The curious case of the tussle between copyright holders, software developers, ISPs and internet users

Chapter 1

Introduction

In recent times, copyright concerns have shifted beyond the need to protect the recitation of poems or the scripting of plays. The greatest threat to copyright is no more the possibility of someone else taking credit for the creative work of another, but rather the increased possibility that customers could derive satisfaction from a copyrighted work without paying for such enjoyment.[1] The pecuniary implication here should certainly give cause for concern as it may lead to the demise of copyright protection.[2] This new threat owes a lot to the technological advancement brought about by the information age.[3] It has thus been aptly recognised by Eko that it is the dematerialised protection of the cyberspace that continues to raise fundamental problems for policy makers.[4] The constant change in technology has thus elicited debate as to the need to rethink copyright law.[5]

Questions regarding the effectiveness of copyright laws have become more pronounced considering the ease at which copyrighted files could be transmitted, downloaded and transferred. Quite literary, it takes only a click of the mouse to gain access to high profile copyright work over the internet. This, coupled with the fact that any form of retribution is far from sight, increases the temptation to indulge in illegal file sharing.[6] The issue of Peer-to-Peer (P2P) file sharing has however elicited and divided opinions between stakeholders. As for copyright holders, they are against such activities because they believe it dilutes their intellectual property right.  At the other end of the debate, an army of users are determined to limit the influence of the big multinational producers based on their inherent belief that music, movies, and other copyright materials in digitised form should be enjoyed by the commonwealth. Their arguments often borders on the fact that multinational corporations and artistes already make stupendous wealth despite the alleged illegal file sharing infringement. This makes them wonder whether there could be any justification for the constant bickering of producers beyond cheer corporate greed.[7] This sets in motion a “we” versus “them” scenario[8] which makes illegal file sharing even more difficult to curb as many users will go to great length to undermine the inviolability of the copyrighted files even where they would not make any pecuniary gains.

The foregoing notwithstanding, the ferocity of copyright holders’ pursuit of illegal file sharing can be justified on the grounds that even if at present its impact on the creative industry is not as dire, they are well within their right to nip it by the bud before it begins to have a severe impact on the industries involved.

Different steps can be taken by copyright holders to preserve the sanctity of the IP right – they could educate the public about the potential impact of illegal file sharing, lobby government to impose tougher statutory sanctions against infringers, they could also intensify claims against direct infringers. Other options include instituting action against the facilitators of the infringement through a secondary infringement claim[9] perhaps because of its economic appeal.[10] Further, they could have Internet Service Providers (ISPs) take part in the monitoring and reporting of infringing activities being perpetuated on their network. This dissertation relates with all these possibilities and gives a detailed analysis and evaluation of the propriety and desirability of the position of the law regarding online P2P file sharing. The dissertation considers the position in the United Kingdom. However, considering the thoroughly globalised nature of this field of law, it is imperative to deal substantially with the development in other countries as well particularly the United States.

This chapter paint a general picture of file sharing by detailing the potential impact it has on businesses. Chapter two traces the evolution of P2P file sharing cases which invariably takes us to the United States. Chapter three extends this evolutional expose to other countries. Of particular note here is the position in the United Kingdom as well as at the European Union level. Chapter four chats and evaluates the legislative effort that is underway particularly in the United Kingdom. Chapter five addresses the possible exception of fair use and private copying under the US and UK regime. Chapter six contains the conclusion.

File Sharing in Brief

As already noted above, the advent of novel and easily assessable technology has made file sharing a possibility. This activity has been widely christened as P2P network which simply means “Peer to Peer”. One can substitute the term “peer” with “computer” such that “Peer to Peer” network has the same meaning as “Computer to Computer” network.[11] The novel possibility afforded by P2P is that it enables the transfer of files without the need for a physical connection of the computers to a central server. Rather, each computer serves as a server in its own right. Hence, once a user connects to the network, P2P software enables him to search files on other people’s computer. Simultaneously, others can search such user’s computer. However, the scope of intrusion is controlled by the users so that another user can only search for files within a specific folder which such user has designate as one that can be shared.

The true impact of file sharing has been debated over the years.[12] With the example of the music industry,[13] claims have been made that file-sharing activities could have contributed to the 10.9 percent fall in revenues in the music industry fell.[14] At the same time, a notable increase in unauthorised sharing of sound recordings has been observed as it has been revealed that over 2.7 billion file-sharing web searches were undertaken in the year 2011 alone[15]. In the UK for instance, there has been a steady decline in music sales. The drop of up to 25% could probably be explained by the harmful activities of file sharing facilitated by illegal sites and services. Other reports show that illegal file sharing has a negative effect of up to 30% on sale. Further, it was contended that music sale would have been up to 7.8% higher if not for illegal downloads.[16] There thus seem to be a large weight of evidence from the academic world which suggests that there is a negative relationship between illegal file sharing and music sales.

Overall, the preponderance of academic and market research strongly suggests a negative relationship between illegal P2P file‐sharing and music sales Jupiter, for instance, notes that though there are other factors responsible for the decline in music sales, there is no doubt that illegal file sharing has a clear impact. He stated that “[a] clear associated trend between per capita music spend and music P‐to‐P penetration is present across most of the European markets surveyed. The markets with the highest incidence of music P‐to‐P are also those with weakest per capita music spending.”[17] In essence, this means that “[t]he overall impact of file‐sharing on music spending is negative.”[18] There thus seem to be a case for suggesting that illegal downloads has an adverse effect on the entertainment industry in general and as such should be curbed.[19]

Nevertheless, there are studies that point to the contrary. Study conducted by Oberholzer and Strumpf show that file sharing does not have adverse effect on music sales. The report stated that “downloads have an effect on sales which is statistically indistinguishable from zero”.[20] Similarly, a report from Japanese Tatsuo Tanaka of the Keio University was to the effect that there was only a little evidence to support the assertion that file sharing has a negative impact on music sales.[21] Moreover, it has been argued that file sharing could potentially aid the music industry by increasing the interest of users in music which they probably would not have been interested in. It could also aid sales. A study by Kelly reveals the positive externality effect on the music industry as a whole as it helps increase the urge and interest of those who would not have otherwise shown interest.[22] In 2009 a study titled Consumer Culture in Times of Crisis which was undertaken by the BI Norwegian School of Management found a close connection between free downloading and purchasing of digital files. The telephone survey of 2,000 individuals revealed that downloaders from free sites had also downloaded from fee paying sites 75 times. This can be compared to just seven purchases from paid sites by those who had never downloaded from free sites.

Even if one is convinced that file haring has an impact on the market as a whole, Hammond argues that the effect on an individual album is essentially zero.[23] He came to these conclusions by exploiting an exogenous variation of illegal music downloads which are then isolated in order to ascertain the causal effect on an album. In fact, he observes a positive externality as he notes that a 10% increase in illegal downloads is associated with additional sales. The argument is that by making their works available for illegal file-sharing, artists and entertainers’ chance of increased sales is enhanced as they are more likely to “gain a larger slice of the shrinking pie that is music-industry revenues.” Perhaps this is why artistes are not always averse to having their work downloaded or streamed illegally.[24] Moreover, it has been acknowledged by Colletti that P2P activities are not likely to be eradicated considering their numerous positive benefits[25] which explains why P2P activities has not been considered illegal per se.[26] As such, focus has to be placed on the alleged illegal activities as opposed to file-sharing itself.

The foregoing notwithstanding, whatever the effect attributed to the activities of file-sharing, the proprietary nature of copyright should serve as enough justification for the institution of actions and against infringers. As such, this dissertation will not focus on the propriety of the claims made against alleged infringers or vice versa. Rather, it seeks to assess the response of the law to the challenge brought to the field of copyright by the advent of this P2P technology.

The problems identified in the earlier cases have even been further exacerbated by the exponential change in digital technology.[27] Unfortunately, the law in the United Kingdom was lagging behind and law in the United Kingdom until the passing of the Digital Economy Act 2010 (DEA) which amongst other things was aimed at “tackling illicit peer-to-peer file sharing”.

