Cyber Sharing (In terms of Peer-to-Peer networks): Opportunity or Challenge to Entertainment Industry

By Sudhanshu Prakash, School of Legal Studies, Cochin University of Science & Technology, Kochi

Editor’s Note: In the era of technological advancement, cyber crimes are rampant, and forever on the rise. Internet piracy violates a large number of copyrights and leads to IPR controversies. The emergence of Peer-to-Peer sharing, better known as P2P, has its fair share of pros and cons. In a P2P network, files are shared through a decentralized network, from individual to individual who act as both suppliers as well as consumers, unlike the traditional model of distinctive suppliers and consumers. This paper analyses the positive and negative aspects of file sharing through P2P and the impact on the entertainment industry.”

Pre-script

At present time it is important to look into how the digital world has made a splash in the lives of artists and performers in terms of Peer-to-Peer (“P2P”) file sharing. The main concern is not “how we play media files but where it comes from and what we do with it.” This illegal file sharing is not a minute problem; it is one that presents an incredible concern to many performers and labels as well as entire industry. This ever-changing whirlwind that has scooped up artists and their creation has moved them to completely different level of sharing and distributing. The development of a media file that is so compressed that it takes up less space and yet maintains the integrity of the content, has led to the development of online file sharing sites inspiring the birth of P2P transfers of media files, free of charge, which in turn has resulted in the escalation of this illegal trend.

What stands out most from the 2012 amendment of the Copyright Act, which was going on since 2006 along with international conventions and treaties, is how out-of-touch the law enforcement is with current cultural practices. In contemporary world, creative professionals want both, an easy but audience reach that comes from less stringent copyright laws (things like cover versions, open air music release), as well as ability to prosecute the same at will. The strict laws of copyright, with a limited set of exceptions, just do not fit with the digital era where every digital transactions results in bytes being copied.

The reason behind skyrocketing of this illegal market seems to be the similarity between prices of hardcopy and softcopy of media files on the legitimate sources. This has led many observers, including most media companies and some P2P media advocates, to conclude that these networks pose grave risk to the businesses models of established media companies. Consequently, P2P networks have been targeted by entertainment industry as a potential threat.[i] Today, this industry is not willing to start an active combat with the infringers and is also reluctant to accept this application of some worth, since it has potential for purely legal applications too. These non-infringing uses include sending open source software, creative common works and also work in public and private domain.

International Federation of the Phonographic Industry (“IFPI”) which represents the recording industry worldwide has noticed recently an increase of 0.2% in the global earnings for the recording industry, first time ever growth since 1999. However, digital sales channels now account approximately 40% of the overall industry trade revenues through download as a biggest source.[ii] Not bad, considering non-existence of the industry in the digital market ten years ago which counter now to industry losses on physical CD sales.

This paper tries to focus upon and analyze the contemporary practices of illegal internet file sharing in terms of P2P networks within the ambit of entertainment industry (specifically of copyrighted music and movie contents), how far it has affected the rights of rights holders, which all rights of the copyright owners are getting infringed (neighboring rights), liability of the infringing groups and how capable existing legal machinery is to guard these rights.

Introduction

The internet has changed our world and there’ll be no looking back. It has created a new online world teeming with both opportunities and obstacles for the entertainment industry. Digital technology enables the transmission and use of all these protected materials in digital form over interactive networks. While the transmission of sound, video clips, images etc. over the internet was already commonplace, this has also become true for transmission of audio-visual works such as feature films; as the technical constraints of narrow bandwidth began to disappear. Materials protected by copyright and related rights, spanning the range of information and entertainment products constitute much of the valuable subject matter of e-commerce.

IFPI reports states that “the ease of access to music by means of illegal file sharing has damaged its perceived value to customers” creating a huge challenge for the music industry.[iii] For example, the emergence of internet-based file swapping services such as Napster and others have enabled a large-scale exploitation of music and recordings without the authorization of the right holders. The challenges to which the industry has been, according to critics, is slow to react. IFPI identifies rampant illegal downloading and P2P file sharing as the number one reason why digital sales have not made up for the slowdown in CD sales.[iv]

