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199-439: This doctrine is a development of general tort law and is an extension of the principle in tort law that in addition to the tortfeasor, anyone who contributed to the tort should also be held liable. The requirements for fulfilling the threshold of contributory infringement and imposing liability for copyright infringement on a party are: Contributory infringement leads to imposition of liability in two situations. First situation

398-518: A botleas crime were at the king's mercy. Items or creatures which caused death were also destroyed as deodands . Alfred the Great 's Doom Book distinguished unintentional injuries from intentional ones, and defined culpability based on status, age, and gender. After the Norman Conquest , fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as

597-672: A content-addressable , peer-to-peer method of storing and sharing hypermedia distribution protocol, with nodes in the IPFS network forming a distributed file system . Jami is a peer-to-peer chat and SIP app. JXTA is a peer-to-peer protocol designed for the Java platform . Netsukuku is a Wireless community network designed to be independent from the Internet. Open Garden is a connection-sharing application that shares Internet access with other devices using Wi-Fi or Bluetooth. Resilio Sync

796-665: A direct result of the breach of duty . Legal injuries addressable under tort law in common law jurisdictions are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of privacy , property, or constitutional rights. Torts comprise such varied topics as automobile accidents , false imprisonment , defamation , product liability , copyright infringement , and environmental pollution ( toxic torts ). Modern torts are heavily affected by insurance and insurance law , as many cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with

995-508: A lawsuit . To prevail, the plaintiff in the lawsuit must generally show that the tortfeasor's actions or lack of action was the proximate cause of the harm, though the specific requirements vary between jurisdictions. Torts and crimes in common law originate in the Germanic system of compensatory fines for wrongs, with no clear distinction between crimes and other wrongs. In Anglo-Saxon law , most wrongs required payment in money paid to

1194-437: A motion to compel discovery. In tort litigation, the availability of discovery enables plaintiffs to essentially carry out a private investigation, subpoenaing records and documents from the defendant. Consequently, commentators in civil law jurisdictions regard discovery destructive of the rule of law and as "a private inquisition." Civil law countries see the underlying objectives of discovery as properly monopolised by

1393-534: A non obstante clause and precludes the application of any other law including Copyright law. Thus, any restriction on safe harbor provisions such as Section 81 can be read-only within the limits of Section 79. Also, the IT Act and the Copyright Act should be construed harmoniously given their complementary nature. Further, MySpace's role was limited to providing access to a communication system. It only modified

1592-614: A server experiences an increase in load it redirects incoming peers to other peers who have agreed to mirror the content, thus off-loading balance from the server. All of the information is retained at the server. This system makes use of the fact that the bottleneck is most likely in the outgoing bandwidth than the CPU , hence its server-centric design. It assigns peers to other peers who are 'close in IP ' to its neighbors [same prefix range] in an attempt to use locality. If multiple peers are found with

1791-411: A tort or trespass , and there arose a division between civil pleas and pleas of the crown. The petty assizes (i.e. of novel disseisin , of mort d'ancestor , and of darrein presentment ) were established in 1166 as a remedy for interference with possession of freehold land. The trespass action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant

1990-406: A 'staple article of commerce' and therefore, not attract any liability for infringement. Based on this reasoning, it was held The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. The question

2189-498: A P2P network are more stable and available than files on central networks. In a centralized network, a simple loss of connection between the server and clients can cause a failure, but in P2P networks, the connections between every node must be lost to cause a data-sharing failure. In a centralized system, the administrators are responsible for all data recovery and backups, while in P2P systems, each node requires its backup system. Because of

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2388-534: A P2P network requires that at least one node in the network has the requested data, and that node must be able to connect to the node requesting the data. This requirement is occasionally hard to meet because users may delete or stop sharing data at any point. In a P2P network, the community of users is entirely responsible for deciding which content is available. Unpopular files eventually disappear and become unavailable as fewer people share them. Popular files, however, are highly and easily distributed. Popular files on

2587-522: A case falls into one of three sets of circumstances recognised by precedent while the Singaporean test is independent of precedent. In English tort law, Caparo Industries plc v Dickman established a tripartite test for the existence of a duty of care per which harm must be reasonably foreseeable as a potential result of the defendant's conduct; the parties must be in a relationship of proximity; and it must be fair, just, and reasonable to impose such

2786-578: A cause of action. The Inducing Infringement of Copyrights Act , or the INDUCE Act, was a 2004 proposal in the United States Senate which meant to insert a new subsection '(g)' to the existing Section 501 of the Copyright Act which defines 'infringement'. The proposed amendment would provide that whoever intentionally induces a violation of subsection (a) would be liable as an infringer. The term 'intentionally induces' has been defined in

2985-409: A centralized functionality but benefit from the decentralized aggregation of nodes provided by unstructured networks. CoopNet (Cooperative Networking) was a proposed system for off-loading serving to peers who have recently downloaded content, proposed by computer scientists Venkata N. Padmanabhan and Kunwadee Sripanidkulchai, working at Microsoft Research and Carnegie Mellon University . When

3184-643: A civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law , which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract. While tort law in civil law jurisdictions largely derives from Roman law , common law jurisdictions derive their tort law from customary English tort law . In civil law jurisdictions based on civil codes, both contractual and tortious or delictual liability

3383-461: A claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law , which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery , can result in both

3582-602: A combination of peer-to-peer and client–server models. A common hybrid model is to have a central server that helps peers find each other. Spotify was an example of a hybrid model [until 2014]. There are a variety of hybrid models, all of which make trade-offs between the centralized functionality provided by a structured server/client network and the node equality afforded by the pure peer-to-peer unstructured networks. Currently, hybrid models have better performance than either pure unstructured networks or pure structured networks because certain functions, such as searching, do require

3781-411: A copyright infringement suit against MySpace for hosting infringing material in which Super Cassettes was the copyright owner, without first obtaining a license. The infringing material primarily consisted of sound recordings. It was alleged that MySpace was commercially exploiting the works of T Series by including advertisements with the works made available by it. The Single Judge had held that MySpace

3980-493: A court order providing for a remedy other than damages is awarded under the CDRA is violated, sections 5-8 of the act require that the plaintiff apply for a 'special direction' to be issued in order to enforce the original remedy and section 9 provides that failure to comply with a special direction is grounds for the court to issue an order excluding the tortfeasor from their residence. Aside from legislatively created remedies such as

4179-752: A dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. In Cambridge Water Co Ltd v Eastern Counties Leather plc (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs. The Rylands rule remains in use in England and Wales. In Australian law, it has been merged into negligence. Economic torts typically involve commercial transactions, and include tortious interference with trade or contract, fraud, injurious falsehood, and negligent misrepresentation. Negligent misrepresentation torts are distinct from contractual cases involving misrepresentation in that there

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4378-572: A defendant may assert various defences to a plaintiff's case, including comparative fault and assumption of risk. Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person . Although credited as appearing in the United States in Brown v. Kendall , the later Scottish case of Donoghue v Stevenson [1932] AC 562, followed in England, brought England into line with

4577-474: A defender intentionally harms the pursuer - provided the interest harmed is regarded as reparable - the defender incurs delictual liability'. If the pursuer has suffered loss as the result of the defender's conduct, yet the defender did not intend to harm the pursuer, nor behave so recklessly that intent might be constructively inferred, the pursuer must demonstrate that the defender's conduct was negligent in order to win their case. Negligence can be established, by

4776-439: A distributed messaging system that is often described as an early peer-to-peer architecture, was established. It was developed in 1979 as a system that enforces a decentralized model of control. The basic model is a client–server model from the user or client perspective that offers a self-organizing approach to newsgroup servers. However, news servers communicate with one another as peers to propagate Usenet news articles over

4975-421: A duty. Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories: An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy

5174-675: A given time. Trustworthiness of sources is a potential security threat that can be seen with peer-to-peer systems. A study ordered by the European Union found that illegal downloading may lead to an increase in overall video game sales because newer games charge for extra features or levels. The paper concluded that piracy had a negative financial impact on movies, music, and literature. The study relied on self-reported data about game purchases and use of illegal download sites. Pains were taken to remove effects of false and misremembered responses. Peer-to-peer applications present one of

