Subscribe with Bloglines The Privacy Lawyer: Slash asked me a question I couldn't really answer at a training sessions - why is P2P legal?

Saturday, December 11, 2004

Slash asked me a question I couldn't really answer at a training sessions - why is P2P legal?

Slash is the nickname I have given to one of our new teenangels. He is 13 years old and in 7th grade in New Jersey. I call him "slash" becasue he described himself as a history buff/technology buff/gamer and researcher. Any kid with that many "slashes" in his description of himself deserves a nickname, and "Slash" just seemed to fit.

We had about twenty preteen and young teens sitting in a classroom for a two hour training session on cybercrime, responsible use and online safety. It was being conducted with some of my existing teenangels, and a camera crew from Life and Styles TV show there to learn about cyberbullying issues and teenangels.

Our teenangels sessions are pretty free-wheeling when I conduct them. There are few questions I can't answer about kids online, cyberlaws and responsible and safe use. I've been doing this longer than most and talk with about 1000 kids a month, so I keep up to date on what theyare doing adn what they have questions about.

One of the kids asked me about music piracy online. I tried to stear the conversation to motion picutre piracy, since I think music piracy is a lost cause. (While some kids have slowed their downloading, it still remains the default method of acquiring music they want.) But they weren't having it. They knew all about music downloading. Only one had downloaded a motion picture (Sponge Bob and Incredibles).

If it's illegal to download music, she asked, why is the P2P network still up? How is that different from Napster. (They asked it differently, but that was the essential question.) I think went into my napster is different explanation, about central servers hosting the music itself and large software applications allowing you to search and connet to the drives of millions of other computers. One kid compared P2P to goolge, and I knoew they got it. It's the search and location service of P2P that makes it different, and as Google doesn't host the content, netiher do P2P. (These kids are amazing.) Someone asked another question and we moved on.

An hour later the session was over, and the kids were freed to go home, get something to drink and eat. They had sat patiently from 3pm to 5:30pm, and the promised pizza and drinks had never arrived. Most kids thanked me whiel bolting for the door, home and refreshments. :-)

But Slash stayed behind. He waited patiently for me to deal with the cameras, the parents and all the other kids. He waited becasue he had a question I hadn't answered.

"I don't get it" he said. "You explained that Kazaa and the others are just like a VCR." I told him that was correct. "And the recording and motion picture industries fought the VCR when it first came out because it could be used to steal TV and movie content, right?" he pressed on...'And you said that since the were lots of good uses for VCRs, like taping something when you're not home and family videos, that they couldn't blame the VCR for those people who used it improperly, right?" I nodded, very impressed that he had understood the underlying argument behind the Betamax cases which were used by the 9th Circuit to protect P2P industry from copyright infringement claims.

"I understand all of that. But what legitimate uses are there for P2P?" His mother stepped up to listen at this point. I explained that we hoped to share our online safety videos using P2P, and that Microsoft used it for sharing their ads and many people use if to share their own music that they have written and performed to help spread the word.

He listened and never let his eyes leave mine. He waited until i was done. and then punctured my argument. "The only thing people really do on P2P is download music, software and movies illegally. You know that. Why are people pretending that only some people misuse the technology. The P2P guys need us to misuse the technology. And is that's what they really want us to do, isn't it the real reason for the network and not misuse at all?" I was stunned.

For all my arguments, I knew that the legitimate use of P2P was a very very small percentage. I wonder if anyone has that number? When does misuse become mainstream use? And when does mainstream use that isn't discouraged by the technology providers become sanctioned use? When does it become intended use?

I am deeply troubled by this. I couldn't answer his question. I promised him that I would bring him and a few others to DC to interview the RIAA, MPAA and P2P industry groups.

I have adamentnly supported the technology and not throwing the baby out with the bathwater approach to P2P. I have written it, argued it in legal documents and done media on it. I have lectured on it and done public speaking and panels on it.

And now Slash has me confused. That confusion wouldn't have been a problem, because when I was at the session yesterday, the law said that P2P was a Betamax case and had legitimate purposes. While I don't often agree with the 9th Circuit on Internet law matters, I agreed with their decision. And I could rely on it. It was easier than working through Slahs's question. I cold say. "its the law." and be done with it. But I don't train the teenangels that way. And the Supreme Court in accepting cert has now taken the certainty out of the existing law.

I let Teenangels ask questions and if I can't answer them, put them in touch with those who can.

Why don't the P2P networks make it much more clear about downloading music and what is and what isn't legal? Why do they allow people to think that when they say the technology is legal, they don't mean downloading protected music is also legal? Why do they allow confusion over the paid premium versions of their software when parents and kids think they are paying for the right to download the software, not just ad-free versions of the software?

If they were much more clear about this, I would believe more in the abuse/misuse ruling of Betamax being applicable to P2P. I doubt it would put much of a dent in their traffic. But the kids and parents who want to obey the law wouldn't be confused anymore. I'll ask the FTC about this while speaking on the panel. I'll also see if we can get the P2P indsutry group to agree to fix this problem. I would have much more faith in heir good faith if they did it, not in the small print, but clearly. We'll have to see if that happens.

Now I can leave this before the able-minded justices at the US Supreme Court, because I can't answer Slash.
Can you?

p.s. while I can't answer him, I can help make sure that the disclosures and statements on the P2P networks are not confusing, not deceptive and not consumer fraud. Watch this space.


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