Peer-to-Peer Mechanism & Copyright Jurisprudence

Sharing, exchanging or distributing files on P2P network is now a widespread practice via, a type of decentralized and distributed network architecture in which individual nodes in the network (Called “Peers”) act as both suppliers and consumers of resources, in contrast to the traditional–client server model where consumption and supply of resources were divided.[v] It is powerful technology that has many uses. P2P networks can be used to share and exchange music, movies, software and other electronic materials. The use of P2P networks to upload, download or share copyrighted materials such as media contents can violate the rights of copyright owners. The legal issues in file sharing involve violation of copyright laws, as digital copies of copyrighted materials are transferred between users. P2P technology allows people to share files and data worldwide but since some of them deal with copyright protected contents, it has been targeted by right holders. The use of P2P to share files can never amount to copyright infringement where owner of the rights in the material being shared has concerned to this.

The architecture of P2P system varies; some rely upon a centralized server while others are decentralized with no one site operating the system. One of the earliest P2P file sharing system was Napster, in which users were connected to one of myriad servers from which they could obtain files which had been made available by other users. Latest generation of P2P system (Grokster, Streamcast and KaZaa) are far and less centralized than the old Napster system. There are no centralized servers rather users download software (typically for free) which effectively turns each user’s computer into a separate internal servers thus creating a totally decentralized system.

Newer P2P system architectures often include measures to conceal the identities of senders, recipients and material. In P2P file sharing context infringement may occur, for example, when one person purchases an authorized copy and then uploads it to a P2P network or when one purchases a CD, creates an MP3 or other digital copy and then uses a P2P network to share that digital copy with others. Here, both who makes the file available and who are making copies out of it, may be found to have infringed the rights of the copyright owner(s) and have violated the law.

In P2P networks, tasks such as searching for file or streaming audio/video are shared amongst multiple interconnected peers where each of them make a proportion of their resources (such as processing power, disk storage or network bandwidth) directly available to other network participants, without the need for centralized co-ordination by servers. So, here at this platform users can take away what they need from other user’s computer while making available the contents of their own shared folder.[vi]

This technology is quite well known in copyright circles, but at the same time, the variety of applications covered by this broad term is largely ignored. This new technology possesses characteristics that prompt great hopes for the advent of global knowledge community. However, it also terrifies copyright owners to definitely lose control over their works, which for the users of these network actually seems to be “free as the air to common use.” It affects not only the right to reproduce a work (i.e. in making electronic copy which is communicated to others) or to sell or give on hire any copy of the work but a series of rights like- to publish the work, public display of the work, adaptation of the work and also to communicate it to the public. These are not covered by any limitations or exceptions to copyright law nor could these reproduced files be considered private copies since they are intended for the collective consumption. It has affected both the large and small businesses similarly.

Substantial Infringers & Nature of Liability

Before bringing a lawsuit for infringement of the copyright protected creation, the right owners have three distinct groups before them, who might be seen as responsible.

First, those who create and distribute the file sharing programmes, but in itself this technology is neutral, with both positive and negative applications. Anyone, who simply makes and distributes P2P programmes, without promoting their use for infringing acts, is not committing any infringement, which was also view of the court in Grokster[vii] case.

Second group consists of the various Internet Service Providers (“ISP’s”), which provide access to the network. These are the major beneficiaries of the P2P phenomenon to the extent that in some countries the expansion of broadband services has gone hand-in-hand with P2P traffic. Though court once referred to accept the notion of Napster in making ISP’s liable that time but the conditions to avoid the liability has certain norms. Section- 512 (b) of United States’ Digital Millennium Copyright Act and Article-13 of the European directive talks about similar provisions for exemption from liability.[viii] Be that as it may, the fact of facilitating such services doesn’t constitute copyright infringement, but the order passed by Madras high court in favor of producers of Tamil movie “3” has targeted ISP’s in case of copyright infringement of music & movies. The plaintiffs apprehending large-scale piracy of movie over the internet filed Quia-timet action before Madras High Court seeking ex-parte interim injunctions against 15 ISP’s and several unnamed “John-Doe’s”, who could be identified as parties to the suit at a later stage, as and when their infringing activities will be picked up by the plaintiffs. The ISP’s were required to prevent the copyright infringement of the film which means they were supposed to actively police their users and ensure that nobody is accessing or sharing copies of the movie “3” over the networks.[ix] This could have become a trend in Indian Copyright jurisprudence for the right owners, which started with the case of Tej Television[x] but post this case only few others have sought to avail this measure, namely- Thank you, Singham, Bodyguard, Speedy Singhs, Don-2, Gangs of Wasseypur etc. in which court granted ad-interim ex-parte injunctions in favor of production houses like Reliance, Viacom 18 motion pictures and others against a number of ISP’s and unknown persons for copyright infringement.[xi]

