In the Courts: Pursuing the P2P Pirates - Balancing Copyright and Privacy Rights

• Author: Ramón Casas Vallés
• Position: Professor

Exchanging - or sharing - files on peer-to-peer (P2P) networks is now a widespread practice. Via increasingly decentralized technological platforms, users can take what they need from other users' computers, while making available the contents of their own shared folder. It would be a delightful model of cooperation and generosity- were it not for the detail that, as often as not, what they are sharing actually belongs to someone else.

Except when exchanging material which is not copyright protected, or doing so with the rights owner's authorization, P2P file sharing entails copyright infringement of colossal proportions. It affects not only the right to reproduce a work, but also the right to make it available to the public. It is not covered by any limitation or exception to copyright. Nor could the reproduced files be considered private copies, since they are intended for collective consumption. The effects are suffered by small businesses as much as large ones - and simply to blame their business models seems a cynical excuse.

Who is liable?

In considering legal action, the rights owners have before them three distinct groups who might be seen as responsible.

First, those who create and distribute the file sharing programs. But, in itself, this technology is neutral, with both positive and negative applications. Anyone who simply makes and distributes P2P programs - without promoting their use for infringing acts - is not committing any infringement. (In this regard, the US Supreme Court ruling of June 27, 2005 found against Grokster because it explicitly encouraged copyright infringement by the users of its P2P services.)

The second group consists of the various Internet service providers (ISPs) 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. Yet be that as it may, the fact of facilitating such services does not constitute copyright infringement.

This leaves the third group: the P2P users themselves. Here, there can be no doubt. In the absence of authorization from the rights holders, the users are undeniably breaking copyright law. But how can these users be identified in order to bring legal action against them? The short answer is through subscriber data held by...