Dissertation 2005 2006 Title



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Kent Law School

LW 556


Intellectual Property Law




Dissertation

2005 - 2006




Title:

Copyrighted Works Being Infringed on the Internet;

The Development of the Law Governing Online File Sharing

Supervisor:

Mr Alan Story


Author:

Chak Ming Tong


Word Count:

4517 (excluding footnotes, abstract, bibliography and case list)


Date

30 March 2006



Content

1. Abstract

P.3

2. Introduction

P.4

3. File-sharing on the Internet

- non-digital copying

- music downloads through websites

- peer-to-peer (P2P) networks : Napster and Gnutella

- second generation P2P networks : Kazaa

- BitTorrent



P.4

P.4


P.5

P.5


P.6

P.6


4. Copyright issues

- relevant legislations

- Copyright, Designs & Patents Act 1988 ss.17-21

- Copyright, Designs & Patents Act 1988 s. 23




P.7

P.7


P.8

P.9


5. Liabilities

- P2P network developers

- Internet Service Providers (ISPs)

- file-sharers (end users)

- which group?


P.10

P.10


P.11

P.12


P.13

6. Problems of law enforecement


P.13

6. Causes of Copyright Infringement and Solutions

- on the part of P2P developers

- cooperation and compromise


P.14

P.14


P.14

7. Conclusion

P.15

8. Bibliography

- books


- internet resources

- articles & journals

- case list


P.16


Abstract

People in the world now enjoy nearly all variety of information over the internet. The amount available on the web has been greatly increased in the last decade which means that more people are able to obtain their required information. However, the original idea of knowledge sharing seems to be fading away, in fact, the situation is developing beyond the moral standard. With the rapidly growing popularity of the use of peer-to-peer downloading software, web users frequently pass on copyrighted works without authorization. The law in this aspect is insufficient to deal with such infringement. And it is not yet settled on which group of people should be liable for the consequence of internet piracy. The judiciary must make a breakthrough in penalising those irresponsible file-sharers to delimit the extent which the court prepares to go. Nevertheless, litigation would not be the only way to combat this immorality due to the difficulties in gathering evidence with existing technology. The huge number of people involved in piracy illustrates that it is worthwhile to consider ways other than bringing numerous claims before the court.



