Whodunit! Assessing Copyright Liability in Cyburbia: Positing Solutions to Curb the Menace of Copyrighted' File Sharing' Culture

• Author: Akhil Prasad; Aditi Agarwala
• Position: Gujarat National Law University, Gandhinagar, Gujarat
• Pages: 1-12

Whodunit! Assessing Copyright Liability in Cyburbia: Positing Solutions to Curb the Menace of Copyrighted' File Sharing' Culture ¹

Key Words:Online Piracy, P2P Software's, Secondary Infringement Liability, Private Copying, Policy Options

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For economic incentives to work appropriately, property rights must protect the rights of capital assets...At present...severe economic damage [is being done] to the property rights of owners of copyrights in sound recordings and musical compositions...under present and emerging conditions, the industry simply has no out...unless something meaningful is done to respond to the ...problem, the industry itself is at risk.

-Alan Greenspan (1983)²

The wise words of the man who went to become the Chairman of Federal Reserve of the United States is germane even today, when the century has turned a new leaf. Analog piracy is passé and digital piracy has become a global concern. The borderless Internet, which originated in the United States is now a medium to which every man in the world can enjoy a green card and which can be accessed from almost any part of the planet where civilization exists.

From the times of Gutenberg's Printing Press to the modern day Internet technologies, a lot of water has flown beneath the bridges. The world has witnessed a progressive transition from the physical tangible to the ephemeral. We are leaving the industrial world of the past 250 years and entering the new networked world of cyberspace - the global interactive multimedia information and communications network. (Lin, 2001, p. 1) We all want to be a part of this digital information society and enjoy easy, quick and cheap access to varied genres of entertainment media such as mp3 music, full length DVD movies, software, games etc. at the click of the mouse button. Indeed, the pervasive information gateway has revolutionized the economics of accessing information and bears an influence on every facet of the human specie be it trade and commerce, business and industry, stock markets, laws and legislations, social and political environments, personal lives and personal relations of human persons who are mere 'units' in the lawless waves of cyberspace.

The so-called copyright industries welcomed and rejoiced the dot com boom, but soon realized and faced the technological blow, the wounds of which haven't been healed unto this date. Indeed, much 'meaningful' work has been done on the legal and technological front since Greenspan raised his concern in 1983, yet the above concern seems crystallized in time and there is a pressing need to revisit the present, anticipate the future and posit Page 2 legal and technological solutions for the approaching tomorrow keeping in mind the prevailing social, economic, political realities, fundamental democratic principles and technological possibilities and alternatives.

1. Online Piracy - The Beauty of this Beast

Intellectual Property Rights, principally copyright laws protect the immaterial property in the intangible cyberspace. However, infringement in the online environment is exacerbated, not only by the speed at which copyrighted data can be transferred across political boundaries of Nation - States but on a much basic level, where software, driven by the mens rea of internet pirates is utilized to duplicate the digital file into so many copies, sufficient enough to impair the market of the creator or the owner of the copyrights therein.

However, one must not forget that there is a line of distinction between 'owned knowledge' and 'shared knowledge' and what IP laws protect is the former which submerges into the latter after the definite period of protection expires. Though the Information and Communication Technologies (ICT's) has universalized the concept of communication and provided a common platform for mankind to carry out business, it is equally true that the very same technology is vulnerable to cyber pirates and can be exploited in the most perverse manner. Such is the beauty of this beast as well as its bane. Indeed, it has rightly been said that technology is a double edged sword and the ICT's are no exception to that. Truly, 'technology is copyright industry's best friend and worst enemy.' (Geetesh, 2007, p. 1)

1. 1 'Share' but with 'Care'

The digital world may be a need, an addiction, a facilitator, a tool which can be used from communication to creativity, for accessing news to penning down views (on online bulletin boards), to transact without 'being there' and celebrating the online culture to 'share'.

It is this 'celebration' which is under the legal scanner and has to be examined through the lens of copyright (as a discipline of law). This paper addresses a very delicate issue concerning P2P Networks which has proliferated the culture to 'share' which has naturally had an adverse impact on copyright industries. 'Delicate' because the fact is that almost all having access to the internet and personal computers use it almost indiscriminately and most of us would prefer to use it ad infinitum and unfettered including authors, like you and us who write pages of literature advocating the ban of such software's from the standpoint of legal sanctity. Courts ban it, grant injunctive relief against it, award damages yet, it resurfaces itself only under different names and once installed, the network grows uncontrolled by the hour. Therefore, mere criticism (though constructive) would not suffice, but an attempt has to be made by the academic community to offer alternative approaches, policy options and realistic solutions to curtail this social 'evil'. This paper attempts to do that precisely.

Such issues arise in the network society because there is no cyber police or e-government. It is like space, where monitoring (to protect the work against the abuse of infringement) is a technological myth. The artistic creations of creative individuals were never immune from piracy but piracy with respect to P2P Networks has the effect which can be compared to the impact of malignant cancer on the body of the patient. Indeed, it has the potential to destroy the prospects of securing fair returns on labor, just and well deserved monetary rewards, basically defeating the stimulus which motivated the creation or from a jurisprudential perspective, defeating the goals of copyright law which in the preambular dictates of Queen Anne's statute ³ have been beautifully described as 'An Act for encouragement of learning'. Your favorite music or movie is downloadable at the click of the mouse. It is not the question of money, but only a matter of time. Such are the excesses of 'access' in the online environment. Copyright seems meaningless.

1. 2 The Age of P2P giants - Ever heard of 'Free' Copyrighted Digital File?

If it is free, it cannot be copyrighted. If it is copyrighted, it cannot be free. Business is not equivalent to charity but P2P swapping giants seem to combine business with charity by sharing copyrighted works for free and making big bucks behind the curtain under the guise of 'dual use technologies' which has sounded the death-knell of digital copyright industry.

We are all witness to the fact that the information and communications technologies coupled with state of the art software applications has completely altered the dynamics of industries who have a 'business stake' in copyright laws ⁴ and whose operations are tangential to technological developments. Online piracy in copyrighted works is rampant and the digital threat to copyright has assumed incalculable proportions with the Page 3 advent of P2P Softwares which can be downloaded for free. The ease and speed with which a work can be replicated, once it is rocketed into the dot-com stratosphere compounds the problem even further. And thereafter, such unauthorized data is made available to the world through the file sharing network. In other words, access to a P2P service can be best described as a passport to piracy. Indeed, it is a 'theft' of intellectual property. But the moot question is - Who is liable and to what extent? Is it the liability of the person who in an unauthorized manner downloaded the copyrighted content without paying the legitimate price or is it the P2P Software creator who is to be caught by the long arm of the law or is it the Internet Service Provider who has abetted the offence? Whodunit?

As copyright is technologically challenged, the courts become the arbiters of how copyright will be interpreted. (Halbert, 1999, p.50) They therefore shoulder a great responsibility to protect digital copyrights even where the legislature is yet to frame rules to respond to technological developments which lack legal sensitivity.

2. Species of Secondary Infringement

Unlike the Patent Act of the U.S. which makes those who actively induce infringement of a patent ⁵, indirectly liable as infringers, copyright law does not expressly render...