Quote:
Originally Posted by CDSmith
I'd like to understand why one is acceptable but the other is an egregious no-no punishable by $1000 fines and up to two years in prison?
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The primary difference that springs to mind is that sharing via "near field communication" (the technology utilized to enable phone-to-phone data sharing of the sort that you have described) is that a mobile phone user sharing files by using NFC shares his files/playlist one user at a time, in a way that requires the physical presence of the other person's device, while online p2p sharing enables a single person to share with an effectively unlimited number of other users, other users who need never share physical space with the person doing the sharing.
In other words, as a matter of scale, p2p sharing is far more efficient as a means of distributing pirated materials than is NFC.
Having said that, from a legal perspective, sharing copyrighted materials without authorization via NFC is likely to be considered illegal for some of the same reasons that p2p sharing is.
The device manufacturers, software developers, etc., whose technology enables the sharing are unlikely to be held liable (in large part because NFC has substantial non-infringing uses), but individual users could easily be held liable for sharing, provided that the relevant rights-holders were (a) aware of the infringing activity in the first place and (b) could obtain evidence against the infringing parties that could be presented in court.
One theory of liability that
might get some traction in court with respect to the phone manufacturers and data carriers would be the "inducement" theory of liability -- but I think the manufacturers/carriers would have to go a lot farther than they have so far in terms of explicitly encouraging the sharing of copyrighted materials in order for such a theory to stick in court.