This leaves behind third group; the P2P users themselves. In the absence of authorization/license from the right holders, the users are undeniably violating copyright law. But how come these users be identified in order to bring legal actions against them? The short answer is through subscriber data held by their ISP’s, where individuals could be identified through their internet protocol address plus connection dates and time. This then was the starting point of the “Promusicae”[xii] case in Spain, which led to landmark ruling by the ECJ on January, 2008. The Madrid court ordered Telefonica to hand over the information. Promusicae, a Spanish association of producers of music and audio-visual recordings, in 2005 applied to Spanish courts for an order to oblige the ISP Telefonica to disclose the name & physical address of a numbers of its subscribers with a view to bring civil judicial proceeding against users who via, KaZaa file exchanging programs were allegedly and improperly accessing phonograms, in which members of Promusicae had the exploitation rights.

The “Jugzado de lo Mercantil No.5 de Madrid (Commercial Court No-5, Madrid)” referred to court of justice, a question on compatibility between the various community provisions applicable and the Spanish law, inter alia, on information society services which provided that the internal data of internet users must be retained for twelve months and should be used, if necessary, solely in the context of criminal judicial proceedings. Telefonica objected on the same grounds that the case brought before is civil in nature and not criminal but the same was not admitted.[xiii]

In other words the infringing groups can be found in two distinct categories i.e. Primary and Secondary.

“Primary” infringing group consists of end-users (individual users, clients-servers etc.), who reproduce, distribute and publically perform the copyright protected work without authorization of the right owner. As they violate directly a number of exclusive rights of copyright owner, they have been termed as “direct infringers”.

“Secondary” infringing group further classifies itself into two different categories based on nature of role played i.e. “contributory” and “vicarious” infringers. After all, in a P2P network, the developer of the file sharing tool and the ISP has no direct involvement in the discovery, copying or transmission of the files being shared. Copyright law, however, sometimes reaches beyond the direct infringer to those who were only indirectly involved and can also hold an individual accountable for the actions of others.

Contributory infringement is similar to one ‘aiding’ and ‘abetting’ the offence. One, who with the knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a contributory infringer. In order to succeed in a contributory infringement claim, a copyright owner must prove: Real (Direct) infringement, knowledge and material contribution.

The term vicarious infringement has been derived from very same legal principle, which holds an employer responsible for the action of its employees. Therefore, a person will be held liable for vicarious infringement if he has the right and ability to supervise direct infringer and also has a direct financial interest in his activities. Thus, in order to win a vicarious infringement claim, an owner of the rights must prove these: Direct infringement, Right and ability to control and direct financial benefit.

The nature of vicarious infringement liability creates a strong incitement to monitor the conduct of users. This stems from the fact that knowledge is not required for vicarious infringement liability. So, a person can be declared vicarious infringer, even if he is completely unaware of infringing activities carried out by his fellow sub-ordinates.

Global scenario against P2P files sharing

Starting with stand of the United States of America, the most developed country in the context of copyright issues. In Sony Corporation v. Universal Studios[xiv] the Supreme Court found that Sony’s new product, the Betamax (the first mass-market consumer videocassette recorder), did not subject Sony to secondary copyright liability because it was capable of substantial non infringing uses. It holds the proposition that the creators of new technology should not bear the burden of preventing copyright infringement where it can serve legitimate purposes. A nascent technology with potential for useful application should not meet legal obstacles only because it can facilitate infringement of existing copyrights. Decades later, this case became the jumping off point for all peer to peer copyright infringement litigation.

The first P2P case in USA was A&M Records v. Napster Inc.,[xv] where the court dealt with the issue whether Napster was liable as a secondary infringer. Firstly, the court considered whether Napster was contributory liable for copyright infringement? To be found contributory liable, must have engaged itself into “personal conduct that encourages or assists the infringement.”[xvi] The court held that “Napster was contributory liable for the copyright infringement of its end-users because it knowingly encouraged and assisted the infringement of plaintiffs protected works.” The court also analyzed whether Napster was vicariously liable for copyright infringement. The standard applied by the court was “whether Napster had the right and ability to supervise the infringing activity and also had direct financial interest in such activities.” The court found that Napster did receive a financial benefit and also had the right and ability to supervise the activity, meaning that the plaintiffs demonstrated a likelihood of success on the merits of their claim of vicarious infringement.[xvii] The court denied all of Napster’s defences, including its claim of fair use.