5373-510: A mixture of common and civil law jurisprudence either due to their colonial past (e.g. Québec , St Lucia , Mauritius ) or due to influence from multiple legal traditions when their civil codes were drafted (e.g. Mainland China , the Philippines , and Thailand ). Furthermore, Israel essentially codifies common law provisions on tort. In common, civil, and mixed law jurisdictions alike, the main remedy available to plaintiffs under tort law

5572-807: A more psychological and information-processing direction. Some peer-to-peer networks (e.g. Freenet ) place a heavy emphasis on privacy and anonymity —that is, ensuring that the contents of communications are hidden from eavesdroppers, and that the identities/locations of the participants are concealed. Public key cryptography can be used to provide encryption , data validation , authorization, and authentication for data/messages. Onion routing and other mix network protocols (e.g. Tarzan) can be used to provide anonymity. Perpetrators of live streaming sexual abuse and other cybercrimes have used peer-to-peer platforms to carry out activities with anonymity. Although peer-to-peer networks can be used for legitimate purposes, rights holders have targeted peer-to-peer over

5771-466: A patrimonial interest, they will incur Aquilian liability; and, where an individual violates a non-patrimonial interest, they will incur liability stemming from the actio iniuriarum. While broadly similar due to their common origin, the nature of the remedies available under contemporary Scots and Roman-Dutch law vary slightly, although the aquilian action and actio iniuriarum are the primary remedies available under both systems. The primary difference between

5970-410: A peer wants to find a desired piece of data in the network, the search query must be flooded through the network to find as many peers as possible that share the data. Flooding causes a very high amount of signaling traffic in the network, uses more CPU /memory (by requiring every peer to process all search queries), and does not ensure that search queries will always be resolved. Furthermore, since there

6169-477: A peer-to-peer network in conjunction with streaming servers to stream audio and video to their clients. Peercasting is employed for multicasting streams. Additionally, a project called LionShare , undertaken by Pennsylvania State University , MIT, and Simon Fraser University , aims to facilitate file sharing among educational institutions globally. Another notable program, Osiris , enables users to create anonymous and autonomous web portals that are distributed via

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6368-464: A peer-to-peer network. Dat is a distributed version-controlled publishing platform. I2P , is an overlay network used to browse the Internet anonymously . Unlike the related I2P, the Tor network is not itself peer-to-peer ; however, it can enable peer-to-peer applications to be built on top of it via onion services . The InterPlanetary File System (IPFS) is a protocol and network designed to create

6567-449: A proprietary peer-to-peer technology called "Delivery Optimization" to deploy operating system updates using end-users' PCs either on the local network or other PCs. According to Microsoft's Channel 9, this led to a 30%-50% reduction in Internet bandwidth usage. Artisoft's LANtastic was built as a peer-to-peer operating system where machines can function as both servers and workstations simultaneously. Hotline Communications Hotline Client

6766-634: A reaction in terms of tort reform , which in some cases have been struck down as violating state constitutions, and federal preemption of state laws. Torts may be categorised in several ways, with a particularly common division between negligent and intentional torts. Quasi-torts are unusual tort actions. Particularly in the United States, "collateral tort" is used to refer to torts in labour law such as intentional infliction of emotional distress ("outrage"); or wrongful dismissal ; these evolving causes of action are debated and overlap with contract law or other legal areas to some degree. In some cases,

6965-648: A result of the influence of its relatively early codification of criminal law, the torts of assault, battery, and false imprisonment are interpreted by Indian courts and the courts of jurisdictions that were formerly part of the British Indian Empire (e.g. Pakistan, Bangladesh) and British colonies in South East Asia which adopted the Indian Penal Code (i.e. Singapore, Malaysia, and Brunei) with reference to analogous crimes outlined in

7164-478: A risk of harm to the plaintiff. Tort liability in the Republic of China also extends to the violation of certain non-pecuniary interests under article 195 which provides for reasonable compensation in the case of damage to the body, health, reputation, liberty, credit, privacy, or chastity of another, or to another's personality in a severe way. Peer-to-peer Peer-to-peer ( P2P ) computing or networking

7363-439: A safe harbor for online service providers and internet service providers against secondary liability for copyright infringements provided that certain requirements are met. Most importantly, the service provider must expeditiously take down or limit access to infringing material on its network if it receives a notification of an infringement. Immunity under the communications Decency Act does not apply to copyright infringement as

7562-468: A separate category of strict liability torts. Similarly, cases involving environmental or consumer health torts which other countries treat as negligence or strict liability torts are treated in India as absolute liability torts. In establishing whether a duty of care exists, different common law jurisdictions have developed a variety of distinct but related approaches, with many jurisdictions building on

7761-472: A similar test in the context of assessing damages for pure economic loss owing to negligence derived from Anns which consists of a two step examination of the existence of a sufficiently proximate relationship between the parties and public policy considerations; however, the Canadian test is more sensitive to the individual circumstances of a given case and the first step is generally deemed to be met where

7960-430: A threat by a third party or an outside force. Private defence (or self-defence) is conduct directed at the person responsible for the duress or compulsion or threat. There is, therefore, an important distinction between the two. In cases of necessity and private defence, the question is this: Under which circumstances would the legal convictions of the community consider it reasonable to inflict harm to prevent it? The test

8159-750: A tort claim are able to do so in the hope that they will be able to obtain sufficient evidence through discovery. The primary drawbacks of this are that, on one hand, it creates the possibility that a plaintiff filing suit in good faith may not find enough evidence to succeed and incur legal expenses driven upward due to the cost of discovery; and, on the other hand, that it enables plaintiffs arguing in bad faith to initiate frivolous tort lawsuits and coerce defendants into agreeing to legal settlements in otherwise unmeritorious actions. Among common law countries today, there are significant differences in tort law. Common law systems include United States tort law , Australian tort law , Canadian tort law , Indian tort law , and

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8358-516: Is a distributed application architecture that partitions tasks or workloads between peers. Peers are equally privileged, equipotent participants in the network, forming a peer-to-peer network of nodes . In addition, a personal area network (PAN) is also in nature a type of decentralized peer-to-peer network typically between two devices. Peers make a portion of their resources, such as processing power, disk storage, or network bandwidth , directly available to other network participants, without

8557-693: Is a directory-syncing app. Research includes projects such as the Chord project , the PAST storage utility , the P-Grid , and the CoopNet content distribution system . Secure Scuttlebutt is a peer-to-peer gossip protocol capable of supporting many different types of applications, primarily social networking . Syncthing is also a directory-syncing app. Tradepal l and M-commerce applications are designed to power real-time marketplaces. The U.S. Department of Defense

8756-552: Is also known to have uploaded fake music and movies to P2P networks in order to deter illegal file sharing. Consequently, the P2P networks of today have seen an enormous increase of their security and file verification mechanisms. Modern hashing , chunk verification and different encryption methods have made most networks resistant to almost any type of attack, even when major parts of the respective network have been replaced by faked or nonfunctional hosts. The decentralized nature of P2P networks increases robustness because it removes

8955-525: Is compensation in damages , or money. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction , such as in the English case of Miller v Jackson . Usually injunctions will not impose positive obligations on tortfeasors , but some jurisdictions, such as those in Australia , can make an order for specific performance to ensure that

9154-634: Is conducting research on P2P networks as part of its modern network warfare strategy. In May 2003, Anthony Tether , then director of DARPA , testified that the United States military uses P2P networks. WebTorrent is a P2P streaming torrent client in JavaScript for use in web browsers , as well as in the WebTorrent Desktop standalone version that bridges WebTorrent and BitTorrent serverless networks. Microsoft , in Windows 10 , uses

9353-459: Is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation. Absolute liability , under the rule in M. C. Mehta v. Union of India , in Indian tort law is a unique outgrowth of the doctrine of strict liability for ultrahazardous activities . Under

9552-433: Is currently no consistent approach to the tort of invasion of privacy. Four provinces (British Columbia, Manitoba, Newfoundland and Saskatchewan ) have created a statutory tort. Ontario has recognised the existence of the tort of " intrusion upon seclusion ", which has also been held to exist under tort law in the United States. British Columbia, on the other hand, has held that the tort does not exist in that province under