Introduction
It may not be exaggerating to regard intellectual property law as experiencing an upsurge in popularity, as law students seem to have growing interests in the field 1. It is not suggested that intellectual property is a new area of law. In the United Kingdom, legislation could be found as early as in the 17th century 2 while case law started evolving nearly 100 years later 3. Among the intellectual property rights, copyright has a longer history than others, such as patent, industrial design, trade marks, etc. The impetus for a greater awareness of copyright would be the of Donaldson v Beckett 4, in which the House of Lords authoritatively declared that copyright was a privilege or a right granted by the state subject to a time limit. Although the United Kingdom passed the world’s first legislation on copyright 5, does it necessarily mean that this country has the most contemporary and comprehensive solutions to regulate the ever-changing information society? The fast-growing internet world poses a major threat to the modern society, not in the sense of mere access to information, but illegally infringing copyrighted works. The English law in this aspect seems to be insufficient to deal with such frequent copyright infringement. Meanwhile, a few issues need to be discussed before the law could develop any further. Firstly, the question as to whose rights have to be protected. Secondly, which group of people would be culpable. Thirdly, the usefulness of crimialising infringing behaviour. Fourthly, the enforceability of legal sanctions. Fifthly, how the law could be modified in order to tackle the problem.
File-sharing on the internet
Non-digital copying
Since the mid-twentieth century, entertainment industry has been showing a steady growth. Improvement of technology provides numerous methods to the production of music, films, television programmes, etc. People could enjoy them from different media, ranging from radio, to cinema, to phonographic record and then television. But the industry started to suffer from the problem of piracy two decades ago. The cost of making pirated copies of compact disc (CD) kept going downwards and thus became a very profitable business, especially in developing regions like China and Southeast Asian countries. The situation was worsened when internet was well-developed and infiltrated into every household in the 1990s, since then internet users were able to download everything available on the World Wide Web. Speedy connection plus wider bandwidth in the late 1990s mean the users can access to information which they want anytime at anywhere. It also signified that users could exchange their information, including music and movies, in a quicker and more convenient way. In the new millennium we could see further changes in the technological world following the emergence of online music sharing. An even powerful tool has come into existence which facilitates the transmission of even larger sized computer files, for instance, videos and films.
music downloads through websites
The beginning of copyright infringement era could be found when websites started to store music files in their server which were open to all internet users. Webmasters purchase genuine copies of music CD and reproduce them in the form of computer files at home. They then upload the files to a server for storage and download. However, these web sites were not too reliable in searching music. Firstly, users would find the music files no longer existed online in many occasions. Secondly, a server simply cannot store too many files and deal with too many users at a time. Ideally, file sharers could each contribute different files they own so that a huge storage network can be established. But the traditional workings of internet communication give rise to a fundamental problem. A file needs to be broken into packets, i.e. small sections of data, during the transmission process. The recipient computer has to reassemble all packets after receiving a complete file. The usual practice of Internet Service Providers (ISPs) that they do not permit home users to have fixed Internet Protocol (IP) addresses, greatly hinders such establishment. On the contrary, home users are assigned dynamic IP addresses. Hence, file transfer five years ago was not a powerful copyright infringement tool as it does nowadays.
peer-to-peer networks : Napster and Gnutella
This gave a teenager called Shawn Fanning an excellent opportunity to create a computer programme called Napster which acts as a middleman, linking those who have music files together. Napster works on the above-mentioned principle that each client can be a supplier. But the transfer speed is much slower if a file is popular, as a client could only download from a single source. It does not store music on its own central server, rather the files are stored in every client’s computer hard drive. The system merely provides information as to where a client who makes request of a file could obtain the music. Napster clients are then able to connect to each other directly and establish peer-to-peer (P2P) data transmission. One of the advantages is that Napster allows its clients to query about the availability of songs and notifies them when the matching files become online. It would have been a perfect idea to millions or billions of people 6, but it was too unfortunate to be ordered a shut down by the Court in the United States in 2001 7. The drawback to Napster system seems to be its centralised index of files which was said, by the Court, to be used in facilitating copyright infringement. This reasoning was no more that giving a hint to the development of new system based on similar ideology. One of them is Gnutella Network which does not provide a central database and has accessibility through different programmes. Nevertheless, technical constraints mean that these types of file-sharing system can no longer satisfy the overwhelming desire of abundant entertainment, regardless of the issue of legitimacy.
second generation : Kazaa
Unsurprisingly, the technology marched on after Napster went offline. As the number of files being available on unlicensed P2P file-sharing network tends to be unlimited, shutting down one of them means another one becomes popular. In 2001, the Kazaa P2P network transpired to be a success 8. Unlike Napster, Kazaa develops as a second generation file-sharing network using a decentralised system. The user requests the file he wants and then directly downloads it from another user who has that file. It also outperforms Napster in regard to the range of file types, with movie and television programmes available. The Fast Track protocol searches for clients who have faster connection speed, making them “supernodes” computers which are in effect responsible for data processing within the whole network.
BitTorrent