The next major P2P case was MGM v Grokster[xviii]. In this case the Supreme Court found that even if Grokster was capable of substantial non infringing uses, which the Sony court found enough to relieve one of secondary copyright liability, Grokster was still secondary liable because it induced its users to infringe. It is important to note the concept of claim in cases such as these. In a pure P2P network there is no host, but in practice most P2P networks are hybrid. This has led groups such as the Recording Industry Association of America (RIAA) to file suit against individual users, rather than against companies. The reason why Napster was made liable for violation of law and ultimately lost in court because, it wasn’t a pure P2P network but instead maintained a central server which managed an index of the files, currently available on the network.

In Canada, though the legality of file sharing is disputed, in practice file sharing is tolerated. Most interestingly, in the 2004 case of BMG Canada Inc. v John Doe,[xix] the court decided that both downloading music and putting it in a shared folder available to other people online were legal in Canada. It has led to harsh criticism from organizations like IFPI in the words. Canada practically is the only government of a developed country not to have implemented international copyright treaties agreed over a decade ago, has become now a major source of the worldwide files haring. A disproportionate number of illegal sites are hosted on Canadian soil.

Talking about Ireland where intermediaries have gone a step ahead to legislature in order to secure themselves against any copyright violation claims. In May 2010, Irish internet provider Eircom has announced that they will cut-off the broadband connection of subscribers suspected of copyright infringement, on P2P file sharing of the unauthorized downloads. When customers are identified for the third time they will lose their internet connection in 7 days, and if caught for the fourth time they will lose their internet connection for a year.[xx]

In recent years, if we look at the numbers of litigation with regard to copyright infringement, recording companies have pursued approximately 20000 lawsuits in 17 countries against file sharing of copyright protected contents; however, not a single case was filed within Mexico. Mexico’s government has made opening legitimate businesses much bureaucratic and costly. So, consumers have learned to count on a much cheaper means of acquiring music and other media for their entertainment. Consumers continue to share files because the laws in Mexico are very weak and have not been updated in order to take into account online trade such as file sharing. Most interestingly, Mexico’s intellectual property laws cannot affect file sharers because no money is being exchanged. In addition to it, internet poses a great challenge to the rights holders in term of distribution of illicit new releases, subtitles, covers and dubbed versions of films, as well as music and other copyright protected contents. Although file sharing laws are almost nonexistent in Mexico, Mexican legislators are considering the approval of the punishment of unauthorized file sharers with fines up to $20000 and ten years in jail. There are many file sharing servers that are hosted within Mexico, however, majority of them are based in U.S. and Europe but administered in Mexico. According to the recording industry, internet sharing of music dominates approximately 90% of the total music market in Mexico with P2P networks as being the most predominant form of music copyright infringement.

In Spain, in a series of cases, Spanish courts have ruled that file sharing for private use is legal. In 2006, the record industry’s attempts to criminalize file sharing were thwarted when Judge Paz Aldecoa declared it legal to download indiscriminately in Spain, if done for private use and without any intent to profit,[xxi] and the head of the police’s technology squad has publicly said “it’s ok. You can download whatever you want with e-Mule, but don’t sell it.” In another decision from May 2009, a Judge ruled in favour of a person engaged in the private, non-commercial file sharing of thousands of movies, even though the copying was done without the consent of the copyright owners. Statistics indicates that Spanish population using file sharing websites are more than double of the European average.

Despite the troubles weathered by entertainment industry, file sharing and torrent websites were ruled legal in Spain in March 2010. The judge responsible for the court ruling stated that “P2P networks are mere conduits for the transmission of data between internet users, and on this basis they do not infringe rights protected by intellectual property law.”[xxii] But on September 20 2013, the Spanish government has approved new laws which aim at website owners who are earning “direct or indirect profit” such as via, advertising links from pirated contents, can be imprisoned up to six years. P2P file sharing platforms and search engines are exempted from the scope of laws.[xxiii]

In Australia, the music and motion picture industries have declared war against P2P file sharing. The Copyright Act, 1968 of Australia imposes “Strict liability” on infringers; there is no requirement to show that infringement occurred knowingly or willfully. A landmark secondary liability case in Australia was Universal Music Australia Pty Ltd v. Sharman License Holdings Ltd.[xxiv] where court held that KaZaa file sharing system had “authorized” copyright infringement. The claim for damages was subsequently settled out of the court.

