By Akash Vishvakarma
It is an intriguing truth that copyright law is intertwined with online file-sharing technologies and both share an immense relationship, whether for better or worse. An early scrimmage between the U.S. Government and file-sharing technologies such as Napster (1999), FastTrack/Kazaa, WinMX, LimeWire and BitTorrent yielded a lesson to P2P developers about the legal consequences of piracy of the artistic work of others.
With the emergence of the Internet, valuable digital data can be copied, shared and downloaded easily. The article notes the growing importance of the Internet and the duty to regulate it. The IFPI survey referred to in the article found that almost 20 billion songs were illegally downloaded in 2005.
P2P Sharing: Conceptual Approach
Today our main concern is not “how we play media files but where it comes from and what we do with it.” Challenges are huge before lawmakers to legislate and regulate P2P file-sharing over the network.
P2P has created an easy way of sharing files over the Internet and downloading without concern for the incentives and royalties of the creator, owner, publisher or broadcaster. It enables users to transfer files, videos and spreadsheets to any part of the world over the Internet and its nearly untraceable structure makes it more prone to cyber-security concerns and criminal activity.
Modern peer-to-peer networks are more advanced than early networks such as Napster. Unlike today’s networks, Napster was not a pure peer-to-peer network because it maintained lists on central servers of connected systems and the files available to share. Today’s networks are highly decentralized but work on the same principle.
Replication means that a replica of the file is made and saved over the wide network and then downloaded from the various networks. Even if a large network is taken offline, this may not hamper the files being distributed over the wider network.
Issues Concerning the Problem
For a copyright lawyer, every unauthorized reproduction and distribution through file-sharing systems over the Internet should create suspicion from the outset. There is tremendous pressure on governments across the globe to stop piracy over the Internet.
The availability of files has had an adverse effect on sales, as consumers are unwilling to pay higher prices. The technology also creates a vulnerable position because participants provide open access to data stored on hard disks and computers. The risks include:
- Breach of privacy and loss of personal information: personal data such as bank account details and financial statements stored on computers and laptops may become accessible to others.
- Spyware: hackers may install spyware on laptops and computers, allowing them to monitor keystrokes and ascertain passwords.
- Viruses: viruses are often spread through P2P applications.
- Exposure to legal risk: imprudent use of P2P file-sharing may result in legal action for unauthorized downloading or distribution of copyright material.
Legal Intersection with P2P File-Sharing
The article focuses on two kinds of liability or infringement: (1) direct infringement and (2) contributory and vicarious infringement.
1. Direct Infringement
The real question is whether sharing files over the Internet is authorized by copyright law or otherwise permitted under the Copyright Act. If not, what is the extent of liability, and are the end-users who directly violate exclusive rights of copyright owners to be called direct infringers?
2. “Contributory” and “Vicarious” Infringement
Why shift liability to those who develop and distribute peer-to-peer file-sharing tools when the developer has no direct involvement in the whole file-sharing process? The reach of copyright law is beyond direct infringers because it is the developer who provides the platform for distribution of files over the network.
3. Key elements for proving liability
i. Contributory infringement
It is somewhat similar to aiding and abetting in criminal activity. One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another may be held liable as a contributory infringer.
- Direct infringement by someone.
- Knowledge about the activity, at least some knowledge of the activity being done.
- Material contribution: whether the accused induces, causes or materially contributes to the underlying activity.
ii. Vicarious infringement
In P2P file-sharing, a person may be liable for vicarious infringement if he supervises the activity of the direct infringer or finances the activities of developers. The copyright owner must prove direct infringement, the right and ability to supervise and control the activity, and a direct financial benefit from the underlying P2P activity.
Indian Law Combating P2P Network Sharing
Copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. It protects the expression of ideas. In India copyright is governed by the Copyright Act, 1957, the Copyright Rules, 1958 and the International Copyright Order, 1999. Section 14 defines copyright, Section 13 deals with the works in which copyright subsists and Section 51 deals with infringement.
Downloading may fall under Section 51(a)(i), but there is an exception under Section 51(b)(iv) for one copy imported or downloaded for private and domestic use. The article argues that this may operate as a defence where material is downloaded from servers outside India.
Section 2(dd) defines broadcast and Section 39(a) concerns making audio/video recordings for private use with bona fide intention. The article suggests that certain downloading for teaching or research with bona fide intention may qualify as valid use.
The Betamax Defence
The Betamax defence argues that technology developers cannot be held responsible for unlawful acts of end-users merely because they make tools for general purposes. The defence was discussed in the U.S. Supreme Court case involving the Sony Betamax VCR.
In India there are not enough lawsuits dealing with illegal file sharing. Several High Courts have granted John Doe and Ashok Kumar orders in cases relating to Bollywood movies. Another immediate remedy is ad-interim ex-parte injunctions against unidentified defendants and unknown ISPs.
Global Countries Combating P2P File Sharing
The United States earlier had a different perspective on P2P sharing but, after Napster and other cases, developers began being held vicariously liable for copyright infringement.
Canada is described in the article as the only developed country where it was legal to share a file over the Internet. In BMG Canada Inc. v. John Doe, the court decided that downloading music, audio and videos did not infringe the copyright of the right holder, leading to criticism from other countries and organizations.
The United Kingdom adopted the Digital Economy Act, 2010, under which illegal downloading and sharing could have serious repercussions for website hosts and technological proprietors.
Solution to the Problem
- A centralized policy should be adopted to deal with the problem.
- Give up EULA; instead, a local vendor should be given some autonomy to decide the terms and conditions as the ultimate seller.
- Legalizing file sharing could prevent further loss, while taxing the activity could generate revenue and minimize some loss.
- Prohibiting open-source networks could lead to huge loss and promote illegal hacking of private information from systems.
Conclusion
When stakes are high, the caveat cannot simply be ignored. Along with its benefits, P2P technology has brought vulnerabilities, including increased security risks through continuous access to personal information from computers. The popularizing trend has made thinkers and legislators consider the growing concerns.
The technology was developed with a vision of benefiting common people, but it has also begun harming people. As of now, the article concludes, the best course is to stay away from P2P technology so as to further slacken the damage.