9751-409: Is high. Therefore, the community should work together to get these features in open-source software. This would reduce the need for custom simulators, and hence increase repeatability and reputability of experiments." Popular simulators that were widely used in the past are NS2, OMNeT++, SimPy, NetLogo, PlanetLab, ProtoPeer, QTM, PeerSim, ONE, P2PStrmSim, PlanetSim, GNUSim, and Bharambe. Besides all

9950-577: Is implicit" in Article 21 of the Constitution of India , which guarantees protections for personal liberties. Despite the lack of a tort addressing violations of privacy by private individuals, the Supreme Court recognised privacy as a constitutional right in 2017. Similarly, neither intentional infliction of emotional distress (IIED) nor negligent infliction of emotional distress (NIED)

10149-493: Is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another But, in this case, the Court held that Sony did not have actual knowledge of the infringing activities of its customers. At the most it could be argued that Sony had constructive knowledge of

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10348-404: Is no privity of contract; these torts are likely to involve pure economic loss which has been less-commonly recoverable in tort. One criterion for determining whether economic loss is recoverable is the "foreseeability" doctrine. The economic loss rule is highly confusing and inconsistently applied and began in 1965 from a California case involving strict liability for product defects; in 1986,

10547-442: Is no correlation between a peer and the content managed by it, there is no guarantee that flooding will find a peer that has the desired data. Popular content is likely to be available at several peers and any peer searching for it is likely to find the same thing. But if a peer is looking for rare data shared by only a few other peers, then it is highly unlikely that the search will be successful. In structured peer-to-peer networks

10746-688: Is no exhaustive list of named delicts in either system; if the conduct complained of appears to be wrongful, the law will afford a remedy even in the absence of precedent pertaining to similar conduct. In South Africa and neighbouring countries, the Roman-Dutch law of delict is in force, having been preserved after the United Kingdom annexed Dutch settlements in South Africa and spread as neighbouring British colonies adopted South African law via reception statutes . Roman-Dutch law also forms

10945-507: Is no structure globally imposed upon them, unstructured networks are easy to build and allow for localized optimizations to different regions of the overlay. Also, because the role of all peers in the network is the same, unstructured networks are highly robust in the face of high rates of "churn"—that is, when large numbers of peers are frequently joining and leaving the network. However, the primary limitations of unstructured networks also arise from this lack of structure. In particular, when

11144-409: Is not in itself determinative of material contribution. Vicarious liability is another form of secondary liability for copyright infringement through which a person who himself has not directly infringed a copyright can, nevertheless, be held liable. The requirements for attracting vicarious liability under copyright law are: Unlike contributory infringement, vicarious liability can be imposed even in

11343-672: Is objective. It requires a balancing of the parties' and of society's interests. The role of the person against whom the defensive conduct is directed is an important factor in determining whether defence or necessity is being pled. An act of necessity is calculated to avert harm by inflicting it on an innocent person, whereas an act of defence is always directed at a wrongdoer. A person acts in "private defence", and therefore lawfully, when he uses force to ward off an unlawful attack against his or someone else's property or person. A person acts in "self-defence" when he defends his own body against unlawful attack by someone else. One therefore cannot invoke

11542-493: Is recognised as a tort in Indian jurisprudence. While claims seeking damages for infliction of emotional distress were historically an accessory claim in a tort action alleging another distinct tort, the doctrine has evolved in North America into a stand-alone tort while English jurisprudence has evolved to typically recognise only recognised psychiatric injuries as grounds for compensation. Indian courts, while recognising

11741-474: Is required to compensate them for any resulting injury, and provides for strict liability where such harm is caused by the violation of a statutory provision aimed at protecting members of the community from harm. Additionally, tort liability exists for the owner of a defective building or structure where such building or structure causes damage, for the driver of an automobile that causes injury, and for individual's responsible for business activities that posed

11940-489: Is taking place. But, constructive knowledge need not be imputed to the defendant if the product was capable of significant noninfringing uses. Material contribution is the second requirement of contributory infringement. For instance, merely providing facilities or the site for an infringement might amount to material contribution. But, some courts put emphasis on the contribution to be 'substantial' and therefore, would hold that providing equipment and facilities for infringement

12139-514: Is that peer-to-peer applications act as servers as well as clients, meaning that they can be more vulnerable to remote exploits . Since each node plays a role in routing traffic through the network, malicious users can perform a variety of "routing attacks", or denial of service attacks. Examples of common routing attacks include "incorrect lookup routing" whereby malicious nodes deliberately forward requests incorrectly or return false results, "incorrect routing updates" where malicious nodes corrupt

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12338-416: Is that results must be reproducible so that other researchers can replicate, validate, and extend existing work." If the research cannot be reproduced, then the opportunity for further research is hindered. "Even though new simulators continue to be released, the research community tends towards only a handful of open-source simulators. The demand for features in simulators, as shown by our criteria and survey,

12537-451: Is the toleration of the use of reasonable force to expel a trespasser, which is typically also a defence against the tort of battery. In some, but not all, civil and mixed law jurisdictions, the term delict is used to refer to this category of civil wrong, though it can also refer to criminal offences. Other jurisdictions may use terms such as extracontractual responsibility (France) or civil responsibility (Québec). In comparative law ,

12736-589: Is thus whether the Betamax is capable of commercially significant noninfringing uses. Since the Betamax was capable of "significant noninfringing uses", Sony was not held liable for contributory infringement. Contributory infringement has been the central issue in the cases involving peer-to-peer services such as Napster , Aimster , Grokster , and Morpheus . The courts have applied the Sony Betamax ratio differently in all these cases. For instance, Napster

12935-509: Is typically outlined in a civil code based on Roman Law principles. Tort law is referred to as the law of delict in Scots and Roman Dutch law , and resembles tort law in common law jurisdictions in that rules regarding civil liability are established primarily by precedent and theory rather than an exhaustive code. However, like other civil law jurisdictions, the underlying principles are drawn from Roman law. A handful of jurisdictions have codified

13134-502: Is typically the default remedy available to plaintiffs, with injunctions and specific performance being relatively rare in tort law cases. Relatively uniquely for a common law jurisdiction, Singapore's Community Disputes Resolution Act 2015 (CDRA) alters the common law by codifying a statutory tort of "interference with enjoyment or use of place of residence" and provides for a variety of remedies beyond damages, ranging from injunctions and specific performance to court-ordered apologies. Where

13333-505: Is used in many protocols such as BitTorrent file sharing over the Internet and in personal networks like Miracast displaying and Bluetooth radio. The concept has inspired new structures and philosophies in many areas of human interaction. In such social contexts, peer-to-peer as a meme refers to the egalitarian social networking that has emerged throughout society, enabled by Internet technologies in general. While P2P systems had previously been used in many application domains,

13532-414: Is used to impose strict liability on certain areas of nuisance law and is strictly "a remedy for damage to land or interests in land" under which "damages for personal injuries are not recoverable", Indian courts have developed this rule into a distinct principle of absolute liability, where an enterprise is absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from

13731-443: Is when the defendant, through his conduct, assists in the infringement, and the second situation is when the means for facilitating the infringement such as machinery is provided by the defendant. The knowledge requirement for contributory infringement is an objective assessment and stands fulfilled if the defendant has actual or constructive knowledge of an infringement, i.e., if he or she has reason to believe that an infringement

13930-588: The Copyright and Information Society Directive 2001 and Electronic Commerce Directive 2000 and focused on what constitutes an act of "communication to the public" or of "making available". Section 51 of the Copyright Act, 1957 deals with copyright infringement in India. Section 51(a)(i) provides for when an infringement of copyright is deemed to have taken place. It states that when somebody does anything,

14129-503: The Court of the King's Bench is recorded as saying that since the water supply in area was already contaminated, the nuisance was not actionable as it is "better that they should be spoiled than that the commonwealth stand in need of good liquor". In English law, a related category of tort liability was created in the case of Rylands v Fletcher (1868): strict liability was established for

14328-453: The IT Act . Section 79 of the IT Act provides that an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by the intermediary. But, an intermediary will get the benefit of the safe harbor provisions only if it satisfies certain conditions. The intermediaries function should be limited to providing access to a communication system,

14527-606: The Napster case , the issue was regarding the infringement of copyrights through the ' Music Share ' software of Napster. Whenever this software was used on a computer system, it would collect information about the MP3 files stored on the computer and send it to Napster servers. Based on this information, the Napster created a centralized index of files available for download on the Napster network. When someone wanted to download that file,