Again in the case of Roadshow films Pty Ltd v iiNet Ltd.[xxv] (Common known as AFACT case), which was fought in the federal court, an ISP was found not liable for copyright infringement of its users. The case did not, however, create a clear precedent that Australian ISP’s could never be held liable for the copyright infringement of their users by virtue of providing an internet connection.

The Copyright Act, 1968 was recently amended by the Copyright Amendment (Digital Agenda) Act, 2000. The aim of this amendment was to update Australian copyright laws in response to developments in communication technologies. There remains, however, uncertainty of the extent to which copyright owners are protected against the illegal P2P sharing of media files. This must be taken into account that, in addition to liability of P2P developer or provider, the Australian law does also recognize the liability of ISP’s and joint tortfeasor.[xxvi]

In the Netherlands, since 1991, after appointment by the Dutch ministry of Justice, their exist an organization  which guarantees that artists and right holders get a compensation for copies  of their works that citizens make use of for private use. This compensation is levied indirectly through a surcharge on information carriers, like empty CD’s, DVD’s, MP3 players, and since 2013 on hard disks and tablets too.

In a recent case before European Court of justice, argument was raised that current levy should also extend to cover downloads made from illegal sources i.e. from online file sharing networks. The Court of appeals was also of view that downloading from an illegal source is in itself legal; mainly because the Secretary of Justice had repeatedly said so in parliament and the language of the private copying provision (from the Copyright act) did not require a legal source explicitly. But in a landmark ruling,[xxvii] recently European Court of Justice has held that the Netherlands can no longer permit its citizens to freely download copyrighted movies and music without paying for them. In its judgment, Court had ruled that current system of “piracy levy” to compensate rights holders is unlawful as it puts copyright holders at and unfair disadvantage. Ironically, Copyright holders may be worse-off if the Netherlands does indeed outlaw downloading pirated material. This would result in millions of Euros in lost revenue through the piracy levy, which may be hard to match by an increase in legal sales, if there is any increase at all.

Recognized Rights & Digital Age

The definition of rights, which determines their scope, is a key issue, as intellectual property is neither more nor less than the sum of the rights granted by law. Under existing treaties and national legislation, the owners of copyright and related rights are granted a range of different rights to control, to exploit or to be remunerated for various types of uses of their property. For the groups of Rights holders, these rights include rights of reproduction, right to sell or give on hire, to publish the work, public display of the work, communication of the work to the public at large etc. The development of digital technologies, that enables transmission of works over networks, has raised questions about how these rights are secured & guaranteed in the new environment. In particular, when multiple copies are made as works pass through the networks, is the reproduction right implicated by each copy? Is there a communication to the public when a work is not broadcasted but simply made available to individual members of the public if and when they wish to see or hear it? Is there, if exist, any competing interest of infringers (or more elaborately infringing groups) available against the copyright owners?

Perhaps the most basic right granted under both copyright and related rights is the right of reproduction, which under the Berne Convention covers reproduction “in any manner or form.” When the work or object is transmitted over networks multiple copies are made in the memory of network Computers at numerous points. It is therefore necessary to determine, how the reproduction right applies to such copies. In 1982, at a meeting of government experts co-organized by WIPO and UNESCO, a much broader understanding was reached that uploading into a computer memory should be considered as an act of reproduction.

This understanding was reconfirmed in 1996, in agreed statements to the WIPO Copyright Treaty (“WCT”) and WIPO Performers and Phonograms Treaty (“WPPT”), which state: “The reproduction right… and the exceptions permitted there under fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form, in an electronic medium constitutes a reproduction within the meaning of the [relevant treaty right].” The appropriate application of the reproduction right in the case of temporary copies in computers’ Random Access Memory (RAM) continues to be a subject of debate at the national and international levels.