In the United Kingdom, laws such as the DEA threatened the “the sanctity of the home copier's living room”.[28] Moreover, it conflicts the Data Protection Act 1998 as well as Human Rights. The Act is however targeted at repeat infringers.

Prior to the advent of sophisticated technologies that facilitates P2P infringements, there have been cases wherein claims of secondary infringement had been made.[29] The notable case of Sony Corp v Universal City Studios[30] is worthy of mention. This case, fondly referred to as the Betamax case, was about the use of Betamax tapes and other VCRs for home taping. Representative of the film industry brought the suit against Sony arguing that by manufacturing and developing Betamax machines, Sony was facilitating infringement and as such was liable for secondary infringement. The two questions which the court considered was whether home taping itself constituted an infringing act and whether Sony liable was liable for contributory infringement primarily because the Betamax machines could be used for infringing acts. In its reasoning, the court ruled that home taping in general falls under the fair use exception. On the second issue, the court ruled that “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.”[31]

Conclusively, the foregoing shows how serious the issue of file sharing is considered, the remainder of the thesis will seek to add flesh, evaluate and make propositions regarding the approach that should be taken in addressing the file sharing menace.

Chapter 2

Evolution of US Cases

A natural starting point for file sharing discuss is the United States. As the world leader in Information Technology, it was only normal that the first instances of P2P file sharing dispute will arise in the United State. The approach adopted by the court in the seminal cases have gone a long way in shaping the reasoning in other jurisdictions including the United Kingdom.  The courts in the US till date are at the forefront of protecting copyright online. A recent example is the action taken against Megaupload.com. The site was taken down for its illegal file hosting services. The US Department of Justice was at pains to stress the illegal and criminal nature of hosting service.[32] However, for the purpose of this dissertation, greater focus will be placed on the locus classicus cases – A&M Records, Inc. v. Napster, Inc. and Metro-Goldwyn-Mayer Studios Inc v Grokster which are treated in turn

United States

A&M Records, Inc. v. Napster, Inc.[33]

As described by Hocking, the Napster case “is something of a ‘watershed moment’ in the development of US law in this area”[34] as it is the first notable case that addressed file sharing. Music producers were united in their war against the “monstrous” activity and they fought with great zeal. A brief analysis of the Napster system will be given.[35] This will be followed by a brief analysis of the case and reasoning of the court.

i.                    Napster System

The Napster system, an archetypal “peer-to-peer” framework, allowed for the loading and downloading of files onto the personal computers of users through the connection with the Napster server. This system enabled users to locate and retrieve files whenever they so wish regardless of where they were.  They were also able to locate files placed on other user’s computer. There was however no central server as Napster system merely facilitated the activities of users by allowing them to retrieve documents from corresponding computers that are voluntarily aligned to the Napster system. The copyright concerns raised by this practice motivated a legal action against Napster Inc. by key players within the music industry.

 

ii.                  The Case

In the first instance, the District Court for the Northern District of California issued a preliminary injunction against Napster on the use of most of the copyrighted files. This decision was however challenged on appeal in which the trial court’s decision was upheld by the Ninth Circuit which found that the “sharing” of the copyrighted files by Napster did not qualify under the fair use rule and as such did not come within the category of exemptions from and limitations on copyright infringements provided in laws such as the Audio Home Recording Act or the Digital Millennium Copyright Act (DMCA).

As against the exclusive right of reproduction and distribution granted to copyright holders, the claim was that the Napster system encouraged users to burn CDs and then connect it to the Napster system for others to download. The former can be termed as “reproduction,” while the placing on the file within the range of the Napster system can be termed as “distribution”.

Action was brought against Napster because the copyright holders realised the burden and cost associated with pursing direct infringers. The claim against Napster was for “contributory infringement” or “vicarious infringement.”  Analysing the case, the Ninth Circuit assessed whether the file-sharing activity amounted to fair use. The court ruled that Napster’s activity did not qualify for any of the “safe harbour” exceptions. The Court was of the opinion that burning of music files could not be considered as a “transformative act” which would have been an acceptable use under section 107 of the Copyright Act. Moreover, the activities of Napster were commercially motivated as the “repeated exploitative use” was enough to disqualify the practice from being considered under the fair use exception.

The reasoning of the Court in this case has been likened to that in the Betamax case in the context of a new technology.[36] The court held that “absent any specific information which identifies infringing activity, a computer system operator cannot be liable for contributory infringement merely because the structure of the system allows for the exchange of copyrighted material.”[37] The allegation against Napster was sustained on the fact that it knowingly facilitated the infringement as it had possession of “specific information”.  The court therefore ruled that Napster was liable because it had actual knowledge of the infringement coupled with the fact that it materially contributed to the infringement as it was capable of supervising and controlling the activities of users. It could easily have stopped the infringement by switching off its system.  This makes it distinguishable from Betamax.[38] 

 

Metro-Goldwyn-Mayer Studios Inc v Grokster [39] 

Grokster case did bring to light the rate of velocity in the world of technology[40] and also the need to ensure that the law meets up with the pace of technology. Even before it was decided, it was already known that the case would revolutionise the legal regime surrounding P2P.[41]

In this case, action for contributory negligence was instituted against Grokster Ltd and StreamCast Networks, Inc. for distributing, distributed freeware products that enabled subscribers to download and share files through Peer to Peer networks. Of material importance in this case was the fact the network provided by the defendants did not utilise a central server which therefore renders the case materially different from the Napster case.[42] It was alleged that Grokster and StreamCast were liable as they had knowingly and intentionally distributed their software in order to enable the infringement of section 101 of the Copyright Act. The Trial Court refused the claim which was approved by the Court of Appeal on the grounds that the defendants did not have actual knowledge of the specific infringement.[43]

 To establish that a party is liable for contributory negligence, the court considered the reasoning in Sony Corp. of America v. Universal City Studios, Inc[44] to the effect that where a product can be used for substantially non-infringing use,[45] then the supplier cannot be held liable provided that he has no actual knowledge or has taken appropriate steps to curtail such illegal use.[46]  On the balance of the case, it appeared that the only possible issue against the defendants was that their product could potentially be used to infringe copyright. The Court stated that:

“Sony dealt with a claim of liability based solely on distributing a product with alternative lawful and unlawful uses, with knowledge that some users would follow the unlawful course. The case struck a balance between the interests of protection and innovation by holding that the product's capability of substantial lawful employment should bar the imputation of fault and consequent secondary liability for the unlawful acts of others. MGM's evidence in this case most obviously addresses a different basis of liability for distributing a product open to alternative uses. Here, evidence of the distributors' words and deeds going beyond distribution as such shows a purpose to cause and profit from third-party acts of copyright infringement.”[47]

Addressing the issue whether a software developer/distributor could be held liable for the infringing act of a third party, the court held that such developer would be liable if it is manifestly clear that the purpose for distributing the software is to facilitate the infringement. Such intension will be manifested if there is a “clear expression or other affirmative steps taken to foster infringement.”

The Court had to balance two competing policy ideals – the need to promote innovation and the need to encourage creativity. Ultimately in its decision against the defendants, the Supreme Court held that they took active steps in facilitating the infringement. For instance, the SteamCast tried to attract Napster’s former users etc. Moreover, no efforts were made by the defendants to curb the illegal activities.