More recently, BitTorrent (BT) system has overcome much of the previous hurdles. It significantly circumvented the limitation of dynamic IP addresses. Despite breaking large-sized files into digital packets, a tracker server 9 is able to choose the best connections among all the seeder computers 10. Moreover, packets of the same file do not need to be from the same source. Such application allows multiple connections from a downloader to various seeder computer simultaneously to enhance the efficiency of downloading partial files. A successfully and completely downloaded file could subsequently serve as another seeder computer. In this way, more downloaders result in more demand as well as more supply, the network thus expands rapidly. And popular files could be distributed faster than the less popular ones.
Such gradual development in file-sharing technology leads to several major problems. Firstly, it becomes more difficult to identify each and every illegal file-sharer due to the decentralisation of copyrighted files from a central server to individual computers. The monthly average number of concurrent users in a Fast Track network could be as high as 4 million 11. It is impossible and impracticable to find out all copyright infringers. Secondly, legal proceedings become more complex while many individuals could be involved in the infringement of one copyright work. For instance, a film is broken into partial files and each contributing user only gives out parts of the complete file. Thirdly, the network owners of P2P systems would be able to escape from legal liabilities as they seem not to take an active role in illegal file-sharing. A number of lawsuits have already shown the difficulty which many courts need to encounter during the litigations.
Copyright issues
The law in copyright has been evolving for over a century by the passage of various international agreements and domestic laws. It is fundamental to note that the Berne Convention 1886 12, the Rome Convention 1960 and the Act of Paris 1971 have laid down the foundation of offering wide ranging protection of works on international level. The United Kingdom Parliament also responds to these multi-national agreements by implementing new and up-to-date provisions to its statute book. It is helpful to examine the latest applicable regulations in this country, namely the Copyright, Designs and Patents Act 1988 (CDPA) and the Information Society Directive (EC) 2001/29.
relevant legislations
Article 8 of the Directive guarantees the provision of appropriate sanctions and remedies when the copyright is infringed 13. It also ensures that copyright holders can bring civil actions for damages, injunction and the power of seizure of infringing materials 14. Moreover, the CDPA lists out the exclusive rights 15 which an owner of copyright in a work is entitled to. These rights are, however, subject to the exceptions provided by Chapter III of the Act, such as educational purpose16 and news reporting17.
Copyright infringement claim can be pursued only when copyright subsists in the work in question. A song or a film would be qualified under sections 5A and 5B of the 1988 Act respectively. After Norowzian v Arks (No.2) 18, a film itself falls within the definition of dramatic work and therefore is protected by s.3(1). The Court of Appeal was of the opinion that a film is a work of action capable of being performed before an audience. Although song lyrics are protected as literary works under s.3, further discussion is unnecessary for the present purpose. However, it should be mentioned that s.5B(4) states that “copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film”. This subsection effectively avoids a consumer, who simply copies a film and uploads it to the Web, being protected by the Act. The court has no difficulties in confirming that a copying of the whole of a film amounts to copyright infringement 19.
The intellectual property threat posed by the popularity of online file-sharing is more complicated. The direct infringement of the owner’s exclusive rights is regarded as primary infringement, whereas secondary infringement includes importing 20, possessing or dealing with 21, and providing means for making infringing copies 22.
Copyright, Designs & Patents Act 1988 ss.17-21
In many occasions, file-sharing inevitably causes primary infringement. Firstly, copyright is infringed when a person does or authorises another to do any of the acts provided by ss.17-21 23, either directly or indirectly 24. It would be sufficient in relation to the subsection that no matter the work is infringed as a whole or in a substantial part of it 25. Secondly, it is clear from s.17(4) that copying of a film is prohibited. In the light of Norowzian (No.2), a film can also be considered as dramatic work which in turn falls within s.17(2). The wording “copying…in any material form” attempts to include digital or electronic means, deterring most of the file-sharing. Thirdly, it is not uncommon to obtain a copy of movie online even it is unreleased or has not yet been released. This situation should be dealt with under s.18 which protects a copyright holder’s right to issue copies of the work to public. But the right will cease to exist after the owner publicise his work. Hence, this subsection is only applicable to partially or wholly unreleased works. Fourthly, s.19 concerns with performance, showing or playing of a work. This section might become a matter in issue whilst a built-in player is included in the file-sharing system. As Dr Gillen envisaged in her article 26, “this might increase liability” if such media player is included. She also recognised that there was no direct case law on this topic and thus sought to ascertain the meaning of “public” applied by the court. Her finding showed the court’s likelihood to hold that a file-sharing system with a media player “…may be at risk of infringing the copyright holder’s right…” 27. Fifthly, an apparently ambiguous section 20 specially regulates the communication of a work to the public by electronic transmission. It obviously relates to file-sharing on the internet but remains uncertain as to the definition of “making available” in s.20(2)(b). Fortunately a recent decision from the High Court offered some guidance. In Polydor Ltd & Others v Brown & Others 28, the Court accepted that this section would be satisfied when a computer connects to internet and runs a P2P software with copyright files places in open directory. Lastly, there are still a couple of sections 29 in the relevant chapter of CDPA have not been examined due to the fact that they are non-applicable. Moreover, it is submitted that a study of the substantiality requirement in s.16(3)(a) is not necessary since the major types of files being shared in P2P networks are songs and films. Most of the time, these files are entirely copied, leaving no room for discussion of the extent of substantiality.
Copyright, Designs & Patents Act 1988 s.23