The Article 8 of WCT and Article 14 of WPPT also clarify the extent of right holders’ control when works and performances are made available to the public for downloading or to access on the internet. For example, Article 14 of the WPPT provides:

“Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way  that  members of the public may access them  from a place and at a time individually chosen by them.”

This type of transmission differs from broadcasting, where material is not selected and delivered by an active transmitter like a broadcaster to a group of passive recipients; rather, it is transmitted interactively, that is, on demand from   individual users, at a time and place of their choosing. The treaties require that an exclusive right of an owner to be granted to control such acts of “making available”, while leaving it to individual countries to decide how to categorize this right under national law.

Indian Position & Recent Developments

Talking about the provisions herein India, The copyright (Amendment) Act, 2012 states via, Section-14(d) (i)-

“to make a copy of the film, including a photograph of any image forming part for n  thereof; or  storing  of it any medium by electronic or others means;”

Therefore it is clear that reproduction of work means making a copy of the work in any physical copy, any digital copy, storing it in any medium such as computers or at any network. Conforming to international treaties, the amendment act of 2012 also clarifies the concept of “making available right” or “right to communicate” the public, in the wordings-

Section- 2 (ff) – “Communication to the public” means making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and time chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work of performance so made available.

Explanation: – for the purpose of this clause, communication through satellite or cable or by any other means of simultaneous communication  to more than one household or place of residence of any hotel or hostel shall be deemed to the public.

As per the wordings of the Amendment Act of 2012 via, section -2 (uu), 14(d) and 14(e), producer is the authorized person for the sound recordings and cinematograph film works, and he is only person authorized to reproduce the work in any other medium by any means, as well as the person authorized for communication to public of the concerned work. So, any action contrary to the provision would deem to be infringement to the copyrighted work.

We might say that the laws (amendment) made by legislation is out-of-touch, but still we (entertainment industry) do not have a good number of lawsuits lodged in our courts against copyright infringement with respect to illegal file sharing in India, in comparison to the countries discussed above. In respect past, several High courts, Government of India and Department of Telecom (“DoT”), through different orders has appeared as strict assurer of the rights of right holders. Many “John Doe” & “Ashok Kumar” orders have also been granted by the Delhi High Court in cases relating to Bollywood movies Thank You (which set the precedent for the films), Singham, Bodyguard, and Speedy Singhs. The court, with an aim of preventing privacy in the media industry passed ad-interim ex-parte injunctions against unidentified defendants and also against some of the ISP’s. In pursuance of these orders to ISP’s and hosting sites, over 104 Indian illegal music sharing sites were blocked. The blackout could also be part of Delhi High Court’s order of blocking of 450 sites based on the case filed by Multi Screen Media (“MSM”, Sony TV) with regard to illegal file hosting of videos and clips related to World Cup Football matches in which MSM had sole rights.[xxviii] The Government of India and DoT have passed their new policies to put an end to illegal file sharing. Whether the ISPs were warned by the DoT, or took the move themselves, is unknown, but either way it led to the complete blockage of many sites which were being used to host infringing copies of media files.[xxix]

As from the above discussions and provisions referred, it is clear that neither the international treaties nor the national legislation is incapable to restrict the acts of infringement. Every day and every week, a good number of movies and audio contents of entertainment industry gets uploaded on different sites alike, but a very among them come forward with a lawsuit. The liberal policy or approach of the entertainment industry (Concerned with music & movie industry) is the reason why this illegal file sharing is sky-rocketing and more interestingly, where none of the infringers are ignorant about the fact that they are involved in illegal activities which is a civil vis-à-vis criminal offence under statutes. This could be because of our weak enforcement process in the courts. Infringing groups want this opportunity to grab here with a mindset that industry and the right owners have earned much more than what they deserve and rest is here to share, because we find sharing approach in our culture, so no-one is out it.

Post-script

Legal uncertainty is ever present in the current digital era, where many may argue that P2P networks have made illegal copying more widespread than ever before and so, it’s high time to call for strict enforcement of copyright laws and also, introduction of new legal measures for combat against copyright violation.