Aftermath of this decision is that developers should make sure that their product is substantially used for legal purposes.[48] However, it is important to note that the liability of a developer/distributor is not absolute such that they are relieved of liability once they can establish that they have done enough to circumvent the infringing uses. In this regard therefore, Hockings’ words is worthy of note. He stated that “[d]espite the software in Grokster clearly passing the Betamax test, it seems that the latter still applies. In the absence of ‘clear expression or other affirmative steps taken to foster infringement’, it seems unlikely that the design of the software alone is sufficient to impose liability, provided it is capable of substantial non-infringing use (which P2P software invariably is).”[49]

Chapter 3

Evolution of Cases in the Commonwealth and Europe

The issue of illegal file sharing is global but the approach to tackling it seems to differ from jurisdiction to jurisdiction. For instance, as opposed to the United State, development in the United Kingdom has been relatively slow. The position in other countries such as Australia on the other hand seems to be closer to the United States. The Court of Justice of the European Union has also taken part in shaping the legal landscape on illegal file sharing. These developments will be analysed here

United Kingdom

As mentioned above, the UK position on file sharing has been rather uneventful with only two cases dealing with the issue. They are addressed in turn

CBS Songs Ltd v Amstrad Consumer Electronics Plc.[50]

The position of the law in the UK as could be teased from Amstrad was that a developer could not be held liable for secondary infringement merely because he designed a software that is capable of infringing use so long as such person does not give an express approval to the infringing activity or affirmed it. In this case, the court was called upon to ascertain whether by producing tape machines that enabled high speed copying, Amstrad was invariably liable for secondary infringement.  The case was not unfounded considering that English law did not provide for fair use defence. Neither is home copying part of the “fair dealing” defence. The claim was thus that Amstrad contravened the provision of section 16(2) of the Copyright, Designs and Patents Act.  However, the court was not convinced as to Amstrad’s culpability and therefore ruled that Amstrad’s product was merely facilitative rather than authorising the infringement. Moreover, it ruled that Amstrad could not be held liable considering that it did not have control of the models once they were sold. As such, the claim was dismissed.  

With regards to the precarious position of the law and the motivations behind home copying, the court stated that:

“From the point of view of society the present position is lamentable. Millions of breaches of the law must be committed by home copiers every year. Some home copiers may break the law in ignorance, despite extensive publicity and warning notices on records, tapes and films. Some home copiers may break the law because they estimate that the chances of detection are non-existent. Some home copiers may consider that the entertainment and recording industry already exhibit all the characteristics of undesirable monopoly - lavish expenses, extravagant earnings and exorbitant profits - and that the blank tape is the only restraint on further increases in the prices of records. Whatever the reason for home copying, the beat of Sergeant Pepper and the soaring sounds of the Miserere from unlawful copies are more powerful than law-abiding instincts or twinges of conscience. A law which is treated with such contempt should be amended or repealed”[51]

 

Twentieth Century Fox Film Corp v Newzbin Ltd[52]

In this more recent case, a suit was brought against Newzbin for the infringing activities of its subscribers. The claim was that Newzbin enabled the infringement by easing the process by which binary contents on the Usenet platform could be aggregated rather than being uploaded and retrieved individually. For this service, Newzbin collected 30 pens per week. There were no doubt that Newzbin’s services made it easy for users to download music and videos.  Moreover, Newzbin’s involvement is reinforced by the fact that it designated some members as “editors” who were tasked with checking the quality of the message on Usenet.

Twentieth Century Fox challenged this practice but Newzbin simply claimed to “content agnostic” just like any typical search engine and that it was merely an “intermediary in providing a link to the sites from which Fox's films may be downloaded”.[53] The court was however unconvinced with Newzbin’s defence as even though authorisation cannot be said to “extend to mere enablement, assistance, or even encouragement”, it was clear that Newzbin “provided the means for infringement … and [was] entirely within the defendant's control.”[54] Further acts that ascertained Newzbin’s culpability was that it gave special privilege to copyrighted materials to its “premium members.”

In his judgment, Judge Kitchin made reference to Section 16 of the Copyright, Designs and Patents Act 1988 regarding the protection of films. In his assessment of the term “authorisation” the judge referred  to CBS Songs Ltd v Amstrad Consumer Electronics Plc[55] in which the term “to authorise” was considered to imply a grant or  to mean the purporting to grant to a third person the right to do an allegedly infringing act. In line with what has been stated above, the court was convinced that Newzbin authorised the infringement. Following from authorisation, it is equally important that in order to be able to establish liability for secondary infringement, it need to be shown that the developer was not merely assisting of facilitating the primary infringement. Newzbin was further held culpable for communicating copyrighted materials to the public in violation of section 20(2)(b) of the CPDA. The Court stated that:

“The reports in the Newzbin index provide a considerable body of very useful information in relation to each title. They include descriptive information, the URL and an NFO file which identifies the individual user who posted the content to Usenet, the email address of that user, information from which the date on which the content was posted to Usenet can be deduced and the number of files making up the particular work.”[56

The decision against Newzbin was sustained despite the fact that it posted warning on its website about unauthorised use of copyright materials. The gesture, according to the judge, was merely cosmetic. Kitchin J stated that:

“I have found that the defendant has engaged in a deliberate course of conduct well knowing that the vast majority of the materials in the Movies category of Newzbin are commercial and so likely to be protected by copyright and that the users of Newzbin who download those materials are infringing that copyright.”[57]

The decision in Newzbin has attracted academic support as it was considered by Massey that Newzbin did not provide its service in a “content agnostic” fashion.[58]

While this case provides a much needed jurisprudence in this area of the law, it has been considered to be of limited effect to the kind of file sharing services that exists today.[59] This is because Newzbin’s services were quite old fashioned and was more akin to Napster’s system where a central server was in place. More recent platforms do not use central servers as was the case in Grokster. The absence of clear judicial statement in this regard therefore means that the position of the law remains unclear with regards to more advanced file sharing technologies.[60]

European Union

What is expected of content owners and ISPs with regards illegal file sharing? This question has been answered at the European level particularly as to right of action which a right holder has over a content owner as well as the extent to which an ISP can be compelled to monitor and punish secondary infringers. This was addressed in the case of Scarlet Extended SA v the Société belge des auteurs, compositeurs et editeurs SCRL (SABAM) which is detailed below.

SABAM

This case was brought before the Court of Justice through a preliminary reference request made by the Brussels Court of Appeal. Scarlet, an ISP, had refused to install a filtering electronic communication system which was meant to monitor and prevent the illegal activities of P2P file sharing software programmes. Attempt was therefore made to by SABAM, a management company which represented authors, composer, and editors to compel Scarlet to incorporate the necessary filing system.[61] SABAM sought to compel Scarlet through interlocutory proceedings wherein it claimed that Scarlet was best placed to check these illicit activities. A declaratory order was therefore sought in order to establish that infringements were taking place through Scarlet’s services. An order was therefore sought for the blocking of internet service to infringing users who are subscribers of Scarlet. The claimant also sought to impose a tough policing responsibility on Scarlet who they said should be compelled to provide a system that renders illegal file sharing impossible except with the permission of right holders.[62]

Before the Belgian Court, it was established by an expert that technical solution of the sought requested of Scarlet could not be ruled out given the present level of technological advancement. The Court therefore mandated Scarlet to put in place such technology. This decision was however appealed by Scarlet on the grounds that the effectiveness and permanence of the so-called filtering service has not been established. Moreover, the request was considered impractical considering that developers often firewall their P2P software programmes. Moreover, the injunction was in violation of EU law as contrary to the provision of  Article 15 of Directive 2000/31, it will require surveillance of all information that passes through Scarlet’s internet service considering that filtering activity makes use of IP addresses which, it was contended, constituted personal data which should be protected.[63] It was at this point that the Court of Appeal forwarded the case to the Court of Justice for preliminary ruling.[64]

The Court of Justice was asked to ascertain whether “Directives 2000/31, 2001/29, 2004/48, 95/46 and 2002/58,7 read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction imposed on an internet service provider to introduce a system for filtering all electronic communications passing via its services which applies indiscriminately to all its customers as a preventative measure for an unlimited period, exclusively at its expense.”

In its reasoning, the Court of Justice started by referring to its own ruling in L'Oreal in which it had held that national courts are to allow intellectual property right holders to compel intermediaries to stop the infringing activities being perpetuated through their services. This position was further supported with the provision of article 8 of Directive 2001/29 and article 11 of Directive 2004/48 requires that the procedures to be followed were a matter for national law. The Court however noted that this has to be in line with EU directives. The Court therefore ruled that article 15(1) of Directive 2000/31 prohibits national measures that requires the imposition of obligation on ISPs with regards to the general monitoring of the information transmitted on their network as such obligation would be incompatible with the Article 3 of Directive 2004/48, which requires that measures taken in the pursuit of IPR protection should be fair and proportionate and must not be too costly.

