Journal of Intellectual Property Law & Practice Advance Access originally published online on May 18, 2007
Journal of Intellectual Property Law & Practice 2007 2(6):402-418; doi:10.1093/jiplp/jpm070
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© The Author (2007). Published by Oxford University Press. All rights reserved
Illegal downloads: sharing out online liability: sharing files, sharing risks
Legal context: Until the Geneva Treaties provided the communication to the public right copyright law struggled to provide a coherent response to filesharing of music and films. Liability for uploaders was established but in practical terms this was not effective. Visiting liability on telecommunications networks and ISP's was not possible in the light of the international consensus that such entities should enjoy a measure of immunity. The music industry in particular has launched successful actions against software providers and end users by resorting to either contributory infringement or authorising infringement. Safeguards against invasion of privacy are put in place but these do not guarantee that the means of collecting evidence are necessarily lawful and the Dutch decision denying BREIN access to the identities of suspected filesharers because of data capture techniques is to be welcomed. Music, film and broadcast rightholders are now using Norwich Pharmacal and notice and take down proceedings to force ISP's cooperate in enforcing copyright law.
Key points: Through use of copyright law the music industry in particular has been successful in shutting down software providers and is still seeking to drag users and parents through the courts. Privacy considerations are not being clearly addressed in some countries. The signs are that greater use of the criminal law is intended in many jurisdictions.
Practical significance: Decisions such as Sharman suggest that the most effective way of dealing with filesharing is to go against software providers but that even this will not stop this activity and that the expansion of the legal download market and improved products and services will be the best and most effective response to filesharing. The writer thinks the increased use of the criminal law is likely but that such a development is neither a proportionate reaction when civil law remedies are available nor is it a responsible use of public funds when law enforcement bodies face other more serious challenges.
Key Words: The unauthorized downloading of files containing copyright-protected materials via the internet has been a source of vigorous conflict between the interests of copyright owners on the one hand and the developers and users of increasingly sophisticated technologies on the other. • Legal resolution of this conflict has been difficult to achieve, partly on account of the real or perceived inability of existing copyright law terminology to address new forms of unauthorized use and partly because so many individuals who practise filesharing and downloading are difficult to identify and are often not worth suing. • This article reviews the legal issues involved and focuses on some of the most significant litigation, asking what further legal and technological measures might provide an appropriate means of respecting and protecting the legitimate interests of all interested parties.
Correspondence: * University College Dublin, Ireland and Arthur Cox, Ireland. Email: robert.clark{at}ucd.ie