In addition, it is worthwhile to mention s.23 of CDPA 30. The section provides four situations in which the alleged infringer will be liable for secondary infringement of copyright in the absence of a licence. The nature of online file-sharing does not render it to be in the course of business. A majority of music or film sharing would probably be unauthorised. Therefore, the focus in this section should be on the issues of distribution and prejudice. It is suggested that prejudice could be construed widely, although in the context of online file-sharing economic prejudice would be the primary concern. Given the huge number of file-sharers using P2P networks, it is conceded that the distribution of large number of infringing copies would certainly be prejudicial to copyright owners. It is emphasised that all types of secondary infringement 31 require the infringer’s knowledge that the copy of the work is an infringing copy. An objective test of such knowledge would be applied.
In short, it is no doubt that file-sharing would constitute copyright infringement, particularly in regard to the sharing of copyright films and songs.
Liabilities
While the Information Society Directive gives the power of claiming damages for copyright infringement, it is then necessary to determine which group or groups of participants involved in the P2P file-sharing process would be the most culpable. They can be categorised into three main groups, namely the ISPs, the P2P software developers and the file-sharers (sometimes known as end-users). Legal proceedings regarding online copyright infringement have been brought to the courts in many countries, owing to the international functionality of internet and file-sharing. It is useful to look into example cases from different common law jurisdictions under each category. In the following analyses, most of the claimants are record companies.
1. P2P Network Developers
In the United States, the first case of this kind is A&M Records v Napster 32. The Court of Appeal upheld an injunction granted by the District Court prohibiting access to infringing files. In the reasoning, the Court found that although Napster was capable of commercially significant non-commercial uses, it was Napster’s burden to police its own system. Meanwhile, an equivalent burden was also imposed on the plaintiff record companies to provide notice to Napster. Recently in MGM Studios Inc v Grokster Ltd 33, the Supreme Court held that Grokster was liable for digital piracy induced by the use of its system. The P2P network developer had a secondary liability since it created and distributed the software with the intent to induce copyright infringement. It should be acknowledged from the two cases that liability is not stemmed from the technology itself. Grokster was found to have generated income from advertisement, and the rise in the value of advertising space would be proportionate to the growing number of users. As such, it has benefited from the illegal file-sharing activities. Moreover, the court found that the defendants were in fact aware of the problem of piracy. Users have received technical support in relation to the download of copyright works. The findings in these cases seem to suggest that P2P developers are not totally culpable. Liability only exists depending on the facts of individual cases.
In Australia, similar case can be found in Universal Music v Sharman Licence Ltd 34, and the Federal Court also held that the respondent network developers have infringed copyright of sound recordings by authorising the users’ infringing acts. Again, one of the reasons was that the respondents, being the producer, had advertised the large population of their Kazaa P2P software.
The file-sharing technology has been changed after the failure of Napster. Developers no longer make centralise index and therefore have no direct control over the precise content of files available on the networks. Despites that the present generation of file-sharing allows wilful infringement by end users, the situation is beyond the developers’ actual knowledge and power of regulation. It would be practically impossible to impose strict obligation on developers to ensure the legitimacy of file-sharing activities. It is also vital to concur with the well-established decision in Sony v Universal City Studios 35, in which the U.S. Supreme Court ruled that the a product capable of significant non-infringing use could not give rise to infringement issue. Nevertheless, it remains a controversial matter that these technology providers clearly knew of the infringing purpose and had intentionally designed their products in such a way to benefit financially from the illegal file-sharing. While this matter has not been certain and software developers contribute to the society with technical knowledge, it is envisaged that the court will not hold them liable without a convincing reason.
2. Internet Service Providers (ISPs)
In Canada, the case of Society of Composers & Others v Canadian Association of Internet Providers 36 decided that an ISP could not be liable due to a “safe harbour” 37 excuse. The Supreme Court recognised that mere knowledge could not be regarded as authorising an infringement. It suggested that some positive acts, like giving approval or encouraging the infringing act, are essential to give rise to a liability. The role of ISP is to provide infrastructure of the internet and transmit online data.
An ISP’s potential liability to secondary copyright infringement is dependant on the existence and extent of its knowledge. Its passive role in the transmission of enormous amount of data makes it impossible to have knowledge of the data content. Indeed, ISPs could be required to actively take up a monitoring role. But it is argued that the heavy financial burden on ISPs to achieve such policy would lead to unfairness. At worst, the increased cost may eventually be distributed to the consumers, which effectively hinders the development of technology.
3. File-sharers (End users)
In the United Kingdom, record labels started to bring actions against individuals who use P2P software to download infringing copies of films or music. In Polydor v Brown 38, recording companies, who own the copyright of various music, applied for summary judgment from High Court which found in their favour. The defendant was liable for infringing the owners’ right of communication to the public of the work.
It is interesting that criminal sanction would also be used against end users. In the United States, a teenager was fined, sentenced to three years probation and ordered a community service order, as a result of transferring copyright movies and music 39. In Hong Kong, a man who was guilty of a piracy offence was imposed a sentence of three months 40. Both of these criminal proceedings are decided within one year ago, they demonstrate the recent attitude of the societies around the developed world. It is suggested that this might represent the judicial trend moving away from a tolerance approach, which shall be turned to in subsequent paragraphs.