Regarding the propriety of the monitoring request, the Court of Justice identified that for such filtering service to be effective, the ISP would first have to sieve out from the transmitted information, the files that relating to P2P activities. Secondly, the ISP is meant to further streamline this search in order to identify copyright protected materials that relate to the claimant. Thirdly, the ISP is expected to flag out the activities that are conducted unlawfully. This convinced the Court that the filtering service could only be implemented if all electronic communication were monitored. As much as it is important to protect IPRs, this raised fundamental right concerns which should by all means be taken into consideration.[65]

The Court ruled that Scarlet could not be compelled to monitor the activities of its subscribers. In any case, the need for monitoring would only arise if it has been shown that the ISP has failed to take necessary measures to prevent the infringement after becoming aware of the infringing activities.[66] Moreover, the court emphasised that the right for the protection of intellectual property is not absolute and inviolable and as such has to be balanced against other values such as the fundamental rights of others. This includes the ISPs right to conduct business. The Court reckoned that such monitoring service will imperil an ISP’s business as subscribers will exit the service in droves. This is coupled with the financial burden involved. Furthermore, the right to privacy of subscribers will compromised by such measure. The only instance where such right can be compromised is when it involves a criminal issue.[67]

Australia

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd[68]

This case is the Australian equivalent of the Grokster case which has gained attention because of the cleverness of the secondary infringer.[69] In this case, a claim was instituted against Sharman Network, a company that operated the Kazaa Peer-to-Peer file-sharing software programme. Allegation against Sherman Network was that its software authorised the illegal activity of file downloads. Denying the allegation, Sherman Network contended that it could not be held liable for secondary infringement since it did not have any form of control over the activities of its users and that the only form of control it exercised was merely to put in place an anti-pornography filters in its Kazaa software. Though the claimant conceded that  “Sharman was not able to control the decisions of individual users” as to the purpose for which the subscriber uses the software, it noted that Sharman Network was still culpable considering that it failed to take necessary steps to curb the activities in instances where it had the chance to do so. For instance, it failed to incorporate filtering system into the updated versions of the software. Also, Sharman Network encouraged the activities by providing two types of files; blue and gold files. While the blue files were totally controlled by users there was no doubt the gold files were controlled by Sherman Network from a central server. 

Following the reasoning in Grokster, the Australian Court was convinced as to the culpability of Sherman Network in the facilitation the infringement and hence was held liable for secondary infringement. To further justify their culpability, the court noted that “2 of the defendants sponsored a web campaign attacking the record companies and their opposition to the sharing of copyright music files”.[70]

Some have however considered the position of the court on “authorisation” as constituting an assault on common sense.[71] Scott therefore argues that “[t]he concept of authorization in copyright law makes people responsible for the independent actions of others. It creates a positive obligation on ordinary businesses to foster the business interests of others and therefore creates a chilling atmosphere for business venturers.” He then drew an analogy with the driving of a car above speed limit. Above all, he stated that “[i]t is hard to see why online entrepreneurs ought to be exposed to risks which their offline counterparts are not. Indeed, in emerging industries it is more common to attempt to create a legislative environment which encourages economic activity, rather than stifles it or, as we have seen in this case, brings it into conflict with existing industries. The knowledge economy is a lot to sacrifice in the pursuit of an unattainable ideal. It may be that this aspect of the law is outdated and should be revised to bring it into line with standard commercial practice in the broader economy.”[72]

Chapter 4

Legislating Against File Sharing – the Critique of the Role of Secondary Infringers

Legislating against file sharing has undergone a checkered gestation[73] characterised by inadequate foresight and missed opportunities.[74] In today’s regulatory landscape, it appears that right holders are realising the folly in pursuing only secondary infringers.[75] Despite the crackdown on secondary infringers, illegal file sharing still persist partly because file hosting providers have found ways to work round the provisions of the law in order to escape culpability[76] coupled with the fact that some infringing sites are well outside the jurisdiction of regulators. This made it imperative that actions should also be taken in order to dissuade direct infringers. Direct pursuits of infringers remain far-fetched. It was thus considered necessary to involve Internet Service Providers (ISPs).  This did not go down well with ISPs who vehemently fought against being involved.[77] Some have argued that they were disinterested because P2P file sharing was economically beneficial to them as it helped to prime the broadband pump.[78] However, in recent times, they are more receptive to the idea. It has been argued that the reason for this is not unconnected to the fact that there are now more legitimate means of P2P file sharing such as through iTunes, Rhapsody, Amazon, Vudu and Spotify.

Their more receptive attitude notwithstanding, the unfolding legislative climate appears to place a burden on ISP in the policing of infringement. This of course would be well received by the producers and right holders considering that their litigation efforts over the years have not achieved much success. In the US for example, copyright owners went directly against ISPs with what is termed “John Doe subpoenas” which required ISPs to provide the name of account holder from which illegal materials were being downloaded. Also for business reasons, ISPs did not find this to be in their interest and as such resisted the efforts. Part of the mechanism that was suggested was a damage demand whereby liability of up to $750 would be imposed on infringers. This drew a lot of criticism because of the randomness of the enforcement.[79] The alternative measure was to have ISPs alert subscribers as to the possibility of illegal activity taking place. This could be in the form of a pop up or a redirection to a different site that contains the alert.

If after the alert, the user fails to heed the warning, this could lead to “mitigating measure” being imposed. This could be in the form of reduction of internet speed, redirection of subscribers to a landing which would only be fixed when they contact the ISP in order to discuss the matter or reviews.[80] The subscriber could also be mandated to respond to some educational information about copyright. These are merely suggestions as to the way the mitigating measure could operate as it lies with individual ISPs to fashion their own mechanism. As Pessach argues, the advancement of routing technology makes it even more difficult for ISPs to shirk the monitoring duties.[81]

Similar development arose in the United Kingdom following the passing of the Digital Economy Act in 2010. As an amendment to the 2003 Communications Act, the DEA added two new obligations for ISPs which were referred to as the “initial obligations”. The first one requires ISPs to notify their subscribers if the IP addresses associated with them which are reported by copyright owners as being used to infringe copyright. The second obligation requires ISPs to monitor the number of reports on each subscriber. They are also required to compile an anonymous “copyright infringement list” of those who have received three or more notifications within a 12-month period.

The Act allows right holders to take action against infringers after obtaining a court order to obtain personal details of infringers from ISPs. This is in addition to the power against online infringement provided for in the Copyright Design and Patent Act. Though aimed at promoting creativity and deterring copyright infringement, the original content of the DEA was not very well received. The Act sought to erode inviolability of the home copier’s living room which was by all means considered to be ill conceived. Concerns that were raised included the fact that the Act was in conflict with laws such as the Data Protection Act 1998 and with Human Rights.[82] For instance, the Data protection and human right concerns were highlighted in the case of Golden Eye (International) Ltd v Telefonica UK Ltd[83] wherein the court was faced with the task of ascertaining whether to grant Norwich Pharmacal disclosure orders compelling an internet service provider (ISP) to disclose customer details in order for the claimant to take necessary actions against alleged illegal file sharers.[84]

Though the court did not consider the request to be out of order, it set out clearly what the content of letters of claim should be and the procedure that must be followed in order to protect the data privacy right of consumers and also to ensure fairness.[85] This meant that it failed to attract support but rather attracted condemnation from academics and politicians. The fact that the Act seeks to pursue claims against repeat offenders on individual basis was considered not to be ideal considering the financial repercussion of such exercise.[86]

Moreover, it has been contended that the Act fails to target the facilitating software thereby missing the opportunity of holding P2P hosts liable for secondary infringement.[87] This has led Hocking to contend that the DEA is “ultimately not enforceable in the sense that it will get rid of illegal downloading” and that its provisions which “are not clear, appear to be too broad to be precise, and are of questionable effectiveness”.[88]  In an effort to amend the law, different propositions have been advanced. There have been debates on the need to engage ISPs in the monitoring of illegal file-sharing activities.[89] This has however met serious resistance by the ISPs. While the ISPs have to some extent been able to limit the nature of their role, they have not been able to escape the responsibility of monitoring illegal file sharing.[90] For example, Blamires et al detailed BT’s failure to stop an injunction which required it to block the internet service it provides to customers that facilitated illegal file sharing.[91] There were however some other proposals that have been abandoned. For instance, reviewer decided drop the proposal for the blocking of sites because it was considered to be ineffective.[92]

