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View Full Version : which is illegal: uploading or downloading?

2006-03-01, 02:14
The answer is, that neither is illegal.

But there is a common belief that downloading is legal while uploading is illegal. That is because the record companies have claimed to only be suing uploaders. And people confuse the higher risk of being sued to mean the same thing as being illegal. Hence it is considered safe by many to download but not to upload or to share. The result has been that leeching has increased, and more people feel justified in doing so. Most filesharing programs now come with the ability for another to browse one's shared list, turned off by default. It is set that way in the defaults by the developers with the hopes of increasing the user's protection from lawsuits. And the result has been that along with the increase in leeching, the lessened likelihood of having the ability to browse another peer's shared files has further diminished the quality of the filesharing experience.

This perception of downloading as being safe for filesharers and uploading as being risky, has been put forth on various filesharing sites. I quote below an excerpt from an article written 2006-01-13 by SlyckNick (http://www.slyck.com/forums/profile.php?mode=viewprofile&u=7092) titled Filesharing: The Facts and the Myths (http://www.slyck.com/forums/viewtopic.php?t=18230), which exemplifies that view:

DOWNLOADING/SHARING & BALANCING LEGAL RISKS Filesharing quite obviously means not only downloading but also uploading files using P2P technology. But if people don’t share, if everyone is a “leecher”, then there will be nothing to download.

Whilst downloading alone is obviously undesirable, it should be borne in mind that up until the present date, no action has ever been taken against downloaders. We often see headlines proclaiming “Downloading Mom Sued” and so forth, but in reality, these people have only come to the attention of the recording industries because they actually uploaded material.

Both downloading and uploading are defined as copyright infringement, with varying degrees of severity depending upon where you are situated. Whilst nobody who downloaded only has ever been threatened with action, the BPI (the UK equivalent of the RIAA) have gone further by stated on record that they currently have no plans to do so.

Recently the Elektra versus Barker lawsuit by RIAA member company Elektra against an alleged copyright infringer, has seen at least two friend of the court briefs filed by: 1. EFF (http://eff.org/IP/P2P/RIAA_v_ThePeople/elektra_v_barker/elektra-amicus-efiled.pdf), and 2. Computer & Communications Industry Association & US Internet Industry Association (http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_amicusbriefcomputercomm); in support of the defendant's motion to dismiss the case brought by the RIAA.

In its civil suits against the thousands of alleged copyright infringers, the RIAA has charged that the defendants have both reproduced and distributed copyrighted material without authorization. The charge of unauthorized reproduction is for downloading, and the charge of unauthorized distribution is for uploading.

In these friend of the court briefs, the RIAA's claim of unauthorized distribution is challenged by both EFF, and CCIA & USIIA. Collectively there are two arguments made by them in their briefs. The first argument used by both parties is that the act of uploading does not constitute unauthorized distribution, because distribution rights do not apply to internet data transmissions. And the brief filed by CCIA & USIIA takes it a step further by adding a second argument that the mere availability of files to be uploaded in a shared directory, or through discovery by way of searching, does not constitute an act of distribution.

If these arguments are upheld and adopted, then the record companies may suddenly switch strategies by targeting downloaders rather than uploaders in their lawsuits. In order to sue downloaders, and assuming that they would actually bother to attempt making their lawsuits substantive and credible, they would have to seed the files themselves with honeypots. That would bring up all sorts of problematic issues for them, such as entrapment and hypocrisy.