Copyright infringement within the P2P networks; a comparative study
| Author | Antonio Javier Montoro Moreno |
| Position | Abogado |
The development of technology and its use on the internet has revolutionised the way in which various Intellectual Property rights specially copyright material is created, captured, stored, copied and distributed. Digital technology particularly reduces production and transaction cost and provides authors, right-holders and users with a wide range of new means to create market and share content, means which old media, such as books, vinyl records and video tapes do not offer. It further allows for the making of exact copies of the digital original in a fast and cheap manner, ‘thus enabling individuals to copy and distribute copyright material on a quantitative and qualitative scale previously only available to commercial operators (Larusson 2009)1’.
The birth of P2P networks and file-sharing software has supposedly been one of the most interesting revolutions in the law at a global scale. As with intellectual property rights in general, copyright has expanded over time, in terms of the types of works which enjoy copyright protection (from books to music, sculptures, films, software...), the scope of copyright protection (from protection against copying to protection against adaptation, performance, renting, distribution, communication...) and the time copyright protection lasts (from 14-28 years in 1710 to the author’s life, plus 70 years in most cases in 2007)2. According to Larusson (2009) the expansion has been sporadic and changes tend to be made on an ad hoc basis, ‘which has led to considerable uncertainty in this field’.
Legal uncertainty is ever present in the current digital era, where many argue that P2P networks have made illegal copying more widespread than ever before and so call for stricter enforcement of existing copyright legislation and the introduction of new legal measures to fight copyright piracy. Others maintain that the interest of right-holders should be weighed against the interest of society as a whole and that is important that access to digital material is not unduly restricted by stringent copyright legislation and various technological protection measures. The music and film industry are normally the main actors defending a further protection and enforcement of copyright, this fact can be seen throughout this work, the economic reasons which lead them to take that position are more than obvious. According to Davies (2009)3 the music industry is a major cultural and economic force in the UK, accounting for more than ‘£3.3 billion in economic activity (measured by Gross Value Added), 28,300 businesses and 257,200 direct and related jobs’.
It is not the purpose of this dissertation to balance a theoretical debate among these parties. Under the scope of this work, the analysis will focus upon the most relevant legal cases within this subject matter which have contributed to modify and even to create a new legal doctrine and law regarding copyright provoked by copyright infringement within the P2P networks and the file-sharing software.
The first chapter of this dissertation will analyse the complex legal factors involved in the subject of this dissertation. As a result, it must be discussed in general terms what is understood under the concept of Intellectual Property and what is the justification of its existence. The history and the legal framework of copyright will be analysed within the same section. The goal of these briefly discussed legal topics is to achieve a comprehensive knowledge of the relevant law and legal practice relevant to this subject area. Finally, it is paramount for the purpose of this dissertation to explain what P2P networks are and how they operate; this brief technical approach to the technology behind P2P networks will underpin the necessary knowledge to understand the following sections of this dissertation.
The main chapter of this dissertation; the second chapter will focus upon litigation against P2P file sharing networks. Within this topic some of the most relevant and leading cases will be presented and discussed. There has been a broad repertoire of sources used to develop and write this work. The literature is mainly based in Intellectual Property and Copyright books titles and in specialised articles and reports from technology and legal magazines available in the majority of the current legal data bases. The outcome of that research will be the analysis of the most relevant cases which have contributed not only to the development of technology, but also to the creation of a new legal doctrine surrounding the P2P networks and its legal implications regarding copyright infringement.
Under this particular chapter there will be references to the technology and legal implications regarding P2P file-sharing networks and protocols such as Napster, Gnutella, Fastrack, eDonkey 2000, eMule and bitTorrent. These cases will be analysed comparatively among them and with references to the local jurisdiction and the current legal framework in the United Kingdom. The comparison will be done addressing the typical technology elements present in the different mutations of the P2P networks and their legal consequences.
One of the purposes of this work will be the analysis of a fictitious case. A P2P application called: 2bmIne would be created. This application would allow users of social networks to share and exchange files without having to upload them or store them in any server. The exchange would be achieved directly between the users’ computers. The main objective of this fictitious case is to create a legal strategy, which would be implemented to assure the legality and profitability of the application and its business.
Finally, to conclude, the author will remark the main outcomes obtained from this research and study and how both have developed his abilities as a practitioner and how can he apply this learning to his personal development.
Rather than to analyse the nature or the broad scope of the intellectual property rights this study aims to analyse the copyright infringement in the P2P networks. It is crucial for the understanding of this work to have a definition and justification of what intellectual property (IP) means from a legal point of view.
The World Intellectual Property Organization (WIPO) has defined intellectual property right, according to WIPO, referring to the ‘products of the mind: inventions, literary and artistic works, any symbols, names, images, and designs used in commerce’4. WIPO divides intellectual property in two different categories: industrial property, including inventions (patents), trademarks, industrial designs, and geographic indications of source; and copyright, centred around literary works such as novels, poems and plays, films, musical works, and artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of television and radio programme broadcasters. According to The World Trade Organization (WTO), intellectual property right are ‘rights given to people over the creation of their minds’ and annotates ‘Creators can be given the right to prevent others from using their inventions, designs or other creations. These rights are known as intellectual property rights’5. In summary intellectual property rights are, firstly property rights, secondly they are property rights in something intangible and thirdly, they protect innovations and creations, and reward innovative and creative activity.
Having defined and divided IP, it is necessary to further analyse the justification for such rights and evaluate why they are protected and regulated by the law.
Davis (2008)6 considers two general arguements which are vital to justify the private ownership of IP. The first argument is based on the idea of the ‘Law and Economic’ justification. According to this approach, intellectual property rights are under definition intangible, this nature is related to the ‘public goods’ problem, which means that the society does not acknowledge that an intagible property can subsist, even if the goods seem to be in the public domain.
The production or elaboration of IP can be very expensive and time consuming. Most of the times it would not be enough just with the economic and temporary factor, but it would be also necessary to reach a considerable degree of inventiveness or originality. When this happens, it may be relatively cheap and easy to reproduce and it would be possible to copy...
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