The legislative attempts being put in place notwithstanding, monitoring and detecting illegal file sharing even with all these mechanisms still remains a difficult task.[93] The particular case of BitTorrent tracking has been identified by Harding.[94] He notes that the weaknesses of specialised software which are used to monitor illegal file sharing may raise issues as to their evidential weight and probative value.[95] The technicality involved is also addressed by Chothia et al in their study, “The Unbearable Lightness of Monitoring”.[96]

Another legislative trend is strengthening the efficacy of the mechanism against illegal file sharing through the regulation by code.[97] This has been likened to Lessig's assertion that "code is law". There are however serious issues to be considered with regards to the regulation of the protocols and architecture of the internet, regulation by law and code, and the use of code to detect infringement and apply enforcement.[98]

One major concern that has refused to abate is that energy put into the creation of a legislative framework is lopsided against file sharer. Particular mention has been made of the use of notice-and-takedown regimes which has been said to pay little or no regard to the file sharers' right to freedom of expression.[99]

As mentioned above, with particular regards to the role of ISP, it is noteworthy that due to the pressure mounted by ISPs such as BT and TalkTalk’s, Office of Communication (Ofcom) has published a revised draft of the Initial Obligations Code (“Code”) to the DEA. The Code has been revised in two key areas. First, Ofcom is to establish a public available standard aimed at promoting good practice in the gathering of evidence. Secondly, ISPs are required to include in their notification letter the number of infringement report flagged from the subscriber’s account. There will be a 20 day period within which those who receive notification can appeal against the allegation in accordance with the procedure set out in the Code.[100]

The concerns of ISPs have also been addressed by Ofcom as it published a consultation particularly on the sharing of costs. Being an improvement to earlier propositions which placed more cost burden on ISPs, the Cost Order primarily places financial obligation on the copyright owners as well as most of all the cost incurred on appeal. They are also to bear up to 75% of the cost incurred by ISPs in the carrying out of their monitoring obligations.[101] However, subscribers cannot be held liable if it can show that it has taken “reasonable steps” to stop the infringing activities. Unlike the initial proposal which suggested that “reasonableness” was to be determined through a subjective analysis of the subscriber’s technical ability, the Code now ascertains “reasonableness on the basis of objective standard. This objective test of reasonableness has not been received favourably by the consumer groups. For example, a statutory watchdog called Consumer Focus pointed at the need for Ofcom to “mitigate the chilling effect on internet access provided to consumers by Wi-Fi providers, businesses and public bodies that would result from lack of guidance on reasonable steps … particularly in relation to open WiFi.”[102]

 This revised provision has unsurprisingly been well received by producers and copyright owners who believe that the new regime will go a long way in protecting their interest.[103] In the same light, the UK government continues to support the DEA.[104]

Chapter 5

Fair Use and Private Copying Exception

As much as it has been stated that illegal file sharing should be stamped out, one should not lose sight of the fact that some activities might be exempted. Of particular note here is the fair use exception in the United States. It is equally noteworthy that English law does not provide for this exception. However, as an aftermath of the Hargreaves report, it has been noted that there might be need for some kind of exception if we are to thoroughly strike a balance between the pursuits of innovation on the one hand and creativity on the other hand. This chapter will therefore assess fair use exception in US and the potential scope of the fair copying exception in the United Kingdom.

Fair Use in the United State

Fair use exception has been a long standing safe harbour exception in the United State. As it would be expected therefore, fair use has been invoked as justification for file downloading and uploading activities.[105] A notable case is Lenz v Universal Music Group Corp.[106] In this case, plaintiff had recorded a 29-second video which she uploaded unto Youtube.com. The video contained motion picture of his son dancing to Prince’s song, “Let's Go Crazy”. Universal, the producer of the song then made a report to Youtube.com about an infringement pointing them to the provision of section 512(c) of the DMCA. YouTube complied with the request by removing the video and it consequently informed the plaintiff. Dissatisfied, the plaintiff instituting an action, alleging that its activity should qualify under the fair use exception. Though the court did not rule on the question of fair use, it had reason to doubt the motive of Universal primarily because it refused to avert its mind to the possibility that the post could well qualify under the fair use exception.

This issue was more readily addressed in Sony BMG Music v Tenenbaum.[107] In this case, the trial judge Gertner J admitted that she was “deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of [behaviour] brought on by the internet” and as such would take necessary measures within her powers to protect the interest of the defendant.[108]

If the tone of the judge was anything to go by, one would expect that she would rule in favour of the defendant. But that was not the case. Decision was given in favour of the claimant establishing infringement because the defendant was too ambitious as he launched what the judge termed “a broadside attack” against producers by invariably requesting that all file sharing activities which is for private enjoyment should be permitted under the fair use exception.  In reaching her decision, the judge considered the argument that the file sharing activity did not generate any profit to be too simplistic. As such, a private use will be considered to be commercial in nature even if there is no actual profit involved so long as it does not fall within the use that are recognised as a matter of policy. Such use includes commentary, criticism, teaching, news reporting, research and scholarship. The court then had to pronounce on the “technological interregnum” which was argued to have applied between 1999 and 2003 when there were no legitimate alternatives to file sharing.

While this argument is not without substance, the court still held the defendant liable because he continued the practice long after there were viable legitimate alternative means of file download in the market. The Judge also refused to acknowledge the “technology interregnum” exception because she feared that it would invariably by overruling the Grokster. However, the court left open the possibility of a fair use defence for in justifying an alleged file sharing infringement if compelling arguments are made. She hinted as to the kind of activities that might qualify by identifying, specifically, instances where file sharing was meant “for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently”.[109]

Similar issue has been addressed in the earlier case of BMG Music v Gonzalez[110] Wherein it was argued by the defendant that for as long as the Supreme Court allows the fair use exception to be invoked in justifying unauthorised time-shifting regardless of the absence of statutory basis in that regard as noted in Sony Corp v Universal City Studios Inc,[111] it behoves in the same light that downloading activities aimed at sampling a product should be accepted.  Unconvinced by this line of argument, Easterbrook J held that the argument that the files were downloaded for sampling purpose was overstretched considering that the downloads were kept permanently when in fact they should have been paid for.[112] 

The position of the law with regards to file sharing and fair use exception has elicited intense emotions from stakeholders. Noteworthy is the concern raised by Gertner J in Tenenbaum who appealed to the United State Congress for an amendment to statutory provision in this area. She noted that:

“There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but … the record companies do not even have to prove actual damage. ‘Repeatedly, as new developments have occurred in this country, it has been Congress that has fashioned the new rules that new technology made necessary.’ … It is a responsibility that Congress should not take lightly in the face of this litigation and the thousands of suits like it.”