14726-615: The Netherlands and Scotland during the Enlightenment . In both legal systems, when applied in English speaking countries, the term delict is used to refer to tortious liability (unlike, for instance, in Spain where the cognate of the term delict refers to a criminal offence). Unlike in systems based on civil codes or on the English common law, Scots and Roman-Dutch law operate on broad principles of liability for wrongdoing; there

14925-509: The RIAA , MPAA , and entertainment industry to filter out copyrighted content. Although server-client networks are able to monitor and manage content availability, they can have more stability in the availability of the content they choose to host. A client should not have trouble accessing obscure content that is being shared on a stable centralized network. P2P networks, however, are more unreliable in sharing unpopular files because sharing files in

15124-619: The Ultramares approach or the Restatement approach. The tort of deceit for inducement into a contract is a tort in English law, but in practice has been replaced by actions under Misrepresentation Act 1967 . In the United States, similar torts existed but have become superseded to some degree by contract law and the pure economic loss rule. Historically (and to some degree today), fraudulent (but not negligent ) misrepresentation involving damages for economic loss may be awarded under

15323-620: The United States of America , the doctrine of contributory infringement is based on the 1911 case of Kalem v Harper Brothers . The ingredients of contributory infringement were laid down in the Second Circuit Court of Appeals decision in Gershwin Publishing Corp v Columbia Artists Management Inc . in which the court said that contributory infringement is said to happen when someone, with knowledge of

15522-475: The YaCy . Some prominent research projects include the Chord project , Kademlia , PAST storage utility , P-Grid , a self-organized and emerging overlay network, and CoopNet content distribution system . DHT-based networks have also been widely utilized for accomplishing efficient resource discovery for grid computing systems, as it aids in resource management and scheduling of applications. Hybrid models are

15721-407: The broadcasting -like structure of the web as it has developed over the years. As a precursor to the Internet, ARPANET was a successful peer-to-peer network where "every participating node could request and serve content". However, ARPANET was not self-organized, and it could not "provide any means for context or content-based routing beyond 'simple' address-based routing." Therefore, Usenet ,

15920-417: The defendant carries out certain legal obligations, especially in relation to nuisance matters. At the same time, each legal system provides for a variety of defences for defendants in tort claims which, partially or fully, shield defendants from liability. In a limited range of cases varying between jurisdictions, tort law will tolerate self-help as an appropriate remedy for certain torts. One example of this

16119-420: The insurance policy setting a ceiling on the possible payment. While individuals and corporations are typically only liable for their own actions, indirect liability for the tortious acts of others may arise by operation of law, notably through joint and several liability doctrines as well as forms of secondary liability . Liability may arise through enterprise liability or, in product liability cases in

16318-416: The lex Aquilia' and wrongdoing that results in physical harm to a person may give rise to both an aquilian action and an actio iniuriarum. Additionally, the modern Scots law pertaining to reparation for negligent wrongdoing is based on the lex Aquilia and so affords reparation in instances of damnum injuria datum - literally loss wrongfully caused - with the wrongdoing in such instances generated by

16517-422: The single point of failure that can be inherent in a client–server based system. As nodes arrive and demand on the system increases, the total capacity of the system also increases, and the likelihood of failure decreases. If one peer on the network fails to function properly, the whole network is not compromised or damaged. In contrast, in a typical client–server architecture, clients share only their demands with

16716-466: The "appeal of felony", or assize of novel disseisin, or replevin . Later, after the Statute of Westminster 1285 , in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force. As its scope increased, it became simply "action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case. In 1401,

16915-509: The "benefit-of-the-bargain" rule (damages identical to expectation damages in contracts ) which awards the plaintiff the difference between the value represented and the actual value. Beginning with Stiles v. White (1846) in Massachusetts, this rule spread across the country as a majority rule with the "out-of-pocket damages" rule as a minority rule. Although the damages under the "benefit-of-the-bargain" are described as compensatory,

17114-598: The "freeloader problem"). Freeloading can have a profound impact on the network and in some cases can cause the community to collapse. In these types of networks "users have natural disincentives to cooperate because cooperation consumes their own resources and may degrade their own performance". Studying the social attributes of P2P networks is challenging due to large populations of turnover, asymmetry of interest and zero-cost identity. A variety of incentive mechanisms have been implemented to encourage or even force nodes to contribute resources. Some researchers have explored

17313-401: The 'Club Aimster' service provided a list of 40 most popular songs made available on the service. It was also held that the encrypted nature of the transmission was not a valid defence as it was merely a means to avoid liability by purposefully remaining ignorant. It was held that ' willful blindness is knowledge, in copyright law.." The Sony defence raised by Aimster was also rejected because of

17512-404: The 1976 Copyright statute. The primary issue in this case was whether a VCR manufacturing company could be held liable for copyright infringements done by its customers. The court held that secondary liability for copyright infringements was not a foreign concept to US Copyright law and it was well enshrined in the copyright law of the United States. In the court's own words: Vicarious liability

17711-531: The 365 different computer viruses that were tested for. Corrupted data can also be distributed on P2P networks by modifying files that are already being shared on the network. For example, on the FastTrack network, the RIAA managed to introduce faked chunks into downloads and downloaded files (mostly MP3 files). Files infected with the RIAA virus were unusable afterwards and contained malicious code. The RIAA

17910-405: The CDRA, courts in common law jurisdictions will typically provide for damages (which, depending on jurisdiction, may include punitive damages ), but judges will issue injunctions and specific performance where they deem damages not to be a sufficient remedy. Legislatures in various common law jurisdictions have curtailed the ability of judges to award punitive or other non-economic damages through

18109-466: The English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle. Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for common carrier , which arose around 1400, was also emphasised in the medieval period. Unintentional injuries were relatively infrequent in

18308-415: The IT Act defines an ' intermediary ' as 'intermediary with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message'. Due to this wide definition, almost every entity, including ISPs, search engines and online service providers can get the benefit of the safe harbor provisions in

18507-642: The Internet, and direct people towards a client–server -based application architecture. The client–server model provides financial barriers-to-entry to small publishers and individuals, and can be less efficient for sharing large files. As a reaction to this bandwidth throttling , several P2P applications started implementing protocol obfuscation, such as the BitTorrent protocol encryption . Techniques for achieving "protocol obfuscation" involves removing otherwise easily identifiable properties of protocols, such as deterministic byte sequences and packet sizes, by making

18706-533: The Music Share software would use the Napster index to locate the user who already had that file on their system and then connect the two users directly to facilitate the download of the MP3 file, without routing the file through Napster's servers. The Ninth Circuit Court of Appeals found Napster liable for both "contributory infringement" and "vicarious infringement". Regarding the issue of contributory infringement,

18905-562: The P2P system independent from the physical network topology. Based on how the nodes are linked to each other within the overlay network, and how resources are indexed and located, we can classify networks as unstructured or structured (or as a hybrid between the two). Unstructured peer-to-peer networks do not impose a particular structure on the overlay network by design, but rather are formed by nodes that randomly form connections to each other. ( Gnutella , Gossip , and Kazaa are examples of unstructured P2P protocols). Because there

19104-535: The Roman Lex Aquilia . Non-patrimonial interests include dignitary and personality related interests (e.g. defamation, disfigurement, unjust imprisonment) which cannot be exhaustively listed which are addressed in the context of the Roman Actio iniuriarum , as well as pain and suffering which are addressed under jurisprudence that has developed in modern times. In general; where an individual violates

19303-455: The Scots and Roman-Dutch law of delict, there are two main remedies available to plaintiffs: Protected interests which can give rise to delictual liability can be broadly divided into two categories: patrimonial and non-patrimonial interests. Patrimonial interests are those which pertain to damages to an individual's body or property, which both Scots and Roman-Dutch law approach in the context of

19502-551: The U.S. Supreme Court adopted the doctrine in East River S.S. Corp. v. Transamerica Deleval, Inc . In 2010, the supreme court of the U.S. state of Washington replaced the economic loss doctrine with an "independent duty doctrine". Economic antitrust torts have been somewhat submerged by modern competition law . However, in the United States, private parties are permitted in certain circumstances to sue for anticompetitive practices, including under federal or state statutes or on