It is observed that the laws in this area seem to be harsher in response to end users than the other two groups. Those who face with criminal sanctions are individual file-sharers. This could be justified as an end user has autonomy to decide whether or not to infringe copyright. It is a direct form of acquisition of illegal files from the network as well as an active part of placing copyright materials on public accessible hard drive.
Which group?
After all, the party which is most likely to have liability would be file-sharers. Although an ISP is economically worth being filed a lawsuit, it could be understood as in a passive position in the infringement process. Being merely a conduit of other infringers, it is seen as a “…good news for ISPs as it leaves the parties who are truly in dispute…to sort out the matter themselves” 41. The parties referred in the comment are the copyright owner and copyright infringer respectively. On the other hand, file-sharers should be the most culpable group with the inexcusable intention of copyright infringement. Despite the fact that individual end users are relatively unworthy to be sued for damages, an injunction or delivery-up order deems to be a more practical exercise of owner’s right to achieve the aim of loss prevention. It is submitted that the authority could consider utilising the provisions governing copyright in the criminal aspect. CDPA 1988 was amended by Copyright and Related Rights Regulation 2003 so as to accommodate the currently pressing issue of internet piracy. The Act itself contains rules which make the dealing with infringing articles a criminal offence 42. As regard the P2P file-sharing, the newly added s.107(2A) and s.107(4A) have significant effect. Such kind of activities would be punishable if the owner’s copyright is shown to be prejudicially affected. This requirement, coupled with the objective test of knowledge of infringement, is comparable to s.23 of the same legislation which has been mentioned above. Reference is made to the Hong Kong case 43, the defendant was convicted on the offence, which is drafted in very similar wording to s.107(2A). Evidence has revealed that more than 30 end users had become involved in the downloading process shortly after the copyright film was put online to BitTorrent network. The magistrate was of the opinion that the scope of interpreting the element of prejudice is wide. He took account of potential lost sales and movie rental market in measuring the extent of prejudice.
Problems of Law Enforcement
Theoretically, the blameworthy people should be subject to legal sanction. Copyright owner can bring action against copyright infringer, and the authority can prosecute those violating the rules set out in criminal law. However, problems can be spotted in three aspects, technical, common belief and political. Firstly, the absence of static IP results in great difficulty when tracing the infringer. It does not follow that an infringer will never be traceable, but the fact that many of them disconnect soon after transferring copyright works would undoubtedly bar the tracing. Law enforcing authority needs to request a complete list of end users from ISPs in order to carry out investigation, and the procedure would be time-consuming. Consequently, only the most frequent infringer will possibly be found as their computer would connect to the internet at most of the time. Secondly, it is clear that many people do not actually regard their file-sharing activities as wrong. Intellectual property, unlike real property, is not so tangible to make people become aware of it. Some may even ignore their wrongdoing by making excuses. For instance, they may claim that they would purchase or rent a movie disc only when it is worth the price. Thirdly, the court may be flooded with tremendous amount of case load as the number of infringers is very high. It is impossible to adjudicate upon the question whether every illegal file-sharer is guilty of copyright offence.
Causes of Copyright Infringement and Solutions
The root causes of rampant illegal file-sharing lie in the public’s ignorant attitude towards copyright and the relatively expensive genuine copies of works. Apart from legal sanctions, all parties can indeed take reasonable and practicable steps to overcome the problems.
On the part of P2P developers
they are recommended by anti-piracy company that detecting and filtering infringing music files are possible, in spite of the claim by the developers that past experience on such filtering system had failed 44. Networks, such as Kazaa, have already installed filtering system in order to respond to court’s order 45. But it is obvious that end users who intend to transfer illegal files would avoid using identifiable file names. As a result, this recommendation is ineffective even though practicable.
Cooperation and Compromise
Finally, long-awaiting and encouraging news emerged several months ago. A movie association reached a deal with the founder of BitTorrent, aiming at discouraging illegal online file-sharing 46. BT agreed to remove links unauthorised content from its search engine. The cooperation of two differing interests paves the way for further legitimising P2P file-sharing technology. Four months later, one of the major ISPs in the UK also entered into a deal with BT, accelerating the speed of legitimate downloads using the strengths of both networks 47. The fact that BT has 45 million users and accounts for one-third of the internet traffic has illustrated the potential influence of this solution.
It was estimated that the movie industry has suffered a US$3.5billion as a result of piracy. However, attempt to shut down P2P networks is a waste of time, and it does not offer any help. It is evident, from the evolution of P2P technologies, that file-sharers simply turn to other surviving P2P networks.
Conclusion
It is foreseeable from the analyses above that ISPs should be free from blame subject to their ability to control the illegal data transmission. The liability of developers of P2P networks is also dependent on their intention to benefit from and knowledge of copyright infringement. They are, however, capable of being sued in civil litigation for recovery of copyright owners’ loss in economical terms. The end users of P2P networks are likely to be the subject of criminal sanction, possibly due to their inabilities to recoup financial loss of right holders.
Last but not least, punishment, either financial or criminal, may only have deterrent effect. Figures show that P2P traffic has not dropped amid a series of legal proceedings were being brought by record industry 48. It would be a better idea to promote the sense of copyright protect, avoiding misconception in the first place. The process of achieving this objective is lengthy in spite of the value upon it. Therefore, compromise solutions are more desirable. The recent co-operations between reputable record companies and P2P networks were proved to be a success. Some other film production companies have followed the similar fashion 49.

