A Techno-Legal Perspective on Peer-to-Peer-Based Bandwidth on Demand Management

Currently, the topic of ´bandwidth on demand´ is actively discussed in the US (e.g. with respect to ´network neutrality´) not only from a technological point of view, but also from an economic and legal perspective. Technically, bandwidth and resulting throughput can be controlled by ISPs on OSI layers 1-3, but additionally ´bandwidth on demand´ can also be provided by means of the application layer utilizing peer-to-peer (P2P) systems (e.g. BitTorrent). In this paper we analyze from a European perspective legal status and legal consequences (rights and obligations) of using and operating such overlay networks. We first provide a classification of the most relevant European directives, laws, and legal opinions on electronic communication systems. Afterwards, we categorize P2P systems and their involved components from the legal point of view. Based on this categorization, we present developer/operator guidelines with their corresponding legal consequences for various P2P systems.