Various reasons have been given for the present hostility towards the fair use defence. Dogan contends that the temperament of the court is not unconnected to the erosion of the broad nature of the exception. This has meant that the court follows a market failure approach as it would only feel compelled to accept the exception where there has been a transformative use.[113]

Private Copying in the United Kingdom

The United Kingdom unlike its counterpart in continental Europe, permit only limited instance of private copying[114] which is basically limited to time shifting of broadcasts and copying for non-commercial research and private study. However, the Hargreaves Review has set in motion a potential amendment to the law such that the scope of the private copying exception may be broadened to include copying from lawfully acquired originals for private and non-commercial use. The perceived need for the change in the law is not unrelated to the aspiration to better align the position of the law with consumer practice and expectation which Karapapa believes would have an impact in the long run on innovation and growth by stimulating further creativity.[115]

Europe wide, the issue of private copying has received judicial attention. Two cases are of paramount importance in this regard. They are Padawan[116] and Opus[117]where the Court of Justice was faced with ascertaining what amounted to fair compensation for private use.[118] These cases highlight the difference between the private use and the US fair use exception as Court of Justice affirmed the need to compensate the harm that results from private copying.[119] Without giving a definition of “harm” the Court of Justice made it categorically clear that it is fair to request fair compensation as a precondition for introducing the private copying exception. This, the court believes, is in line with Article 5(2)(b) of the Copyright Directive which states that Member states may “provide for exceptions or limitations to the reproduction right … in respect of reproductions made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the right holders receive fair compensation which takes account of the application or non-application of technological measures … to the work or other subject-matter concerned”.[120]

Based on the foregoing, the UK going forward is equally buoyed by the possibility of introducing the private copying exception which could invariably cover file sharing activities albeit with some reluctance about introducing the precondition of fair compensation for harm caused by such use. The government’s response to the Hargreaves Review suggests that there will be three main elements upon which the proposed UK private copying exception is likely to be premised. First is that the amount of harm caused by private copying should remain minimal and hence there will be no need to fairly remunerate the right holders. Secondly, the exception should adhere to EU law and international treaties. Thirdly, it should not be overridden by contractual or technological means in way as to undermine its benefits.[121]

 If the UK regime is to avoid the need for users to compensate for harm caused, it is imperative, as noted by Karapapa, that the government “retain the scope of the exception [to be] as limited as possible [if it is] to ensure that harm is kept at a minimal level.”[122] She stated further that to ensure minimal impact of right holders and as such to justify the absence of compensation for private copy, the law must impose internal limitations to the scope of the exception. Karapapa asserts that this can take place in many different ways but made particular mention of three ways of exercising such restriction. This could be achieved by; limiting the beneficiaries of the exception, restricting the activities that are permitted, and finally, imposing a condition that the exception should apply only in respect of copies that are made from a lawfully owned original.[123]

Developing further on the first exception, Karapapa notes that limiting the beneficiaries of this exception can help reduce the nature of harm that could arise from private copying.  This could be achieved for instance by requiring that the exception applies only where it sis for strictly personal use. This is the case in countries such as Czech Republic, Austria, Denmark, Romania and Latvia. However, the problem with this condition is that it is practically impossible to monitor whether the copying was done for strictly personal use or otherwise.[124]

Further, if harm is to be narrowed down, it is imperative that the law limits the activities that are considered to be within the scope of the exception. It has been noted that the provisions   permits a broad category of “use”. Particularly, Article 5(2)(b) of the Copyright Directive permits copying for private use which extends beyond mere copying to encompass activities such as lending copies to friends, performing music at a birthday party or perhaps online file sharing. This wide scope, it has been noted increases the chance that harm will arise from the private copying exception. Hence, if the UK is to avoid compensating for harm, it must consider excluding activities such as P2P file sharing from the permissible activities under the private copying exception.

The third limiting that has been identified relates to the lawfulness of the source copy. It has been suggested that if the harm to right holders is to be limited, the application of the private copy exception should be streamlined to lawful use. If one is to put this exception in the context of the file sharing, it would mean that the initial file should have been obtained through a lawful means such as iTunes or amazon as a precondition for considering the act under the private use exception. In light of the deliberation in the United Kingdom, a number or options are worth considering regarding the application of the private use exception and in particular how it should operate within the specific context of P2P file sharing. First thing would be do nothing in this regard so private copying continues to be unlawful and consequently, all form of illegal file sharing whether for commercial or non-commercial use will be considered to constitute an infringement.

Secondly would be to allow for the introduction of a narrow private copying exception whereby works that are lawfully owned can be reproduced by an individual onto any medium or device owned or controlled by that individual for their private and non-commercial use. It is quite curious how this will apply in the context of P2P file sharing. One wonders whether if a person buys music from iTunes which he then transform into another kind of digital form before placing it free of charge on a platform where others could have access to it, would such activity be covered by this suggestion as falling under the private copy exception? Another option would be to consider within the exception transfer of such materials between members of a family or within domestic circle.

Further, it could be considered whether the law should still recognise activities done where the content being copied does not belong to the individual doing the copying.[125] This would also have considerable implication for P2P file sharing as it might exonerate everybody involved in the practice. In a nutshell, the effect will be that those who upload and download files can claim private use as long as they have downloaded them for their personal use. This will also have repercussion for software developer and ISP as there would be no basis to hinge secondary infringement claims.

Chapter 6

Conclusion

The protection and exclusive exploitation of copyrighted materials by owners has never faced a greater challenge than the one posed by advancement of technology. Now it is very easy to illegally enjoy the creative work of others without paying for such service. However as dire as it sounds in the legal context, it is quite unclear whether illegal file sharing has an actual economic impact on right holders. Different reports that have been considered are to the effect that file sharing for example in the music industry has an effect which is undisguisable from zero.  Nevertheless, one must take seriously the concerns expressed by right holders. In any case, it is their right and since the law provides for its protection, the actual impact of the file sharing should be but a secondary issue.

The gradual gestation of the position of the law as it relates to illegal file sharing of copyrighted materials has been carefully detailed. As a matter of necessity, it was imperative that the important US cases in this regard are charted. The dissertation has also revealed that the slow pace of the legal development in the United Kingdom.  Further, in light of the need for the law to move at the same pace with technology, the dissertation also looks at the responsive legislative measures that have been adopted and which have been proposed. The legal and practical issues arising from the application of these proposed laws were also addressed. In this regard, particular focus was placed on the role of the ISPs in the monitoring of infringing activities of internet subscribers. Importantly, the dissertation then considered the possibility of exempting file sharing activities by detailing the legal position with regards to the fair use exception in the United States and the proposed private copy exception in the United Kingdom.

One thing that can be drawn from the analyses carried out relates to the difficulty of balancing the right of users assess and obtain information as against the right of holders to reap the financial benefit for their creative work. These two ideals are quite delicately poised which renders it even more difficult to ascertain how best to proceed. On the one hand, we might be bemused by the fact that big companies pursue hapless and helpless citizens when in fact they continue to gross high income from the creative works they produce. The case of Tenenbaum brings to fore this concern. However, on the other hand, one may equally question the illegal activities of file sharers. If we do not consider it ideal to walk into a market and pick an apple without paying the farmer, why should we take for granted the right of the producer to get adequate recompense in return for our enjoyment of their activity. Moreover, if P2P file sharing goes unabated, it is only a matter of time that there will be no quality movies and music to download as those in the creative industry would be discouraged from developing their talents. Any justification for P2P file sharing is even further weakened by the fact that there are alternative legal means through which users can enjoy copyrighted materials.

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6.      Sweeney, M “Ofcom outlines new anti-piracy rules Draft code details new 'three strikes' policy for illegal downloaders, to come into effect from March 2014” The Guardian  [http://www.guardian.co.uk/technology/2012/jun/26/ofcom-outlines-anti-piracy-rules].

Official Documents

1.      See e.g., Privacy and Piracy: The Paradox of Illegal File Sharing on Peer-to-Peer Networks and the Impact of Technology on the Entertainment Industry: Hearing Before the Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, United State Senate, One Hundred Eight Congress, first session, September 30 2003, Washington : U.S. G.P.O. : 2004

Table of Cases

Scarlet Extended SA v the Société belge des auteurs, compositeurs et editeurs SCRL (SABAM)

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242

Sony Corp v Universal City Studios 464 U.S. 417 (1984).

Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608. 

A&M Records, Inc. v. Napster, Inc 239 F.3d 1004 (2001). 

CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] A.C. 1013

Metro-Goldwyn-Mayer Studios Inc v Grokster 545 U.S. 913 (2005)

Golden Eye (International) Ltd v Telefonica UK Ltd [2012] EWCA Civ 1740.                           

Media C.A.T Limited –v- Adams & Ors & ACS Law & Andrew Crossley [2011] EWPCC 10.

Padawan SL v. Sociedad General de Autores y Editores (SGAE) (C-467/08) 

 C-462/09 Stichting de Thuiskopie v. Opus. 

BMG Music v Gonzalez 430 F.3d 888 (7th Cir. 2005).

Media C.A.T Limited –v- Adams & Ors & ACS Law & Andrew Crossley [2011] EWPCC 10.    