Bibliography
Books:
Cornish & Llewelyn, Intellectual Property, 5th ed Sweet & Maxwell 2003

Davis, Core Text Intellectual Property Law, Oxford 2005

Firth, Lane & Smith, Readings in Intellectual Property, Sweet & Maxwell 1998

Halbert, Resisting Intellectual Property, Routledge 2005

Vaidhyanathan, Copyrights and Copywrongs, New York University Press 2001
Internet Resources:

(All URLs accessible on 30 Mar 2006)
About.com (http://compnetworking.about.com/od/bittorrent/f/bttracker.htm)

BBC (http://news.bbc.co.uk/1/hi/technology/4478224.stm)

BBC (http://news.bbc.co.uk/1/hi/entertainment/4837778.stm)

BBC (http://news.bbc.co.uk/1/hi/technology/4463372.stm)

BitTorrent.com (http://www.bittorrent.com/2006-02-10-NTL.myt)

CNET News (http://news.com.com/2100-1027_3-5474498.html)

Heritage.org(http://www.heritage.org/Research/InternetandTechnology/bg1790.cfm)

Hong Kong Judiciary (http://www.judiciary.gov.hk/en/legal_ref/judgments.htm)

Justis ( http://www.justis.com/ )

LexisNexis Professional ( http://web.lexis-nexis.com/professional/ )

Lawtel (http://www.lawtel.co.uk/)

Westlaw (http://www.westlaw.co.uk/)

