Internet Copyright Protection

Overview

It may well seem that “new technological inventions such as the introduction of player pianos and perforated rolls of music in the 1910s and the introduction of radio in the 1920s have often led to changes” in order to tackle infringement of copyright law. “Copyright protection has grown over the centuries, from the term-implied right to control the copying of literary work to the right to control the internet transmission of digital recordings of all sorts of literary, dramatic, musical, and artistic materials”. Peer to Peer is the most recent area which copyright law was required to challenge. This text provides a brief statement of what is copyright law based on the United Kingdom legislation which is similar to the whole world and its relationship with internet law, examines how the copyright law has respond to the challenges of technological development with reference to the old and recent case law in US and Europe; and evaluate the way which copyright law has responded in this issue.

Copyright, Designs and Patents Act 1988

Firstly, “copyright is a property right that subsists in certain specified types of works provided for by the Copyright, Designs and Patents Act 1988 (CDPA); the owner of the copyright subsisting in a work has the exclusive right to do certain acts in relation to the work, such as making a copy, broadcasting or selling copies to the public”. Literary, dramatic, musical, artistic works are the main protected works listed in the Copyright, Designs and Patents Act 1988. However, under this Act a work is protected by copyright law only if it is original which means that it must be originated by the author, its creator, and that it was not copied from another work”. The Act also provides that copyright for a work exists for the life of the author plus 70 years.

Furthermore, under the Copyright, Designs and Patents Act 1988 there are 3 ways of copyright infringement. Infringement occurs when a person commits any of the “restricted acts in the CPDA”. The 3 ways of infringement are the “primary infringement under the sections 16-21, authorising another person to do any of the restricted acts under the section 16(2) and various forms of secondary infringement under the sections 22-26”.

To continue, an essential point that you must be aware of it is that Copyright laws are similar in the whole world as Intellectual property law has taken an international form. The European law has been developed within the framework of International Treaties and Convention in order to make sure that same rights and protection will be enjoyed in each state for both nationals and non-nationals. This aim was succeeded by several treaties and conventions. The Berne Convention 1986 was the first convention in relation to copyright law. Further, in 1996 the introduction of, the WIPO Copyright Treaty 1996 (WCT) and the WIPO Performances and Phonograms Treaty 1996 (WPPT) (commonly referred to as the “Internet Treaties”) which had been signed by 100 countries further harmonized the copyright systems. Finally, the European Parliament in order to tackle the new technological development introduced the “Information Society Directive” (2001/29/EC).

Moreover, what needs to be considered is the meaning of Peer to Peer (P2P) file sharing which is the most recent technological development and copyright law was challenged to face it. “Peer-to-peer file-sharing permits users to directly access files stored on computers of other users in a network. The software to enable such file sharing is generally provided free of charge to users”. The P2P is responsible for the most important problem that recording companies have suffered by illegal copies, on the basis that there is no loss of quality of the file and “enables pirates to reproduce and distribute perfect copies of works”.

P2P file sharing

As we can see P2P file sharing is a perfect designed system which basically infringes copyright owners’ rights. “Under the Copyright, Designs and Patents Act 1988, s.16(2), copyright in a work may be infringed by a person who without the licence of the copyright owner authorises another to do any of the acts restricted by the copyright act. Therefore, although another person may be the direct infringer, the person found to have authorised copyright will be liable for a separate action of infringement from the act which itself is authorized” .”The nature of digital file-sharing technology inevitably implicates copyright law. First, since every digital file is “fixed” for purposes of copyright law (whether on a hard drive, CD, or merely in RAM), the files being shared generally qualify as copyrighted works. Second, the transmission of a file from one person to another results in a reproduction, a distribution, and possibly a public performance (in the world of copyright law, “public performance” includes the act of transmitting a copyrighted work to the public)”. Hence, copyright law was under an obligation to face the challenge of technological development and basically the challenge of infringement of copyright by P2P users.

Now, we will turn our attention on how UK and US copyright law had responded to the technological development in the past.

Before introducing you to the UK and US early case law, we will look at one of the most important early cases, the Australian case of Moorhouse v University of New South Wales [1976] RPC 151. In this case, the claimants were the person who wrote a book and the company who had a license to publish the book. The defendant was the University of New South Wales. The claimants brought an action to the court on the basis that a third person has used the University’s copy machine in order to copy ten pages of the book in question. The claimants argued that the University was liable on the ground that they authorized infringement of copyright work.