19701-449: The United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions. In Donoghue , Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that

19900-405: The United States, market share liability . In certain cases, a person might hold vicarious liability for their employee or child under the law of agency through the doctrine of respondeat superior . For example, if a shop employee spilled cleaning liquid on the supermarket floor and a victim fell and suffered injuries, the plaintiff might be able to sue either the employee or the employer. There

20099-422: The United States, noting that the English law was less generous to the plaintiff in the following ways: contingent fee arrangements were restricted, English judges tried more decisions and set damages rather than juries, wrongful death lawsuits were relatively restricted, punitive damages were relatively unavailable, the collateral source rule was restricted, and strict liability, such as for product liability,

20298-448: The United States, over conflicts with copyright law. Two major cases are Grokster vs RIAA and MGM Studios, Inc. v. Grokster, Ltd. . In the last case, the Court unanimously held that defendant peer-to-peer file sharing companies Grokster and Streamcast could be sued for inducing copyright infringement. The P2PTV and PDTP protocols are used in various peer-to-peer applications. Some proprietary multimedia applications leverage

20497-470: The absence of any intent or knowledge on part of the defendant. In the Napster case, the Court of Appeals for the Ninth Circuit observed: "In the context of copyright law, vicarious liability extends beyond an employer/employee relationship to cases in which a defendant "has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities." In

20696-427: The actio iniuriarum. The various delictual actions are not mutually exclusive. It is possible for a person to suffer various forms of harm at the same time, which means that a person may simultaneously claim remedies under more than one action. The elements of liability under the actio iniuriarum are as follows: There are five essential elements for liability in terms of the actio legis Aquiliae : In Scots law,

20895-527: The answered download requests on the gnutella network contained some form of malware, whereas only 3% of the content on OpenFT contained malware. In both cases, the top three most common types of malware accounted for the large majority of cases (99% in gnutella, and 65% in OpenFT). Another study analyzing traffic on the Kazaa network found that 15% of the 500,000 file sample taken were infected by one or more of

21094-412: The aquilian action has developed more expansively and may be invoked as a remedy for both patrimonial and certain types of non-patrimonial loss, particularly with regard to personal injury. By way of a legal fiction , 'personal injury' is treated as (physical) 'damage done', with the net effect that 'the actio injuriarum root of Scots law infuses the [nominate] delict assault as much as any development of

21293-447: The availability of files being shared. If the administrators decide to no longer distribute a file, they simply have to remove it from their servers, and it will no longer be available to users. Along with leaving the users powerless in deciding what is distributed throughout the community, this makes the entire system vulnerable to threats and requests from the government and other large forces. For example, YouTube has been pressured by

21492-419: The basis for the legal system of Sri Lanka . The elements of a delict as follows: The elements of harm and conduct are fact-based inquiries, while causation is part-factual and part-normative, and wrongfulness and fault are entirely normative: that is, value-based, in that they articulate a wider societal policy perspective. Delict is "inherently a flexible set of principles that embody social policy." Under

21691-670: The basis of common law tortious interference , which may be based upon the Restatement (Second) of Torts §766. Negligent misrepresentation as tort where no contractual privity exists was disallowed in England by Derry v Peek [1889]; however, this position was overturned in Hedley Byrne v Heller in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant. United States courts and scholars "paid lip-service" to Derry ; however, scholars such as William Prosser argued that it

21890-445: The behaviour of their users once their software had been sold, just like Sony did with Betamax. It was found that the defendants did have knowledge of infringement because of the legal notices sent to them. But, it was also held that to attract liability under contributory infringement, there should be knowledge of a specific infringement at the precise moment when it would be possible for the defendant to limit such infringement. Also, it

22089-445: The benefits of enabling virtual communities to self-organize and introduce incentives for resource sharing and cooperation, arguing that the social aspect missing from today's P2P systems should be seen both as a goal and a means for self-organized virtual communities to be built and fostered. Ongoing research efforts for designing effective incentive mechanisms in P2P systems, based on principles from game theory, are beginning to take on

22288-529: The bill as: "intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability." In the European Union , the European Court of Justice has issued several rulings on related matters, mainly based on

22487-503: The cases the file sharing technology was ruled to be legal as long as the developers had no ability to prevent the sharing of the copyrighted material. To establish criminal liability for the copyright infringement on peer-to-peer systems, the government must prove that the defendant infringed a copyright willingly for the purpose of personal financial gain or commercial advantage. Fair use exceptions allow limited use of copyrighted material to be downloaded without acquiring permission from

22686-471: The code. For instance, assault is interpreted in the context of s.351 per which the following criteria constitute assault: Similarly, battery is interpreted in the context of criminal force as outlined in s.350. An area of tort unique to India is the constitutional tort, a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle. In practice, constitutional torts in India serve

22885-470: The common law. Like the United Kingdom and British Columbia, but unlike Ontario and most jurisdictions in the United States, Indian tort law does not traditionally recognise a common law tort of invasion of privacy or intrusion on seclusion . Nevertheless, there is a shift in jurisprudence toward recognising breech of confidentiality as an actionable civil wrong. Proponents of protection for privacy under Indian tort law argue that "the right to privacy

23084-453: The concept was popularized by file sharing systems such as the music-sharing application Napster . The peer-to-peer movement allowed millions of Internet users to connect "directly, forming groups and collaborating to become user-created search engines, virtual supercomputers, and filesystems". The basic concept of peer-to-peer computing was envisioned in earlier software systems and networking discussions, reaching back to principles stated in

23283-473: The content (especially with protocols such as Bittorrent that require users to share, refer a performance measurement study ). This property is one of the major advantages of using P2P networks because it makes the setup and running costs very small for the original content distributor. Peer-to-peer file sharing networks such as Gnutella , G2 , and the eDonkey network have been useful in popularizing peer-to-peer technologies. These advancements have paved

23482-504: The core issues in the network neutrality controversy. Internet service providers ( ISPs ) have been known to throttle P2P file-sharing traffic due to its high- bandwidth usage. Compared to Web browsing, e-mail or many other uses of the internet, where data is only transferred in short intervals and relative small quantities, P2P file-sharing often consists of relatively heavy bandwidth usage due to ongoing file transfers and swarm/network coordination packets. In October 2007, Comcast , one of

23681-463: The court held that Napster had "actual knowledge" of infringing activity, and providing its software and services to the infringers meant that it had "materially contributed" to the infringement. It was held that the defense in Sony was of "limited assistance to Napster". The test whether a technology is capable of substantial non infringing uses was relevant only for imputing knowledge of infringement to

23880-619: The court ordered double the original grain restored to the victim to compensate the damages. The Qin Code made some changes to tort liabilities introducing the concept of subjective fault ( fault liability ). In a case where one person borrows farm equipment, compensation would be required for damage to the equipment if the damage is caused by the condition of the equipment when it was borrowed. In addition to fault liability, some defences were developed. A person would not be liable if public property were damaged by fire or other natural forces outside

24079-474: The data look as if it were random. The ISP's solution to the high bandwidth is P2P caching , where an ISP stores the part of files most accessed by P2P clients in order to save access to the Internet. Researchers have used computer simulations to aid in understanding and evaluating the complex behaviors of individuals within the network. "Networking research often relies on simulation in order to test and evaluate new ideas. An important requirement of this process

24278-572: The defendant actually induced the infringement. The test was reformulated as "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." The Digital Millennium Copyright Act 's Title II, known as the Online Copyright Infringement Liability Limitation Act , provides

24477-462: The defendant. Section 79 of the IT Act provides safe harbor to intermediaries provided certain conditions are met by them. But, Section 81 of the IT Act also states that nothing in the IT Act shall restrict the rights of any person under the Copyright Act, 1957. The single judge had interpreted Section 81 to mean that safe harbor under IT Act is not applicable in cases of Copyright Infringement. The Court reversed this and held that Section 79 starts with

24676-567: The defender's culpa (i.e., fault). In any instance in which a pursuer (A) has suffered loss at the hands of the wrongful conduct of the defender (B), B is under a legal obligation to make reparation . If B's wrongdoing were intentional in the circumstances, or so reckless that an 'intention' may be constructively inferred (on the basis that culpa lata dolo aequiparatur - 'gross fault is the same as intentional wrongdoing'), then it follows axiomatically that B will be liable to repair any damage done to A's property, person or economic interest: 'wherever