Others maintain that the interest of right holders should be weighed against the interest of society as a whole and it is important that access to digital material should not be unduly restricted by strongest copyright legislation and various technological protection measures.[xxx] It is, however, important to note that such an interest is embodied in innovative technological devices that are capable of “substantial non-infringing uses.” P2P file sharing platforms are, in many aspects a public-good through which individuals are capable to distribute and obtain information, creative works, communicative materials and a large variety of other intangible resources that have a social value. More generally, P2P file sharing platforms cover a very wide range of autonomy-based social benefits that serve free speech values with regard to both speakers and recipients of content and information. The link between diversity and freedom of speech as a constitutional value relates both to democratic political aspects of free speech and to free speech as the bedrock of individual autonomy. In both aspects, freedom of speech establishes not just the rights of speakers but also the rights of the audience (the recipients), who rely on diversified, robust and pluralistic expressive activity.[xxxi]

Recent incident of Hollywood movie “The Expendables” which was scheduled to be released on 15th august, 2014 was already in audience reach beforehand, as it got leaked some weeks earlier. Lionsgate studio firmly shut-down the online leaks of movie and less expected the studio also widened its sphere of inquiry to some of the biggest tech companies in the world. Interesting enough, Google with some other search engines were asked by the court to subpoena information regarding the sites which had participation in the movie leak. The quick, all businesses granting of a motion of preliminary injunction by U.S. District Judge Margret Meadows in a downtown LA courtroom came almost two weeks after versions of the flick started to appear for download online. It also came just four days after Lionsgate were given a Temporary Restraining Order (TRO) by Meadows against a half-dozen torrent sites that were hosting the picture.[xxxii]

Due to ambiguity about the parties for the claim in context of P2P networks, it goes unchallenged by many right owners. By looking at the number of lawsuits before the courts herein India, at this juncture author is also of view that today our entertainment industry finds no threat from these sharing sites because, though in fact, all these mechanism, at a point of time has acted as menace to their rights but, now apparently industry is making enough and more profits in the existing scenario itself. This could be one reason why industry, labels or the right owners are reluctant to come forward to sue the infringers. I am of opinion that technological innovation or advancement had always appeared as threat to the several groups at their time, if we talk specifically of entertainment industry, we must remember[xxxiii]: –

  1. Radio was going to destroy the record industry
  2. Television was going to be the end of cinema
  3. Home taping was killing music
  4. Video cassettes were expected to be death of movie industry

Now what? Internet and new technological innovations?

Is copyright more important than human rights, in terms of right to communicate information, as well argued in case of The Pirate Bay[xxxiv] before European Union Court of Human Rights. As argued earlier, to maintain a link between advancement and socio-economic interest, we must not outweigh socially valuable non-infringing uses of an innovation which have substantial uses. We must remember Betamax decision where court held that technologies are not inherently illegal, if substantial non-infringing uses can be made of them.

The widespread use of the internet and emerging applications of P2P mechanism such as- Peercasting, Skype, Freecast, BBC iPlayer, Livestation, Adobe flash Player, YaCy, Bitcoins etc. have also added more weight in justification of it being capable of legitimate uses. Finally, I am of opinion that our failure to come-up with a balanced parameter or to enforce the existing provisions aptly might be the reason why persons find it as an opportunity and the industry as challenge to it.

Edited by Sinjini Majumdar

[i] The world of P2P: what is P2P, a Legal Perspective,Wikibooks, open books for an open world, available at http://en.wikibooks.org/wiki/The_World_of_Peer-to-Peer_(P2P)/What_is_Peer-to Peer_(P2P)/Legal Perspective, last seen on 15/01/2015

[ii] Digital Music report 2012- IFPI, IFPI- Representing the recording Industry Worldwide, available at  http://www.ifpi.org/content/library/dmr2012.pdf, last seen on 15/01/2014

[iii] Ibid

[iv] See Digital Music report 2012- IFPI, IFPI- Representing the recording Industry Worldwide, available at  http://www.ifpi.org/content/library/dmr2012.pdf

[v] Peer-to-Peer, Wikipedia, the free encyclopedia, available athttp://en.wikipedia.org/wiki/Peer-to-peerlast seen on 17/01/2015

[vi] Ibid

[vii] MGM v. Grokster, 545 U.S. 913 (2005, Supreme Court of the United States)

[viii] Guy Pessach, An International Comparative Perspective on Peer-to-Peer File-Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations’ Questions, 40:87 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 87, 126-127 (2007).

