What's Legal in Peer-to-Peer Downloading?

Reader Key, among others, writes: I know that software like Limewire is illegal when downloading copyrighted music, but should I pay for Limewire Pro (illegal) or a paid version of BearShare which claims to be "legal P2P"? Are there any websites that offer "legal P2P" at all?

The peer-to-peer issue is a tricky one, but despite the rampant proliferation of websites and services that claim they're "legal" peer-to-peer systems, few really are all they seem.*

What's really legal when it comes to P2P? Not a whole lot, to be honest. While P2P technology is perfectly legal, it's the content that these networks carry that is frequently not. On every file sharing network, the vast majority of files being shared are copyrighted movies and music, software programs, and other stuff that the people sharing them have no legal basis for doing so. The law is pretty clear on this one, and thanks to Jammie Thomas's case, a fairly strong precedent has been set: Downloading something that's protected is illegal. Offering something on P2P network that's protected is illegal, even if they're no evidence that anyone actually downloaded it. In the eye of the court: Pretty much everything associated with P2P is illegal. 

That's not to say that you can't find exceptions. Yes, some bands and filmmakers make their material available for free, and some even encourage sharing. (This is why YouTube is so popular, after all.) But those artists make up a tiny minority of those represented on P2P networks. Search for just about any keyword on a P2P network and the vast majority of results will be protected works. (Note, however, that things differ a bit in Canada, at least for now.) As well, BitTorrent, for example, is being used for file distribution by some content providers, but these cases are still rare.

That leads us to so-called "legal" P2P services. BearShare and iMesh (which also owns BearShare) both operate hybrid services where users can share files with other users, but which are really geared toward selling you music on a subscription basis a la Napster. They claim "100% legal" status because the labels get paid for those subscription downloads, but the user-offered downloads are a little less clear. 

While these emergent services, including Qtrax (which never quite materialized the way it promised), do offer legal, ad-supported music downloads, they aren't P2P in the sense that most have come to understand it, where one user is sharing a file of his own (anything he wants) with the rest of the world. Is the sharing section legal? Maybe, probably because it's heavily policed: I searched BearShare for songs from big name artists and mostly came up with preview clips, live show bootlegs, and music videos. Very little of it was of the quality that you'd actually pay for. So, yeah, it's probably legal to download this stuff, but I doubt you'd actually want it. Anything you would want is protected by DRM and requires you subscribe to the BearShare service to be able to play it; you get 30 days free when you first download the software. In other words: It may be legal, but it isn't really P2P.

Bottom line: There's no shortage of legal ways to get P2P music or movies, but none of them are free. If you're getting music or movies without paying for them, it's almost a given that you're breaking the law.

(* Please note I am not a lawyer and that this post should not be construed as legal advice.)