(http://kvoa.com/Global/story.asp?S=2934754)

(http://www.slyck.com/stats.php)


Articles & Journals:
Edward Fennell

24 Jan 2006 The Times Student Law

Davis, Pryor & Keane – Peer-to-Peer Case Developments
2006 Ent. L.R. 17(1), p.25-29

Ganley – Surviving Grokster: Innovation & The Future of Peer-to-Peer


2006 E.I.P.R. 28(1), p.15-25

Gillen – File-Sharing & Individual Civil Liability in the U.K.: A Question of Substantial Abuse

2006 Ent. L.R. 17(1), p.7-14

Nwogugu – The Economics of Digital Content & Illegal Online File Sharing


2006 C.T.L.R. 12(1), p.5-13

Tofalides & Fearn – BitTorrent Copyright Infringement


2006 Ent. L.R. 17(2), p.81-83

Chen & Koh – Does P2P Have a Future? Perspective From Singapore


2005 13 International J.L. & Info. Tech., p.413-436

Thompson – The BitTorrent Effect


2005 Wired Magazine, issue 13.01
Cases:
U.K.

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

Donaldson v Beckett (1774) 1 Eng. Rep. 837

Duck v Bates (1884) 13 Q.B.D. 843

Harms Incorporated v Martans Club Ltd [1926] All E.R. 213

Jennings v Stephens [1936] 1 All E.R. 409

Polydor Ltd & Others v Brown & Others [2005] EWHC 3191 (Ch)

Tonson v Collins (1761) 96 Eng. Rep. 180



Australia

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



Canada

Society of Composers, Authors & Music Publishers of Canada v Canadian Association of Internet Providers [2004] 2 SCR 427



Hong Kong

HKSAR v Chan Nai Ming (2005) TMCC 1268/2005



U.S.

A&M Records Inc v Napster Inc 239 F.3d 1004 (2001) (9th Cir (US))

Sony Corp of America v Universal City Studios Inc 104 S.Ct. 774 (1984) (Sup Ct (US))

Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 125 S.Ct. 2764 (2005) (Sup Ct (US))


Legislation:
U.K.

Licensing Act 1662

Statute of Anne 1710

Copyright, Designs and Patents Act 1988



Others

Berne Convention 1886

Rome Convention 1960

Act of Paris 1971

Canadian Copyright Act 1985 C-42 s.2

Information Society Directive (EC) 2001/29 Art.8



1 Edward Fennell wrote “In an era of relentless obsession with style, the touchstone of contemporary cool in the legal profession is reckoned…to be an intellectual property lawyer…” 24 Jan 2006 The Times Student Law

2 Licensing Act 1662

3 Tonson v Collins (1761) 96 Eng. Rep. 180 King’s Bench Division;

4 Donaldson v Beckett (1774) 1 Eng. Rep. 837 House of Lords;

5 Statute of Anne 1710

6 The traffic to Napster kept growing significantly since it was introduced in 1999. The number of visitors went from zero to 60 million per month at its peak.

7 A&M Records Inc v Napster Inc 239 F 3d 1004 (U.S. Court of Appeal for the 9th Circuit 2001); in which part of the decision was to affirm the preliminary injunction granted by the Northern District Court of California. (http://caselaw.lp.findlaw.com/data2/circs/9th/0115998p.pdf)

8 Advertisement claimed that over 317 million people, which equals to 5 per cent of the world’s population, had downloaded Kazaa software.

9 Tracker server is a computer which is responsible for linking downloaders with the seeder computer and with each other. For more details, visit About.com (http://compnetworking.about.com/od/bittorrent/f/ bttracker.htm)

10 Seeder computer is a computer has the whole copy of the film or infringing file installed. Another BitTorrent user can download the whole copy of film or file from a seeder computer

11 http://www.slyck.com/stats.php

12 Ratified in the United Kingdom in December 1887

13 Information Society Directive (EC) 2001/29 Art 8(1) “Member States shall provide appropriate sanctions and remedies in respect of infringements of the rights and obligations set out…”

14 Information Society Directive (EC) 2001/29 Art 8(2) “Each Member State shall take the measures necessary to ensure that rightholders whose interests are affected by an infringing activity …can bring an action for damages and/or apply for an injunction and, where appropriate, for the seizure of infringing material as well as of devices, products or components referred to in Art 6(2).”