24875-632: The development of the Accident Compensation Corporation to eliminate personal injury lawsuits, the tort system for medical malpractice was scrapped in New Zealand, both following recommendations from the Royal Commission in 1967 for 'no fault' compensation scheme (see The Woodhouse Report). In the case of the United States, a survey of trial lawyers identified several modern innovations that developed after

25074-412: The development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, workers' compensation laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside

25273-405: The divergence of English and American tort law, including strict liability for products based on Greenman v. Yuba Power Products , the limitation of various immunities (e.g. sovereign immunity , charitable immunity ), comparative negligence , broader rules for admitting evidence, increased damages for emotional distress , and toxic torts and class action lawsuits. However, there has also been

25472-698: The effects of an already existing primary infringement are accentuated by the actions of the defendant. Section 51(b) provides that a copyright infringement will also be deemed to have taken place if a person sells, distributes, imports or exhibits in public by way of trade an infringing copy of a copyright-protected work. Therefore, Section 51(a)(ii) and Section 51(b) are the statutory basis for secondary liability in India including contributory infringement. The Information Technology Act, 2000 ("IT Act") contains specific provisions dealing with liabilities of Internet service providers . These provisions provide for 'safe harbors' for Internet Service Providers. Section 2(w) of

25671-445: The effects of the primary infringement. Section 51(a)(ii) deals with cases in which somebody assist the primary infringement. Section 51(a)(ii) itself gives the defense which can be taken by a defendant to avoid liability under this provision, i.e., the defendant was not aware or had no reasonable ground for believing that the communication to the public would be an infringement of the copyright. Section 51(b) deals with situations in which

25870-449: The entire group of network servers. The same consideration applies to SMTP email in the sense that the core email-relaying network of mail transfer agents has a peer-to-peer character, while the periphery of Email clients and their direct connections is strictly a client-server relationship. In May 1999, with millions more people on the Internet, Shawn Fanning introduced the music and file-sharing application called Napster. Napster

26069-471: The exclusive right to which is conferred on a copyright owner, without first securing a license to do so from the copyright owner or in contravention of a license, the copyright shall be deemed to have been infringed. The basis for contributory infringement under Indian copyright law can be found in Section 51(a)(ii) which states that when someone 'permits for profit any place to be used for the communication of

26268-422: The fact that "its customers may use that equipment to make unauthorised copies of copyrighted material." The court then relied on the "staple article of commerce" doctrine of patent law and applied it to copyrights. The 'staple article of commerce' defence is available under Patent law in the United States and it lays down that when an infringing article is capable of 'substantial non infringing uses', it would become

26467-539: The first Request for Comments , RFC 1. Tim Berners-Lee 's vision for the World Wide Web was close to a P2P network in that it assumed each user of the web would be an active editor and contributor, creating and linking content to form an interlinked "web" of links. The early Internet was more open than the present day, where two machines connected to the Internet could send packets to each other without firewalls and other security measures. This contrasts with

26666-421: The format and not the content and even this was an automated process. Therefore, there was no material contribution also. To amount to an infringement under Section 51 of the Copyright Act, the authorization to do something which was part of an owner's exclusive rights requires more than merely providing the means or place for communication. To be held liable for being an infringer on the grounds of authorization, it

26865-419: The fundamental criterion of reasonableness. They are another expression of the legal convictions of the society. Consent to injury, or Volenti non fit injuria , is a full defence; if successful, there is no delict. As a general defence, it can take two forms: There are five requirements for the defence of consent: Necessity is conduct directed at an innocent person as a result of duress or compulsion, or

27064-492: The government that infringe upon rights enshrined in the Constitution , as well as a system of absolute liability for businesses engaged in hazardous activity as outlined in the rule in M. C. Mehta v. Union of India . Similar to other common law jurisdictions, conduct which gives rise to a cause of action under tort law is additionally criminalised by the Indian Penal Code , which was originally enacted in 1860. As

27263-532: The guidelines. For instance, the intermediary should take down any infringing material on its network within thirty-six hours of the infringement being brought to its notice. In December, 2016, the Delhi High Court reversed the judgment passed by a single judge bench earlier to hold that unless 'actual knowledge' was proved, an intermediary could not be held liable for contributory copyright infringement. In 2008, T-Series (Super Cassettes) had instituted

27462-551: The history of torts has been critically reviewed. The 1928 US case of Palsgraf v. Long Island Railroad Co. heavily influenced the British judges in the 1932 House of Lords case of Donoghue v Stevenson . The United States has since been perceived as particularly prone to filing tort lawsuits even relative to other common law countries, although this perception has been criticised and debated. 20th century academics have identified that class actions were relatively uncommon outside of

27661-545: The inability of Aimster to bring on record any evidence to show that its service could be used for non infringing uses. Lastly, Aimster could also not get benefit of DMCA ' safe harbor ' provisions because it had not done anything to comply with the requirements of Section 512. Instead, it encouraged infringement. The District Court for the Central District of California, in MGM Studios v Grokster , held that

27860-470: The infliction of emotional distress regardless of intention as an actionable wrong in matrimonial disputes, typically follow the English approach, although case law from both the United Kingdom and North America is frequently employed by judges ruling on cases in which damages for mental distress are sought. Both Scots and Roman-Dutch law are uncodified , scholarship -driven, and judge-made legal systems based on Roman law as historically applied in

28059-477: The infringing act or that he or she did not have any reason to believe that the communication would amount to an infringement. Super Cassettes had argued that 'place' under Section 51(a)(ii) includes a virtual space similar to the one provided by MySpace. It was argued that MySpace had knowledge of the infringement based on the fact that it had incorporated safeguard tools to weed out infringing material and that it invited users to upload and share content. Therefore, it

28258-522: The infringing activity, induces, causes, or materially contributes to the infringing conduct of another. This doctrine was developed in the context of the 1909 Copyright Act which did not have any reference to contributory infringement. But, the 1976 Act recognised the exclusive right of a copyright owner 'to do and to authorize' the rights attached to a copyright enumerated in the Act. The words 'to authorize' were meant to bring contributory infringements within

28457-495: The intent requirement. Causation can be satisfied as long as the defendant was a substantial factor in causing the harm. "Nuisance" is traditionally used to describe an activity which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private nuisance) or the general public (public nuisance). The claimant can sue for most acts that interfere with their use and enjoyment of their land. In English law, whether activity

28656-538: The intermediary should not initiate the transmission, select the receiver or modify the transmission and should observe the guidelines formulated by the Central Government in this regard. The 'IT (Intermediary guidelines) Rules 2011' have been formulated to specify the conditions that an intermediary must satisfy to get the protection of safe harbor provisions. As per these guidelines, the intermediary must observe due diligence measures specified under Rule 3 of

28855-423: The involvement with sharing copyrighted material. Peer-to-peer networking involves data transfer from one user to another without using an intermediate server. Companies developing P2P applications have been involved in numerous legal cases, primarily in the United States, primarily over issues surrounding copyright law. Two major cases are Grokster vs RIAA and MGM Studios, Inc. v. Grokster, Ltd. In both of

29054-468: The justification of self-defence when acting in the interests of another person, but it is possible to invoke the justification of private defence when acting in one's own interests. Conduct will be justified as an act in private defence or self-defence if it is The violence used in defence must not exceed what is reasonably necessary to avert the threatened danger: An act of necessity may be described as lawful conduct directed against an innocent person for

29253-402: The lack of central authority in P2P networks, forces such as the recording industry, RIAA , MPAA , and the government are unable to delete or stop the sharing of content on P2P systems. In P2P networks, clients both provide and use resources. This means that unlike client–server systems, the content-serving capacity of peer-to-peer networks can actually increase as more users begin to access

29452-427: The largest broadband Internet providers in the United States, started blocking P2P applications such as BitTorrent . Their rationale was that P2P is mostly used to share illegal content, and their infrastructure is not designed for continuous, high-bandwidth traffic. Critics point out that P2P networking has legitimate legal uses, and that this is another way that large providers are trying to control use and content on