The court held that the University was liable under copyright law on the basis that any person who makes available and has under his control any mean by which an infringement of copyright law is possible to commit and failed to ensure by taking reasonable steps that such infringement will not be made then this person is capable to held liable for authorizing infringement.

To continue, we must remind you that under UK Copyright law (which as it is mentioned above is similar to the majority of copyright systems) an infringement of copyright law arises in 3 ways. These are the primary, secondary and various forms of secondary infringement. The form of infringement which is relevant to this text is the secondary infringement under the section 16 (2) of the Copyright, Designs and Patents Act 1988. In the following case it will be seen that British courts have found a person liable for secondary infringement if he “authorises a person to do a restricted act” or as a “joint tortfeasor”.

The leading case to authorisation in UK was the case of CBS Songs Ltd v Amstrad Consumer Electronic plc [1988] EIPR 345. In this case, the appellants who were record companies brought an action against the respondents on the basis that they have selling copy machines without make sure that copyright in sound recording will not be infringed. Also, that the respondents’ sales and advertising encouraged the public to commit an offence under the Copyright Act 1956 s.21 (3). The Court of Appeal found that there was a case against the respondents but they found them not liable. The appellants appealed to the House of Lords but the appeal was dismissed.

The House of Lords stated that there was not a breach of section 21 (3) on the ground that even though the respondents facilitated the public with the machines, they did not authorise them to commit infringement of copyright law since they did not have the right to do so. Also, it was stated that they cannot be found liable for joint infringement since the machines could be used both lawful and unlawful; and that they could not be found liable on tort since there is not “duty to prevent or discourage or warn against infringement by others”.

Moreover, the US copyright system is differs on how a person can be found liable for secondary infringement. Under US law there are two forms of secondary infringement, the contributory and the vicarious copyright infringement.

“Contributory infringement is similar to “aiding and abetting” liability: one who knowingly contributes to another’s infringement may be held accountable. Or, as the courts have put it, “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. Vicarious liability is derived from the same legal principle that holds an employer responsible for the actions of its employees. Vicarious liability applies where a defendant has the right and ability to supervise the direct infringer and also has a direct financial interest in the infringer’s activities”.

Sony Corp v Universal City Studios Inc

A famous early case in US copyright law is the case of Sony Corp v Universal City Studios Inc. (Sony-Betamax) 464 U.S. 417 (1984).

In this case, proceedings brought against Sony on the fact that VCR’s could record television copyright programs. The claimants argued that Sony was liable of secondary liability for copyright infringement. Also, it was argued that Sony had knowledge that infringement can be made, and so they must be found liable for contributory infringement.

The Supreme Court decided in favour of Sony stating that VCRs can be used for non-infringing uses, thus Sony was not liable for copyright infringement.

The court held that “the sale of copying equipment does not constitute contributory infringement” on the ground that such equipment can also be used for other “non-infringing uses”. Further, it was held that there was not any evidence to support that Sony persuaded infringement of copyright law based again on the fact that they were capable of being used for non-infringing uses. Finally, Sony cannot be found liable for copyright infringement under US law on hypothetical claims that they had knowledge that VCRs would be used for infringement of copyright law as long as VCRs can be used for non-infringing uses.

It can be argued that technological development around the world has caused several problems to the music industry and liability against individuals or firms was failed to succeed. Arguably, the problem of copyright infringement as a result of the technological development had been increased by the introduction of new technology such as the peer to peer file- sharing. Hence, we must examine how the copyright law in US had respond to this new technology with reference to case law.

The problem with the peer to peer file-sharing was first examined in the famous case of A&M Records, Inc v Napster, Inc (9th Circuit), 25 March 2002.

Before proceed to the facts and the principles of the case we must explain the way which Napster peer to peer file-sharing works.

Napster

A type of software called Napster was created in 1999 in order to help college students to locate music files. It is an online service which users are able to illegal share of digital copies such as MP3s via the Internet. Napster does not have a “central system that stores and deliver the files” in question; the files remain on the users’ computers and it is free of use.