Table of Statutes

Digital Economy Act 2010

US Copyright Act 1976

Digital Millennium Copyright Act 1998

Copyright, Design and Patent Act 1998

Footnotes

[1] C Andrepont, “Digital Millenium Copyright Act: Copyright Protection for the Digital Age [Legislation]” (1999) 9(2) DePaul-LCA Journal of Art and Entertainment Law, Vol. 9, Issue 2 (Spring 1999) 397.

[2] See e.g., J Barlow, “The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age” (1994) WIRED 84-129.

[3] Ibid.

[4] L Eko, “American Exceptionalism, the French Exception, Intellectual Property Law, and Peer-to-Peer File Sharing on the Internet (2010) 10(1) John Marshall Review of Intellectual Property Law i.

[5] Barlow supra, 84-90, 126-129.

[6] See J Farmer, “The Specter of Crypto-Anarchy: Regulating Anonymity- Protecting Peer-to-Peer Networks” (2003) 72 Fordham Law Review725-758.

[7] See generally, D Colletti, “Technology under Siege: Peer-to-Peer Technology is the Victim of the Entertainment Industry’s Misguided Attack” (2003) 71(2) George Washington Law Review, 255-271

[8] See J Hall, “Recording Industry Association of America v Peer-to-Peer File Sharing: How David Can Slay Goliath” (2009) 2(1) Phoenix Law Review 145-162. Proposition has however been made on how to re-condition the perception of the public. See Y Feldman and J Nadler, “The Law and Norms of File Sharing” (2006) 43(3) San Diego Law Review, 577-618.

[9] H Goldberg, “A Proposal or an International Licensing Body to Combat File Sharing and Digital Copyright Infringement” (2002) 48 Boston University Journal of Science and technology Law 272, 282; A Jacover, “I Want My MP3! Creating a Legal and Practical Scheme to Combat Copyright Infringement on Peer-to-Peer Internet Applications” (2001-2002) 90 Georgetown Law Journal 2207; R Hirning, “Contributory and Vicarious Copyright Infringement in Computer Software” (2006-2007) 6 Journal of Intellectual Property 10-31.

[10] D Lichtman and W Landes, “Indirect Liability for Copyright Infringement: An Economic Perspective” (2003) 16 Harvard Journal of Law and Technology 395.

[11] See David Barkai, An Introduction to Peer-to-Peer Computing, Intel Developer Update Magazine (Oct. 2000), available at http://cnscenter.future.co.kr/resource/hot-topic/p2p/itO2012.pdf

[12] See e.g., Privacy and Piracy: The Paradox of Illegal File Sharing on Peer-to-Peer Networks and the Impact of Technology on the Entertainment Industry: Hearing Before the Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, United State Senate, One Hundred Eight Congress, first session, September 30 2003, Washington : U.S. G.P.O. : 2004.

[13] See generally D Balaban, “The Battle of the Music Industry: The Distribution of Audio and Video Works via the Internet, Music and More” (2001) 12 Fordham Intellectual Property Media and Entertainment Journal 235. See also N Koss, “Digital Music Dilemma: Protecting Copyright in the Age of Peer-to-Peer File Sharing” (2003) 5(2) Vanderbilt Journal of Entertainment Law & Practice 94-99.

[14] R Hammond “Pro Leak? Pre-Release File Sharing and the Music Industry” August 27, 2012 [http://www4.ncsu.edu/~rghammon/Hammond_File_Sharing_Leak.pdf]

[15] (www.google.com/insights/search) ibid.

[16] See A Zentner, “Measuring the Effect of File Sharing on Music Purchases” (2006) 49(1) Journal of Law and Economics 63.

[17] Ibid.

[18] BPI Research and Information, “The Impact of Illegal Downloading on Music Purchasing” 2 [http://www.ifpi.org/content/library/The-Impact-of-Illegal-Downloading.pdf]

[19] Ibid. see also W Pollack, “Tuning In: The Future of Copyright Protection for Online Music in the Digital Millennium” (2000) 68 Fordham Law Review 2445, 2453-2454.

[20] F Oberholzer-Gee and K Strumpf, “File Sharing and Copyright” (2010) 10(1) Innovation Policy and the Economy 19. S

[21] T Tanaka, “Does File Sharing reduce Music CD Sale?: A Case of Japan” 1-17. Paper presented at the Conference on IT Innovation at Hitotsubashi University, Tokyo, 13 December 2004.

[22] Ibid. see also K Kelly, “The MP3 Challenge: Has Congress Effectively Shielded the Music Recording Industry from Internet Copyright Piracy?” (2000) 18 Temple Environmental Law & Technology Journal 163.

[23] Hammond, Op Cit.

[24] Ibid.

August 27, 2012

[25] Colletti, supra 257.

[26] See D Edwards, How to Run Online File-Sharing Technology without Really Infringing: Why the Supreme Court’s MGM v Grokster Decision does not make File-Sharing Technology Illegal Per Se” (2006) 52(4) Wayne Law Review 1461-1482.

[27] See J Sifferd, Peer-to-Peer Revolution: A Post-Napster Analysis of the Rapidly developing File-Sharing Technology” (2002) 4(1) Vanderbilt Journal of Entertainment Law & Practice 92-116.

[28] Ibid.

[29] See J Mckuin, “1994 Home Audio Taping of Copyrighted Works and the Audio Home Recording Act of 1992: A Critical Analysis” (1994) 16 Hastings Communication and Entertainment Law Journal 311.

[30] 464 U.S. 417 (1984).

[31] Ibid.

[32] V Barnett and N Elsborg, “Copyright infringement” (2012) 14(5) £-Commerce Law and Policy 16

[33] 239 F.3d 1004 (2001) 

[34] R Hocking, Case Comment Secondary liability in copyright infringement: still no Newz? (2012) Entertainment Law Review 84.

[35] For a more detailed analysis, see J Belknap “Copyright Law and Napster” (2001) 5 Journal of Small & Emerging Business Law 183-202.

[36] C Geiger, “Legal or Illegal? That is the Question! Private Copying and Downloading on the Internet” (2008) IRIPCL 597.

[37] Ibid.

[38] Hockings, Op Cit.

[39] 545 U.S. 913 (2005)

[40] See K Schoen, “Metro-Goldwyn-Mayer v Grokster: Unpredictability in Digital Copyright Law” (2006) 5(1)
 Northwestern Journal of Technology and Intellectual Property 156-175.

[41] D Levin, “Future of Copyright Infringement: Metro-Goldwyn-Mayer Studios, Inc. v Grokster” (2006) 21(1) 
 St. John's Journal of Legal Commentary  271-310

[42] See C Ingrassia, “Helpful Loss – The Implication of Metro-Goldwyn-Mayer Studios, Inc. v Grokster Ltd. On the Future of Products Capable of Infringing Use” (2005) University of Illinois Journal of Law, Technology & Policy 357-368.

[43] T Chapman, “Sharing in the Groove: Ninth Circuit Allows Peer-to-Peer Network to Continue File-Sharing – MGM Studios, Inc. v Grokster Ltd” (2005) 4 Journal of Intellectual Property 304-331.

[44] 464 U.S. 417 (1984).

[45] On the deeper meaning of “substantial”, see R Myrick, “Peer-to-Peer and Substantial Non-Infringing Use: Giving the Term Substantial Some Meaning” (2005) 12(2) Journal of Intellectual Property Law 539-566.

[46] “Copyright Law – Ninth Circuit Holds That Computer File-Sharing Software Vendors are Not Liable for Users’ Copyright Infringement” (2005) 118(5) Harvard Law Review 1761-1768.

[47] Grokster, Op Cit.

[48] M Suppappola, “End of the World as We Know It – The State of Decentralized Peer-to-Peer Technologies in the Wake of the Metro-Goldwyn-Mayer Studios v. Grokster (2004) 4(1) Connecticut Public Interest Law Journal 122-180.

[49]Hockings, Op Cit, 85.

[50] [1988] A.C. 1013.

[51] Ibid.

[52] [2010] EWHC 608. 