15 Copyright, Designs and Patents Act 1988, s.16

16 Copyright, Designs and Patents Act 1988, s.29

17 Copyright, Designs and Patents Act 1988, s.30

18 Norowzian v Arks (No.2) [2000] E.M.L.R. 67

19 Norowzian v Arks (No.1) [1999] E.M.L.R. 57

20 Copyright, Designs and Patents Act 1988, s.22

21 Copyright, Designs and Patents Act 1988, s.23

22 Copyright, Designs and Patents Act 1988, s.24

23 Copyright, Designs and Patents Act 1988, s.16(2)

24 Copyright, Designs and Patents Act 1988, s.16(3)(b)

25 Copyright, Designs and Patents Act 1988, s.16(3)(a)

26 Dr Martina Gillen “ File-Sharing & Individual Civil Liability in the U.K.: A Question of Substantial Abuse ” 2006 Ent. L.R. 17(1), at p.10

27 Dr Gillen based her finding on three of the cases which are Duck v Bates (1884) 13 Q.B.D. 843, Harms Incorporated v Martans Club Ltd [1926] All E.R. 213, and Jennings v Stephens [1936] 1 All E.R. 409.

28 Polydor Ltd & Others v Brown & Others [2005] EWHC 3191 (Ch)

29 Copyright, Designs and Patents Act 1988, s.18A Infringement by rental or lending of work to the public and s.21 Infringement by making adaptation or act done in relation to adaptation.

30 Copyright, Designs and Patents Act 1988, s.23; (a)possesses in the course of a business, (b)sells or lets for hire, or offers or exposes for sale or hire, (c)in the course of a business exhibits in public or distributes, or (d)distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright.

31 Copyright, Designs and Patents Act 1988, ss.22-26

32 A&M Records Inc v Napster Inc 239 F 3d 1004 (Court of Appeal for the 9th Circuit 2001)

33 Metro-Goldwyn Mayer Studios Inc v Grokster Ltd (by the Supreme Court of the United States on 27 June 2005)

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

35 Sony Corporation of America v Universal City Studios Inc (1984) 464 U.S. 417

36 Society of Composers, Authors & Music Publishers of Canada v Canadian Association of Internet Providers [2004] 2 SCR 427

37 Canadian Copyright Act 1985 C-42 s.2.4(1)(b) provides that persons who only supply “…the means of telecommunication necessary for another person to so communicate…” are not themselves an infringer of the work in question.

38 Polydor Ltd & Others v Brown & Others [2005] EWHC 3191 (Ch)

39 Full story at http://kvoa.com/Global/story.asp?S=2934754

40 Hong Kong SAR v Chan Nai Ming TMCC 1268/2005

41 Chen & Koh, “Does P2P Have a Future? Perspective From Singapore” 2005 13 International J.L. & Info. Tech., at p.419

42 Copyright, Designs and Patents Act 1988, s107

43 Hong Kong SAR v Chan Nai Ming TMCC 1268/2005

44 See report by CNET News titled “Witness assaults Kazaa filter claims” on 2 Dec 2004 (http://news.com.com/2100-1027_3-5474498.html)

45 See report by BBC titled “Kazaa to install anti-piracy tool” on 28 Nov 2005 (http://news.bbc.co.uk/1/hi/technology/4478224.stm)

46 See report by BBC titled “Deal signed on downloading piracy” on 23 Nov 2005 (http://news.bbc.co.uk/1/hi/technology/4463372.stm)

47 See official press release by BitTorrent.com titledNTL, BitTorrent and CacheLogic announce joint technology trial on 10 Feb 2006 (http://www.bittorrent.com/2006-02-10-NTL.myt)

48 (http://www.heritage.org/Research/InternetandTechnology/bg1790.cfm)

49 See report by BBC titled “Film fans get permanent downloads” on 23 Mar 2006, UK consumers could download and keep their chosen films by paying a sum of money, but not allowed to make copies or view the films on portable devices (http://news.bbc.co.uk/1/hi/entertainment/4837778.stm)



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