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  • From: hal AT finney.org
  • To: bluesky AT franklin.oit.unc.edu
  • Subject: Developer liability
  • Date: Wed, 14 Feb 2001 15:06:00 -0800


[Note, reply to the list at bluesky AT franklin.oit.unc.edu]

This recent Wired article,
http://www.wired.com/news/politics/0,1283,41784,00.html, mentions a
problem which has occasionally been mentioned among developers working
on Freenet:

Doug Isenberg, editor of gigalaw.com, says that people creating
Gnutella-like clients could be at risk.

"I don't think that it's clear from the Ninth Circuit's opinion that
the defendants in that situation could avoid liability," Isenberg said,
referring to creators of such file-trading applications.

"I think (the defendants would have) good arguments but I think
they're unlikely to hold up under the Ninth Circuit ruling," Isenberg
said. "Had the creators of Gnutella not created that particular
application -- by not creating it in the first place -- the creators
would have been able to block that copyright infringement."

Isenberg is talking about the legal theory of vicarious liability,
which requires anyone with the right and ability to avoid infringement
-- and a direct financial interest -- to take steps to prevent
copyright violations from taking place.

Jessica Litman, a professor of law at Wayne State University puts it
even more bluntly: "Knowing blindness is actionable."

The concern is that even if the P2P system is decentralized and doesn't
have a core target like Napster.com, the authors of the software could
be exposed to liability. The motivation on the part of content owners
would be to discourage the development of new P2P software by scaring
people away from working on those programs. Obviously the owners aren't
going to recover much money from these impoverished programmers, who
are often students working in their spare time (at least that's the case
with Freenet).

Hal




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