent or other justification. Defendant BBS allegedly removed all infringing files when it was notified and subsequently monitored the server, but the court held lack of knowledge was not a defense. The court also found no merit to the defendant's affirmative defenses of fair use.

Generally, to prevail on a claim of direct copyright infringement, a plaintiff must establish ownership of a valid copyright in the work and copying by the defendant. (4) Since direct evidence of copying is rarely available in a copyright infringement action, copying may be inferentially proven by showing that the defendant had access to the allegedly infringed work, that the allegedly infringing work is substantially similar to the copyrighted work, (5) and that one of the rights statutorily guaranteed to copyright owners is implicated by the defendant's actions. (6)

Intent or knowledge is not an element of infringement and even an innocent infringer is liable. Innocence is significant to a trial court only when it assesses statutory damages. (7)

A potential affirmative defense to a claim of direct copyright infringement is fair use (e.g., a noncommercial educational use involving a teacher making a single copy of a poem from a large collection for critique in class). Pursuant to 17 U.S.C. [section] 107 et seq., the relevant factors to be considered are: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to...