29651-408: The law of civil procedure , can open-endedly demand evidence from the other party or parties by means of discovery devices such as interrogatories , requests for production of documents , requests for admissions and depositions . Discovery can be obtained from non-parties using subpoenas . When a discovery request is objected to, the requesting party may seek the assistance of the court by filing

29850-586: The mainland. In areas administered by the Republic of China, the legislative basis of tort law is the Civil Code of the Republic of China whose legal system was modelled after the Japanese Six Codes system, which itself was primarily based on the German pandectist approach to law. In general, article 184 provides that a person who "intentionally or negligently" damages another person's rights

30049-407: The medieval period. As transportation improved and carriages became popular in the 18th and 19th centuries, however, collisions and carelessness became more prominent in court records. In general, scholars of England such as William Blackstone took a hostile view to litigation, and rules against champerty and maintenance and vexatious litigation existed. The right of victims to receive redress

30248-479: The need for central coordination by servers or stable hosts. Peers are both suppliers and consumers of resources, in contrast to the traditional client–server model in which the consumption and supply of resources are divided. While P2P systems had previously been used in many application domains , the architecture was popularized by the Internet file sharing system Napster , originally released in 1999. P2P

30447-529: The network using a hash table : that is, ( key , value ) pairs are stored in the DHT, and any participating node can efficiently retrieve the value associated with a given key. However, in order to route traffic efficiently through the network, nodes in a structured overlay must maintain lists of neighbors that satisfy specific criteria. This makes them less robust in networks with a high rate of churn (i.e. with large numbers of nodes frequently joining and leaving

30646-561: The network). More recent evaluation of P2P resource discovery solutions under real workloads have pointed out several issues in DHT-based solutions such as high cost of advertising/discovering resources and static and dynamic load imbalance. Notable distributed networks that use DHTs include Tixati , an alternative to BitTorrent's distributed tracker, the Kad network , the Storm botnet , and

30845-560: The network. This model of network arrangement differs from the client–server model where communication is usually to and from a central server. A typical example of a file transfer that uses the client-server model is the File Transfer Protocol (FTP) service in which the client and server programs are distinct: the clients initiate the transfer, and the servers satisfy these requests. Peer-to-peer networks generally implement some form of virtual overlay network on top of

31044-540: The operation of hazardous activity. This differs greatly from the English approach as it includes all kinds of resulting liability, rather than being limited to damage to land. In New Zealand, the tort system for the majority of personal injuries was scrapped with the establishment of the Accident Compensation Corporation , a universal system of no-fault insurance . The rationale underlying New Zealand's elimination of personal injury torts

31243-437: The overlay is organized into a specific topology, and the protocol ensures that any node can efficiently search the network for a file/resource, even if the resource is extremely rare. The most common type of structured P2P networks implement a distributed hash table (DHT), in which a variant of consistent hashing is used to assign ownership of each file to a particular peer. This enables peers to search for resources on

31442-416: The peer-to-peer services Morpheus and Grokster were not liable for copyright infringements carried out by their users. Unlike Napster, these services did not maintain a centralised index. Instead, they created ad hoc indices known as supernodes on the users computers. Sometimes, the software operated without creating any index at all. Thus, it was held that Grokster and Morpheus had no way of controlling

31641-539: The person's control. There was no liability for killing livestock, if the livestock was about to hurt someone. In contemporary China, however, there are four distinct legal systems in force, none of which are derived from classical Chinese law: Portuguese civil law in Macau, common law in Hong Kong, a German-style civil law system adopted by the Republic of China following Japan's model, and a primarily civil law system in

31840-435: The physical network topology, where the nodes in the overlay form a subset of the nodes in the physical network. Data is still exchanged directly over the underlying TCP/IP network, but at the application layer peers can communicate with each other directly, via the logical overlay links (each of which corresponds to a path through the underlying physical network). Overlays are used for indexing and peer discovery, and make

32039-427: The plaintiff is left better off than before the transaction. Since the economic loss rule would eliminate these benefits if applied strictly, there is an exception to allow the misrepresentation tort if not related to a contract. The remedies and defences available in common law jurisdictions are typically similar, deriving from judicial precedent with occasional legislative intervention. Compensation by way of damages

32238-591: The plaintiff must prove to establish negligence. In most common law jurisdictions, there are four elements to a negligence action: Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm. Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages. However, at their heart, the various definitions of what constitutes negligent conduct are very similar. Depending on jurisdiction, product liability cases such as those involving warranties may be considered negligence actions or fall under

32437-411: The precedent established in the English case of Rylands v Fletcher , upon which the Indian doctrine of absolute liability is based, anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own purposes anything likely to cause mischief if it escapes is answerable for all direct damage thereby caused. While, in England and many other common law jurisdictions, this precedent

32636-506: The purpose of protecting an interest of the actor or of a third party (including the innocent person) against a dangerous situation, which may have arisen owing to the wrongful conduct of another or the behaviour of an animal, or through natural forces. Two types of emergency situations may be found: Civil and criminal law were not clearly delineated in Ancient Chinese law as they are in modern legal systems. Therefore, while Tort Law

32835-401: The pursuer, by demonstrating that the defender owed to them a 'duty of care' which they ultimately breached by failing to live up to the expected standard of care . If this can be shown, then the pursuer must also establish that the defender's failure to live up to the expected standard of care ultimately caused the loss (damnum) complained of. There is a distinction between defences aimed at

33034-578: The purview of the Act. But, still, the Act did not specify the requirements of such forms of infringement and left its application to the discretion of courts. The case of Sony Corp v Universal City Studios Inc , commonly known as the Betamax case , gave the United States Supreme Court its first opportunity to comprehensively look into and interpret the rules regarding secondary liability and contributory infringement in context of

33233-401: The rights holders. These documents are usually news reporting or under the lines of research and scholarly work. Controversies have developed over the concern of illegitimate use of peer-to-peer networks regarding public safety and national security. When a file is downloaded through a peer-to-peer network, it is impossible to know who created the file or what users are connected to the network at

33432-604: The role served by administrative courts in many civil law jurisdictions and much of the function of constitutional review in other jurisdictions, thereby functioning as a branch of administrative law rather than private law . Rather than developing principles of administrative fairness as a distinct branch of law as other common law jurisdictions have, Indian courts have thus extended tort law as it applies between private parties to address unlawful administrative and legislative action. Within Canada's common law provinces, there

33631-455: The routing tables of neighboring nodes by sending them false information, and "incorrect routing network partition" where when new nodes are joining they bootstrap via a malicious node, which places the new node in a partition of the network that is populated by other malicious nodes. The prevalence of malware varies between different peer-to-peer protocols. Studies analyzing the spread of malware on P2P networks found, for example, that 63% of

33830-441: The same file it designates that the node choose the fastest of its neighbors. Streaming media is transmitted by having clients cache the previous stream, and then transmit it piece-wise to new nodes. Peer-to-peer systems pose unique challenges from a computer security perspective. Like any other form of software , P2P applications can contain vulnerabilities . What makes this particularly dangerous for P2P software, however,

34029-431: The state in order to maintain the rule of law: the investigative objective of discovery is the prerogative of the executive branch , and insofar as discovery may be able to facilitate the creation of new rights, that is the prerogative of the legislative branch . The availability of discovery in common law jurisdictions means that plaintiffs who, in other jurisdictions, would not have sufficient evidence upon which to file

34228-415: The system, but not their resources. In this case, as more clients join the system, fewer resources are available to serve each client, and if the central server fails, the entire network is taken down. There are both advantages and disadvantages in P2P networks related to the topic of data backup , recovery, and availability. In a centralized network, the system administrators are the only forces controlling

34427-546: The technology provider. But, in Napster's case, it was found that Napster had "actual, specific knowledge of direct infringement", and therefore, the Sony test would not be applicable. In ' In re Aimster ' , the Seventh Circuit was called upon to decide the liability of peer-to-peer sharing of music files through the Instant Messaging services provided by Aimster . Aimster had argued that

34626-468: The term tort is generally used. The word 'tort' was first used in a legal context in the 1580s, although different words were used for similar concepts prior to this time. A person who commits a tortious act is called a tortfeasor. Although crimes may be torts, the cause of legal action in civil torts is not necessarily the result of criminal action. A victim of harm, commonly called the injured party or plaintiff , can recover their losses as damages in