From its creation, the Napster service was both popular and controversial and this is the reason where the Napster case was one of the most “controversial” cases in US. In this case, representatives of a number of recording studios claimed that Napster was liable for contributory and vicarious infringement.

“The trial court granted a preliminary injunction in favour of the plaintiffs. Napster was enjoined from engaging in, or facilitating others in copying, downloading, uploading, transmitting, or distributing plaintiffs’ copyrighted musical compositions and sound recordings”. Further, Napster was obligates to remove any user file from the system music index and Napster was obligates to provide notice of specific infringing files. During the next 3 months, Napster did not comply with the court’s order and an order for temporary shut down of the system was made. Both Napster and claimants appealed the district’s court decision.

Napster appealed the decision of shutting down the system and the claimants the requirement to provide “file names found on the Napster index that correspond to their copyrighted works before those works are entitled to protection”.

The Ninth Circuit held that Napster infringes the right of “reproduction and distribution of the copyright holders” on the basis that the “uploading of file names to the search index for other users to copy, infringed the distribution right and the downloading of files containing protected material infringed the reproduction right”.

The Court found that Napster was liable for both contributory and vicarious liability and made an order to shut down the server. “Napster had both actual and constructive knowledge of the infringements and financial interest in the infringing activity. Napster also had the ability to police the infringing activity”.

It can be argued that the decision in the case of Napster was the beginning of the end of the peer 2 peer file-sharing. The final “blow” was given by the Supreme Court in the leading case of Grokster .

Grokster was a type of free software that enabled computer users to share digital files through P2P file-sharing via the internet. This software was working similar to Napster software but differs on the fact that there was not a central server; users downloaded the software into their computers and transferred the files with permission directly from one computer to another; thus the process did not control by Grokster.

The claimants were a several number of copyright owners who brought an action to the court against Grokster and Streamcast claiming that the defendants “intentionally distributed the software to enable users to reproduce and distribute copyright works without the authorisation of the copyright owners”.

The case was firstly examined by the District Court for the Central District of California which found the defendants not liable for contributory and vicarious liability based on the principle set out in the case of Sony-Betamax.

The claimants appealed to the Court of Appeal which found that the defendants were not liable for both contributory and vicarious liability. The Court of Appeal held that there was not contributory infringement on the ground that the defendants did not have control on the used of the network, so actual knowledge of infringement could not be established. Further, the absence of a central server made the defendants unable to supervise the infringing conduct, hence the defendants were not liable for vicarious liability. The claimants appealed and the Supreme Court agreed to hear an appeal against Grokster.

“The Supreme Court found evidence of Grokster’s and Stream-cast’s intention to facilitate the unlawful use of the software through such activities as streaming advertising of their software program onto computer screens; sending electronic newsletters promoting the software’s ability to provide popular copyrighted music;”. Also the Court found evidence that Grokster was helping the users to find certain copyrighted files.

Both parties have argued that the Court must reinterpret or affirm the Sony rule. The Supreme Court disagreed and held that the lower court has erred in deciding that the Sony rule prevents the court to impose liability if there is evidence of intent.

Hence, the Supreme Court introduced a new standard of secondary liability based on the “US law against inducement”. It was held that the defendants were liable of secondary liability of copyright infringement because they actively or knowingly assisted the user’s direct infringement and this infringement was encouraged by advertising infringing uses.

Finally, the Supreme Court held that the non-infringing uses principle set out in the case of Sony-Betamax did not apply in this case since the VCRs could be used for non-infringing uses whereas the Grokster software could be used only for acts that constitute copyright infringement.

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

The most recent case in relation to a peer to peer file- sharing is the case of Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242. In this case the Australian Court heard proceedings against Sharman Network, the company which operated the Kazaa peer to peer file-sharing software. The claimants claimed that Sharman was liable for copyright infringement on the ground that the manufactured of the Kazaa software constituted authorization to download copyrighted music files. Sharman argued that they did not maintain control of the service and any control exercised was through anti-pornography filters contained in the Kazaa software.

The Australian Court followed the decision in the case of Grokster. It was held that the defendants were liable for copyright infringement because they had knowledge that the software could be used for copyright infringement and they had not “implemented any technical measures” to prevent the infringement. The decision was based on the fact that “2 of the defendants sponsored a web campaign attacking the record companies and their opposition to the sharing of copyright music files”.

