Legal Question in Technology Law in New York

A question about File Sharing

Hello, I was just wondering what part of filesharing is actually illegal, I mean, would it be legal to host a database containing links to, but not actually having any illegal files on their server? And would I need to post a specific disclaimer (for example, when a company sells hacking tools or anything else that CAN be used for illegal purposes, they state that it is meant to be used for educational purposes only, I mean, wouldn't there be something similar that I could use?) I believe the first amendment covers one's right to make a directory, since this isn't breaking copyright law, but I might be wrong

Asked on 7/26/04, 10:15 am

1 Answer from Attorneys

William Frenkel Frenkel Sukhman LLP

Re: A question about File Sharing

I cannot answer your specific questions without reviewing your site/intranet but, as a practical matter, if it contains infringing material or links to infringing material you are risking legal action by copyright holders. Even if in your individual case you may be able to assert a defense to a copyright infringement action, such as "fair use," you would have to spend significant amounts of money on your defense.

That is why it is best to do a "legal web audit" of a website before making it public to get a "clean bill of health" for the purpose of minimizing the potential for lawsuits attacking either the content or some other feature of your site.

Some disclaimers may be essential while others are useful, but the distribution of "illegal" files, whether directly through the site, via hyperlinks or even by way of a directory is unlikely to be helped with any disclaimer. If the content of your site is primarily critical commentary or reporting on some aspect of programming/coding, however, you stand a better chance of avoiding liability in connection with any illegal software. The first amendment doctrine is a balancing test.

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Answered on 7/26/04, 12:14 pm

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