Peer-to-peer File Sharing form a Copyright Point of View

(IPRinfo 3/2011)

Tanja Liljeström
Researcher, IPR University Center

Alain Strowel (ed): Peer-to-Peer File Sharing and Secondary Liability in Copyright Law. Edward Elgar, 2009. ISBN 978-1-84-720562-9

This collection of essays by many distinguished scholars and practitioners aims to shed light on the main controversy surrounding peer-to-peer file sharing (P2P) from a copyright point of view: the liability of those providing P2P services and applications for infringements committed by their users.

The book explores two central themes: Copyright infringement through P2P on the one hand, and secondary liability for such infringement on the other. P2P is a broad term that covers a variety of applications and services, from services relying on centralized indexing systems, to decentralized systems, and at the far end of the spectrum, search engines. The book also addresses other services and technologies, such as Internet access and hosting services and hyperlinking.

As for secondary liability, the book covers the various doctrines applied in the US and other common law countries, as well as in Continental Europe and Asia.

These topics are analyzed mainly through case law, but the book also contains essays that explore alternative solutions for addressing not only P2P, but also other instances of mass infringement online. The role of Internet intermediaries such as ISPs is deemed significant, as is the establishment of alternative remedies.

The first three chapters, by Allen N. Dixon, Michael Schlesinger, and Alain Strowel and Vicky Hanley, deal with case law from around the world on secondary liability, infringement of the making available right, and infringing use of hyperlinks. The authors all conclude that, although the approaches to infringement liability may be different, the end results tend to be similar in that there are few, if any, loopholes remaining that parties engaging in or enabling file sharing can use to escape liability.

In the next two chapters, Jane Ginsburg and Graeme Austin delve deeper into secondary liability as developed in the US and Australia, with Ginsburg providing an analysis of US Supreme Court practice from Sony via Napster and ending up in Grokster, and then comparing the US doctrine to the Australian doctrine of authorization as addressed in the Kazaa case. Graeme Austin takes up the bat by examining the US and Australian approaches to secondary liability from the perspective of private international law, and explores whether the US inducement theory and/or the Australian rule on authorization can be applied to infringing conduct that occurs extraterritorially.

The third part of the book deals with alternatives to the current approach of using litigation to stop P2P. Alexander Peukert reviews the various proposals for a P2P levy or tax, presented by mainly US scholars, from the perspective of international treaty obligations, and develops his own proposal for a ”bipolar system”, where copyright holders would be given the option of distributing their works only via commercial channels or opting in to a levy or tax scheme.

Robert Clark examines the position of ISPs in light of case law and legislative efforts requiring them to disclose subscriber data, adhere to notice and takedown procedures, and monitor and filter P2P traffic, noting that these obligations have the effect of more or less negating the safe harbour provision of the Electronic Commerce Directive.

In the final chapter, Jerome H. Reichman, Graeme B. Dinwoodie, and Pamela Samuelson address how the prohibitions on circumvention of technical protection measures (TPMs) and trafficking in circumvention tools restrict the exercise of copyright limitations and exceptions. As a remedy, the authors propose a ”reverse notice and takedown procedure”, that would obligate copyright holders to disable TPMs upon notice from a user that intends to make a permitted or exempted use of their work.

The book provides a good overview of the current legal situation with regard to liability for unlawful file sharing. Some of the chapters are variations of articles already published elsewhere and the arguments presented may be familiar to readers well versed in the topic. Also, a certain degree of overlap is unavoidable, particularly as the same cases are addressed in several chapters, albeit from different angles of approach. To scholars, practitioners, law students, and other interested parties seeking an overview of the current situation on P2P file sharing, this is a very good starting point for further study.

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