34825-495: The test established in Anns v Merton LBC . In Singapore, the current leading case is Spandeck Engineering v Defence Science and Technology Agency , which builds on Anns by establishing a two step test comprising an analysis of proximate cause and public policy as a universal test, independent from the individual circumstances of a given case, for determining the existence of a duty of care. The Supreme Court of Canada established

35024-633: The tort law of a variety of jurisdictions in Asia and Africa. There is a more apparent split in tort law between the Commonwealth countries and the United States. Despite diverging from English common law in 1776, earlier than the other common law jurisdictions, United States tort law was influenced by English law and Blackstone's Commentaries , with several state constitutions specifically providing for redress for torts in addition to reception statutes which adopted English law. However, tort law globally

35223-441: The traditional common law torts. These are loosely grouped into quasi-torts or liability torts. The tort of negligence is a cause of action leading to relief designed to protect legal rights from actions which, although unintentional, nevertheless cause some form of legal harm to the plaintiff. In order to win an action for negligence, a plaintiff must prove: duty, breach of duty, causation, scope of liability, and damages. Further,

35422-517: The transmission of files between its users was encrypted and because of that, Aimster could not possibly know the nature of files being transmitted using its services. But, the Seventh circuit Court of Appeals affirmed the decision of the district court which had issued a preliminary injunction against Aimster. It was found that Aimster had knowledge of the infringing activity. Its tutorial showed examples of copyrighted music files being shared. Also,

35621-481: The two remedies is that the aquilian action serves a compensatory function (i.e. providing economic damages to restore the plaintiff to their previous state) while the actio iniuriarum provides for non-economic damages aimed at providing solace to the plaintiff. In Roman-Dutch law (but not in Scots law), there is also a distinct action for pain and suffering relating to pain and suffering and psychiatric injury, which provides for non-economic damages similar to those under

35820-430: The use of non-economic damages caps and other tort reform measures. Apart from proof that there was no breach of duty (in other words, that a tortious act was not committed in the first place), there are three principal defences to tortious liability in common law jurisdictions: Discovery (or disclosure), a concept unique to common law jurisdictions, is a pre-trial procedure in a lawsuit in which each party, through

36019-554: The way for Peer-to-peer content delivery networks and services, including distributed caching systems like Correli Caches to enhance performance. Furthermore, peer-to-peer networks have made possible the software publication and distribution, enabling efficient sharing of Linux distribution and various games though file sharing networks. Peer-to-peer networking involves data transfer from one user to another without using an intermediate server. Companies developing P2P applications have been involved in numerous legal cases, primarily in

36218-462: The work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright', then also, the copyright shall be deemed to have been infringed. Secondary infringement itself can be subdivided into two categories- activities that assist primary infringements, and activities that accentuate

36417-499: The wronged person or their clan. Fines in the form of wīte ( lit.   ' blame ' or ' fault ' ) were paid to the king or holder of a court for disturbances of public order, while the fine of weregild was imposed on those who committed murder with the intention of preventing blood feuds . Some wrongs in later law codes were botleas 'without remedy' (e.g. theft, open murder, arson, treason against one's lord), that is, unable to be compensated, and those convicted of

36616-438: The wrongfulness element and defences which serve to exclude fault . Grounds of justification may be described as circumstances which occur typically or regularly in practice, and which indicate conclusively that interference with a person's legally protected interests is reasonable and therefore lawful. They are practical examples of circumstances justifying a prima fade infringement of a recognised right or interest, according to

36815-406: Was an illegal nuisance depended upon the area and whether the activity was "for the benefit of the commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet. The case Jones v Powell (1629) provides an early example, in which a person's professional papers were damaged by the vapors of a neighboring brewery. Although the outcome of this case is unclear, Whitelocke of

37014-463: Was argued that there was implied knowledge. The Court held that to qualify as knowledge there should be awareness in the form of "actual knowledge" as opposed to just general awareness. Without specific knowledge of infringements, the intermediary could not be said to have reason to believe that it was carrying infringing material. Therefore, there was a duty on the plaintiff to first identify specific infringing material before knowledge could be imputed to

37213-601: Was built with decentralized servers and tracker software dedicated to any type of files and continues to operate today. Cryptocurrencies are peer-to-peer-based digital currencies that use blockchains Cooperation among a community of participants is key to the continued success of P2P systems aimed at casual human users; these reach their full potential only when large numbers of nodes contribute resources. But in current practice, P2P networks often contain large numbers of users who utilize resources shared by other nodes, but who do not share anything themselves (often referred to as

37412-400: Was found that there was no material contribution. For this, the court relied on Sony and compared the technology to that of a VCR or a photocopier to hold that the technology was capable of both infringing as well as non infringing uses. Grokster differs from Sony, as it looks at the intent of the defendant rather than just the design of the system. As per Grokster, a plaintiff must show that

37611-424: Was guilty of copyright infringement under Section 51 of the Copyright Act and the benefit of safe harbor provisions under Section 79 of the IT Act were not available to it in light of Section 81 of the IT Act. The judgment of the single judge was reversed on the following grounds- Liability under Section 51(a)(ii) can be avoided by the defendant if he or she is able to show that he or she did not have any knowledge of

37810-403: Was held liable for contributory infringement. But, a similar service like Grokster was not held liable for contributory infringement as in this case, a district court, grounding its reasoning on the Sony Betamax decision, held that secondary liability could not be applied to peer-to-peer services. Napster was the first peer-to-peer service to be subject to copyright infringement litigation. In

38009-445: Was imprisoned. It arose in local courts for slander , breach of contract , or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made de cursu (available by right, not fee); however, it was restricted to interference with land and forcible breaches of the king's peace. It may have arisen either out of

38208-575: Was misinterpreted by English courts. The case of Ultramares Corporation v. Touche (1932) limited the liability of an auditor to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s. The Restatement (Second) of Torts expanded liability to "foreseeable" users rather than specifically identified "foreseen" users of the information, dramatically expanding liability and affecting professionals such as accountants, architects, attorneys, and surveyors . As of 1989, most U.S. jurisdictions follow either

38407-412: Was necessary to show active participation or inducement. Therefore, Section 79 is available in cases of copyright infringement also provided the conditions under the Act and Intermediary Guidelines, 2011 are fulfilled. Since MySpace had fulfilled these requirements, it was given the protection of Section 79 of IT Act. Tort A tort is a civil wrong , other than breach of contract, that causes

38606-458: Was not a distinct area of law, concepts familiar to tort law were present in the criminal laws. However, by the late feudalism period, personal injury and property damage torts were mostly focused on compensation. The earliest "tort case" known from Ancient China is from the Zhou dynasty . During a famine one person robbed another's barn by sending his slave to steal the grain. He was sued and

38805-483: Was regarded by later English scholars as one of the rights of Englishmen . Blackstone's Commentaries on the Laws of England , which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word tort in a few places. In contemporary common law jurisdictions, successful claimants in both tort and contract law must show that they have suffered foreseeable loss or harm as

39004-467: Was relatively unavailable. The English welfare state , which provides free healthcare to victims of injury, may explain the lower tendency towards personal injury lawsuits in England. A similar observation has also been made with regard to Australia . While Indian tort law is generally derived from English law , there are certain differences between the two systems. Indian tort law uniquely includes remedies for constitutional torts, which are actions by

39203-609: Was securing equality of treatment for victims regardless of whether or the extent to which they or any other party was at fault. This was the basis for much of Professor Patrick Atiyah 's scholarship as articulated in Accidents, Compensation and the Law (1970). Originally his proposal was the gradual abolition of tort actions, and its replacement with schemes like those for industrial injuries to cover for all illness, disability and disease, whether caused by people or nature. In addition to

39402-403: Was the beginning of peer-to-peer networks, as we know them today, where "participating users establish a virtual network, entirely independent from the physical network, without having to obey any administrative authorities or restrictions". A peer-to-peer network is designed around the notion of equal peer nodes simultaneously functioning as both "clients" and "servers" to the other nodes on

39601-442: Was viewed as relatively undeveloped by the mid-19th century; the first American treatise on torts was published in the 1860s but the subject became particularly established when Oliver Wendell Holmes, Jr wrote on the subject in the 1880s. Holmes' writings have been described as the "first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain", although Holmes' summary of

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