[53] E Bonadio, “File Sharing, Copyright and Freedom of Speech” (2011) 33 European Intellectual Property Review 619.

[54] Ibid.

[55] [1988] A.C. 1013

[56] [2010] EWHC 608 para 126.

[57] Ibid, 128.

[58] R Massey, “Century Fox Film Corporation v Newzbin Ltd” (2010) 16 Computer and Telecommunications Law Review 164-166.

[59] Ibid.

[60] Ibid 

[61] O Smith, “CJEU draws a line in the sand over ISP traffic filtering laws” (2012) Feb Intellectual Property Magazine 79-80.

[62] E Psychogiopoulou, “Case Comment Copyright enforcement, human rights protection and the responsibilities of internet service providers after Scarlet” (2012) 34(8) European Intellectual Property Review 552-555.

[63] Ibid.

[64] “Peer-to-peer software” (2012) 33(10) Business Law Review 258

[65] P Gardiner and G Abbotts “Case Comment: Scarlet extended reprieve from content filtering (2012) Entertainment Law Review.

[66] See e.g., N Elkin-Koren, “Making Technology Visible: Liability of Internet Service Providers for Peer-to-Peer Traffic” (2005) 9(1) New York University Journal of Legislation and Public Policy 15-74.

[67] F Rizzuto, “Case Comment Injunctions against intermediate online service providers” (2012) Computer and Telecommunications Law Review” 73.

[68] [2005] FCA 1242

[69] M Rimmer, “Hail to the Thief: A Tribute to Kazaa” (2005) 2(1) University of Ottawa Law & Technology Journal 173-218.

[70] Ibid.

[71] B Scott, “Kazaa: Time to Rethink Authorization? Open Source Law 10 September 2005 4-6

[72] Ibid, 5.

[73] See e.g. J Humphrey, Recent Development: Debating the Proposed Peer-to-Peer Piracy Prevention Act: Should Copyright Owners be Permitted to Disrupt Illegal File Trading Over Peer-to-Peer Networks? (2003) 4(2) North Carolina Journal of Law and Technology 375-416.

[74] See J Storch and H Wachs, “Legal Matter: Peer-to-Peer File Sharing, the Digital Millennium Copyright Act, and the Higher Education Opportunity Act: How Congress and the Entertainment Industry Missed an Opportunity to Stem Copyright Infringement” (2010-2011) 74(1) Albany Law Review 313-360.

[75] See generally C Swartout, “Toward a Regulatory Model of Internet Intermediary Liability: File-Sharing and Copyright Enforcement” (2011) 31(2) Northwestern Journal of International Law & Business 499-534.

[76] Hockings supra.

[77] See E Baden-Powell and L Anthony, “Digital Economy – Act 2” (2012) 23(5) Entertainment Law Review 130-133.

[78] D Brenner, “Five strikes and ... you're not out: the new US copyright ISP agreement” (2012) Computer and Telecommunications Law Review 67.

[79] Ibid.

[80] Brenner, Op Cit. 68.

[81] G Pessach, International-Comparative Perspective on Peer-to-Peer File Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations’ Questions” (2007) 40 (1) Vanderbilt Journal of Transnational Law 123. Note however SABAM.

[82] See W Wei, “ISP indirect copyright liability: conflicts of rights on the internet” (2009) 15(8) Computer and Telecommunications Law Review 181-185.

[83] [2012] EWCA Civ 1740. . See also Media C.A.T Limited –v- Adams & Ors & ACS Law & Andrew Crossley [2011] EWPCC 10.    

[84] K Stephens, Z Fuller and H Atherton, “Copyright: Norwich Pharmacal orders against ISPs” (2013) 41(1) Chartered Institute of Patent Agents Journal 45.

[85] D Flint, “Intellectual property: "Golden Eye is not just for James Bond!" (2012) 33(5) Business Law Review 120-121.

[86] Ibid.

[87] J Storch and H Wachs, supra 313-360.

[88] Hocking, Op Cit 83.

[89]R Blamires, D Naylor and A Hulme “Illegal file  sharing - Newzbin and the Digital Economy Act” (2012) 14(2) E-Commerce Law and Policy, 3-5

[90] N Scott, Indirect Liability of ISPs for Peer-to-Peer Copyright Infringement after the Verizon Decision” (2005) 7 Tulane Journal of Technology and Intellectual Property 249-266

[91] Ibid.

[92] Ibid. See also R Massey, “Century Fox Film Corporation v Newzbin Ltd” (2010) 16 Computer and Telecommunications Law Review 164-166.

[93] On the contention that the DEA remains in a state of flux, see A De Silva and F Weedon, “The Digital Economy Act 2010: past, present and a future ‘in limbo’” (2011) 17(3) Computer and Telecommunications Law Review 55-62.

[94] T Harding, “BitTorrent tracking as a means of detecting illegal file- sharing” (2013) 15(2) E-Commerce Law and Policy 8-9.

[95] Ibid.

[96] T Chothia, M Cova, C Novakovic, and C Gonzalez Toro, “The Unbearable Lightness of Monitoring: Direct

Monitoring in BitTorrent” School of Computer Science, University of Birmingham, UK [http://www.cs.bham.ac.uk/~tpc/Papers/P2PMonitor.pdf].

[97] M Filby, “Code is law? Assessing architectural file sharing regulation in the online environment” (2013) 8(1) J.I.C.L.T 81-103.

[98] Ibid.

[99] T Capel, “Fighting the file- sharing war through notice-and takedown regimes: plunging a sword of copyright through the heart of freedom of expression on the internet” (2012) 2 (2) S.S.L.R. 2012, 2(2), 51-75.

[100] L Anthony, “DEA Initial Obligations Code - second time lucky?” (2012) Entertainment Law Review 238-239.

[101] Ibid.

[102] Ibid, 241

[103] Ibid.   

[104] M Sweeney, “Ofcom outlines new anti-piracy rules

Draft code details new 'three strikes' policy for illegal downloaders, to come into effect from March 2014”

The Guardian [http://www.guardian.co.uk/technology/2012/jun/26/ofcom-outlines-anti-piracy-rules].

[105] See generally, N Netanel, “Impose a Non-commercial Use Levy to Allow Free Peer-to-Peer File Sharing” (2003) 17 Harvard Journal of Law and Technology I-6. See also P Yu, “P2P and the Future of Private Copying” (2005) 76 University of Colombia Law Review 36-52.

[106] 572 F. Supp. 2d 1150, N.D. Cal. (2008).

[107] 721 F. Supp. 2d 85 (D. Mass. 2010)

[108] The court was also concerned about the fine imposed. This concern is shared by some commentators. See e.g., A Cronk, “Punishment Doesn’t Fit the Crime – Why and How Congress Should Revise the Statutory Copyright Damages Provision for Non-commercial Infringement on Peer-to-Peer File-Sharing Network” (2009) 39(1) Southwestern Law Review 181-208.

[109] Ibid.

[110] 430 F.3d 888 (7th Cir. 2005).

[111]  464 U.S. 417 (1984)

[112] K Nguyen, “The trial of Joel Tenenbaum” (2012) Sep Intellectual Property Magazine 22-23.

[113] S Dogan, Comment: Sony, Fair Use, and File Sharing” (2005) 55(4) Case Western Reserve Law Review 971-976.

[114] S Karapapa, “A copyright exception for private copying in the United Kingdom” (2013)

 European Intellectual Property Review 129

[115] Ibid.

[116] Padawan SL v. Sociedad General de Autores y Editores (SGAE) (C-467/08)

[117] C-462/09 Stichting de Thuiskopie v. Opus.

[118] See G Minero, “Fair compensation for the private copying exception: private use versus professional use”

(2011) 33(7) European Intellectual Property Review 465-469.

[119] Karapapa, Op Cit, 130-131.

[120] Ibid, 130.

[121] Ibid.

[122] ibid, 132.

[123] Ibid.

[124]Ibid, 133.

[125] IPO, “2012 Impact Assessment: Copyright Exception for Private Copying” IPO, .4. [http://www.ipo.gov.uk/consult-ia-bis1055.pdf].