To conclude, recent technology has made easier the way which a person can have into his position copyright protected works. Although, the fact that a person without permission can easily have into his position a copyright protected work has increased the need that copyright law must successfully challenge the problems arising with the technological development; thus, the question arises now is whether the copyright law is able to stop or prevent infringement as a result of the technological development.

Legislators in UK and US have found difficult to respond to the challenges brought up by technological development while the proposed American Inducing Infringement of Copyrights Act was abandoned and in Europe, a proposed draft Directive aimed at enforcing intellectual property rights through criminal measures is meeting stiff opposition.

Furthermore, the dispute parties (copyright owner and copyright user) have started to realize that this is a war without end. As you can see above, both parties have spent millions of money to the courts in order to prove their arguments. On the beginning, the courts decided on favour of the companies who manufactured certain machine based on the fact that they could be used for non-infringing uses. Later, in cases such as Napster and Grokster the courts changed their view in some aspects and found the defendants liable on the ground that they had knowledge that an infringement would be occurred and also they had promoting the infringement by advertising. However, it can be argued that operators or owners of a new technology will ensure to cover any issue that it may be found against them by the courts either by relying on previous decision or by introducing new standards of liability.

To continue, the new technological development is increasing the problem of copyright infringement and with conjunction of “gasps” in legislation, new issues are taking place and no-one can be sure the end of this problem. The majority of the people do not know that using a technology may result to an offence against them; or they have knowledge of their acts but they hid behind the difficulty to find them.

It is a worldwide famous that infringement of copyright work is continue to exist and millions of people are using the technology in order to have in their position a music or movie file on free instead of going and pay sometimes a large sum of money.

Finally, it can be argued that as long as the problem of copyright infringement is continue to exist and any combat is not available yet then the best solution for copyright holders is to create a similar but most attractive models from Napster and Grokster in order to encourage the public to buying from them.

Bibliography

Cases:

• • Moorhouse v University of New South Wales [1976] RPC 151

• • CBS Songs Ltd v Amstrad Consumer Electronic plc [1988] EIPR 345

• • Sony Corp v Universal City Studios Inc. (Sony-Betamax) 464 U.S. 417 (1984).

• • A&M Records, Inc v Napster, Inc (9th Circuit), 25 March 2002.

• • Metro-Goldwyn Mayer Studios Inc v Grokster, Ltd 5445 U.S. 125 S. Ct 2764 (2005)

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

Journals:

• • Akester Patricia “Copyright and the P2P challenge” (2005) E.I.P.R 106-112

• • Ganley Paul ‘Surviving Grokster: innovation and the future of peer-to-peer’ (2006) E.I.P.R. 15-25

• • Margaret Jackson & Maria Shelly, ‘Black Hats and White Hats: Authorisation of copyright Infringement in Australia and the United States’ (2006) IJL&IT 14 (28)

• • Simone Blakeney ‘Peer to Peer file sharing under assault’ (2006) C.T.L.R 12(2), 55-57

• • Thomas Hays, ‘The evolution and decentralisation of secondary liability for infringements of copyright-protected works: Part 1′ (2006) E.I.P.R. 28(12), 617-624

Books:

• • Bainbridge. I. Intellectual Property (6th ed. Pearson Education Ltd, Harlow, England, 2007)

• • Lynn Cousins, Internet Law(Leeds Metropolitan University 2007-08)

Websites:

• • World Intellectual Property Organisation “The Impact of the Internet on Intellectual Property law”

• • Fred von Lohmann ‘Peer-to-Peer File Sharing and Copyright Law: A Primer for Developers’ (2003)

• • Fred von Lohmann, “ IAAL: What Peer-to-Peer Developers Need To Know about Copyright Law”(2006)
  • < http://www.eff.org/wp/iaal-what-peer-peer-developers-need-know-about-copyright-law>

• • Crews Kenneth, ‘A&M Records, Inc. v. Napster, Inc.: Implications for the Digital Music Library’ (2001) ,

• • A&M Records, Inc v Napster, Inc (9th Circuit), 25 March 2002