Case Analysis: Internet services
Identify two reported cases that have impacted the evidentiary process or analysis in digital forensic cases; student will cite the case and summarize the issue before the court; the majority of the analysis should be dedicated to the impact the cases had on the application of digital evidence in the criminal justice system or the manner in which the digital forensic analyst performs his/her function
- 4 full pages minimum (approximately 2 pages per case)
- Paper should be initiated with an introductory paragraph and ended with a conclusion
- Cover page (not included in page count): course number, course title, title of paper, student’s name, date of submission
- Format: 12 point font, double-space, one-inch margin
- Bibliography/reference page (not included in page count): APA citation style, textbook included as a reference
It is critical to use the terms and concepts of evidentiary process or analysis in digital forensic cases. As you know, there are professional ways to implement an analysis using established policies and procedures.
The Internet has provided people with numerous opportunities such as communication, search, and file sharing. Thus, peer-to-peer file sharing became very popular. The basic principle of peer-to-peer file sharing technology is as follows: users install a special software program in order to locate computers on the Internet that have necessary files. The search is performed on the computers that have such software installed as well. The computers in such improvised “network” are not servers in the traditional understanding so they are called peers (Carmack, 2011).
Conceptually, the process of peer-to-peer file sharing system use is as follows: a user runs special software and searches for a file; the software sends queries to other computers with the same software; after the successful completion of search procedure, the file starts downloading; other users of this network can download this file from a user’s computer. It is important to add that file-transfer load is distributed between computers, having the same file and that are online at the downloading moment (Carmack, 2011).
However, such services have brought new problems to legislation and business areas. The idea of sharing files over the Internet was applied to the files protected by the copyrights too. Recording companies, movie production companies, and other producers of copyright-protected information became utterly concerned by the situation when their production became available on the Internet for such a broad audience as peer-to-peer users. The need in regulations of the situation became crucial.
Safe Harbor Provisions
The modern Internet contains files of any kind. Most of them are copyright protected. However, how can a website be responsible for placing copyright protected materials by users on its webpages, if it happens unwillingly? In order to solve the issues of such kind, the legislation documents in different countries around the world were changed. Thus, in 1998 the United States issued the Digital Millennium Copyright Act into Title 17 of the United States Code (Click & Copyright, 2011). It was called the Online Copyright Infringement Limited Liability Act. According to this provision, it “limits the liability of an Internet service provider for user-created copyright infringement so that the company itself is not at fault for a random comment someone posts” (Click & Copyright, 2011).
One of the main conditions of protection by Safe Harbor Provisions is to provide all legal information regarding a website in the easy accessible place. It is necessary to perform such act, because a copyright holder must be able to address to the websites holder with a request to solve the issue with inappropriate material placement on this website. Otherwise, the website holder (a company, usually), will lose “protection” and can be accused of intentional copyright law infringement.
MGM vs Grockster
In the case of MGM vs Grockster in 2005, MGM initiated the lawsuit, accusing Grockster of infringement of the copyrights by the distributing peer-to-peer file-sharing software. MGM stated the following: “over 90% of the material exchanged using Grokster’s file-sharing software is copyrighted material and therefore, copyright infringement occurs every time users exchange the information” (Law Duke, 2004). The district court declined to satisfy the claim, justifying it by the liability of the present distribution activities, conducted by Grockster.
MGM appealed this conclusion to the Ninth Circuit Court of Appeals. This institution refused to acknowledge Grockster as guilty, justifying this decision by the peculiarities of the system created by Grockster. In brief, Grockster’s specialists were not able to notice any infringement before it happened, because there was no search index database present on the central server of the peer-to-peer network. All indexes were stored on the users’ computers. Therefore, they were not able to filter the content by any means. MGM lost the case but attracted additional attention to the issues created by peer-to-peer file sharing networks (Law Duke, 2004).
A&M Records, Inc. v. Napster, Inc.
In this case, A&M Records and some other recording companies initiated a lawsuit against Napster for intentional infringement of their copyrights. Napster distributed software that allowed users to share music files on the Internet. In addition, this software included a centralized search engine that provided users with the opportunity to locate desired files on servers and peers (Douglas, 2004).
The Ninth Circuit Court concluded that in this case at least some of the Napster users were the direct infringers because of their activities connected with reproducing and distributing copyrighter music without any permission. The court also concluded that authorities of Napster were able to block users from accessing the network that was rather sufficient to influence the situation with infringement. Finally, Napster had profit from these activities. Therefore, the case was closed with the decision to satisfy the demands of A&M Records to shut down Napster (Douglas, 2004). It means that certain changes have happened in the area of copyright materials protection, illegally distributed by peer-to-peer file sharing networks.
Capitol v. MP3 Tunes (New York, NY)
This case concerns the process, in which Capitol Records, Inc. and MP3tunes, LLC, USDC S.D. New York were involved. MPtunes LLC is the owner of MP3tunes.com, the service that allows users to store musical files at personal online storages, play and download these materials. Sideload.com is another service of the company that allows users to search free songs and then download those to MP3tunes.com locker. The company has an anti-infringement policy for each website that users must agree with before using these services.
In 2007, the plaintiff claimed that there were infringing songs on the services of MP3tunes’ services. The company removed them on Sideload.com but did not do any actions with files within MP3tunes.com lockers of the users. After the series of claims from the plaintiff and careful consideration of all materials in the case, the court eventually refused to satisfy these claims, justifying this decision by the following: “MP3tunes is not a vicarious infringer and qualified for DMCA protection except for the songs side loaded from links identified” (Slotnick, 2011).
Roadshow Films Pty Ltd V iiNnet Limited
It was a court case between the Australian Federation Against Copyright Theft (AFACT), movie and televisions studious (34 in total), and iiNet, Ltd. The reason was the following: iiNet was accused in allowing users’ downloads about 100,000 illegal films, TV shows and music files using BitTorrent (Federal Court of Australia, 2010; Bradshaw, 2011). Similarly, safe harbor provision and peculiarities of the situation had led to the refusal to satisfy the claims of the plaintiffs. Thus, the court concluded that iiNet, as internet service provider neither provided “means” to favor infringement nor was able to prevent the infringements (Bradshaw, 2011). The lawyers of iiNet addressed to the protection provided under the Copyright Act 1968 safe harbor provisions (Federal Court of Australia, 2010).
It is rather difficult to determine what were the intentions of the companies that provided either access to the services or created these services and conclude whether the infringements were intentional or not. Safe harbor provision is a good support for the websites and companies that have no intention to perform any actions infringing copyright laws. However, there are negligent companies that use safe harbor provision to win the case and continue operations. Therefore, there are exemptions to safe harbor provisions. Thus, according to Fessenden (2002), “Safe harbor is a statutory liability exemption only available to “qualified” Internet services that fit the definition of Internet service provider (“provider”) within the statute.” As we can see, any “unqualified” services cannot use provision. Therefore, “qualified” Internet services can be controlled in terms of infringement that their actions may result in.
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