[ix] Madras High Court passes its first ever ‘John Doe’ order, Spicy IP – De-coding Indian Intellectual Property Law, available athttp://spicyip.com/2012/03/madras-high-court-passes-its-first-ever.html, last seen on 18/01/2015

[x] Tej Television Limited v. Rajan Mandal, (2003) FSR 22

[xi] Payel Chatterjee, what’s in a name…John Doe arrives in India,12JOURNAL OF INTELLECTUAL PROPERTY RIGHTS 488, 494 (2007)

[xii] Productores de Musica de Espana (Promusicae) v. Telefonica de Espana SAU, C-275/06, Judgment of the court (Grand Chamber) Madrid, Spain, 29/01/2008.

[xiii] Summaries of important Judgment, Case C-275/06, European Commission Legal Service, July 2008, available at http://ec.europe.eu/dgs/legal-services/arrest/06c275-en.pdf, last seen on 14/01/2015

[xiv] 464 U.S. 417 (1984, Supreme Court of United States)

[xv] 239 F.3d 1004 (2001, United States Court of Appeals for the Ninth Circuit)

[xvi] See A&M Records v. Napster Inc. 239 F.3d 1004 at 1019

[xvii] Ibid, at 1024

[xviii] Supra 7

[xix] 2005 FCA 193 (Federal Court of Appeal)

[xx] Legal aspects of file sharing, Wikipedia, the free encyclopedia, available at http://en.wikipedia.org/wiki/Legal_aspects_of_file_sharing, last seen on 17/01/2015

[xxi] Jan Libbenga, Spanish judge says downloading is legal, CD man gets off scot free, The Register(03/01/2006), available at http://www.theregister.co.uk/2006/11/03/spanish_judge_says_downloading_legal/

[xxii] Alex Wilhelm, File sharing and torrents websites now legal in Spain, The next web- International technology news, business & culture, available at http://thenextweb.com/eu/2010/03/15/file-sharing-torrenting-now-legal-spain/, last seen on 15/01/2015

[xxiii] Mike Butcher, Spanish Pirate site owners to get 6 years of Jail time, But users off the hook, Tech Crunch (21/09/2013),available at http://techcrunch.com/2013/09/21/spanish-pirate-site-owners-to-get-six-years-jailtime-but-users-off-the-hook/

[xxiv] (2005) FCA 1242 (Federal Court of Australia)

[xxv] (2012) HCA 16 (High Court of Australia)

[xxvi] Guy Douglas, Copyright and Peer-to-Peer Music file sharing: The Napster case and the argument against legislative reform, 11 No.-1 Murdoch University Electronic Journal of Law (2004), available at http://www.austlii.edu.au/au/journals/MurUEJL/2004/7.html

[xxvii] Earnesto, The Netherlands must outlaw downloading, EU court rules, Torrent Freak(10/04/2014), available at https://torrentfreak.com/the-netherlands-must-outlaw-downloading-eu-court-rules-140410/

[xxviii] Silky Malhotra, ISP’s block torrent, hosting websites after court order: Reports,Digit(07/07/2014), available at http://www.digit.in/internet/telecom-india-blocks-popular-torrent-and-hosting-websites-23194.html

[xxix] Fighting piracy with oppression?, Spicy IP – De-coding Indian Intellectual Property Law, available at http://spicyip.com/2011/07/fighting-piracy-with-oppression.html, last seen on 16/01/2015

[xxx] Larusson H., Uncertainty in the scope of copyright: The cases of illegal file-sharing in UK, European Intellectual Property Review, Westlaw, 2009.

[xxxi] Brett M. Frischmann, Peer-to-Peer technology as Infrastructure: an economic argument for retaining Sony’s safe harbour for technologies capable of substantial Non-infringing Uses, 52 JOURNAL COPYRIGHT SOCIETY USA 329, 329& 339-341 (2005)

[xxxii] Dominic Patten, Lionsgate granted ‘Expendables’ Online leak permanent Injunction; Google subpoenaed for Information, Deadline(08/08/2014), available athttp://deadline.com/2014/08/lionsgate-expendables-3-lawsuit-injunction-sylvester-stallone-816624/, last seen on 16/01/2015

[xxxiii] Supra 1

[xxxiv] EU Human rights courts justifies The Pirate Bay Conviction, Spicy IP – De-coding Indian Intellectual Property Law, available at http://spicyip.com/2013/03/eu-human-rights-court-justifies-pirate.html, last seen on 16/01/2015

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