By Ranamit Banerjee

It’s one of the worst-kept secrets on the internet that virtually any album can be downloaded, freely and illegally

Intellectual Property Law and Online Music Piracy

The Berne Convention provides that all signatory states are to provide adequate protection for the authors of original works through the law of copyright or related rights. Berne convention signatories effect this through a variety of domestic provisions, including in the United Kingdom, the Copyright Designs & Patents Act 1988 (CDPA) and in the United States the Copyright Act 1976. By ss.3 and 12 of the CDPA the author of any literary, dramatic, musical or artistic work is given copyright protection over that work for the extent of their lifetime and for seventy years thereafter. In addition under ss.5A and 13A the author of a sound recording is given copyright protection for fifty years from the date of production of that recording. Thus original musical recordings are protected by both these provisions. An infringement of these rights occurs when someone makes an unauthorised copy of the work, or they issue such copies to the public or they make an adaptation of the work (primary infringement) or where someone imports, deals in or makes available infringing copies or who crucially under s.24 provides the means for infringement (secondary infringement).

The central issue in the development of Intellectual Property Law pertaining to online music piracy is the form of infringement. The actual copying occurs when one end user supplies another end user with a copy of a file held on his computer. This is the primary infringement which is though distributed throughout millions of individual end-users making it extremely difficult and costly to pursue. The Industry and its representative bodies have therefore sought to pursue actions against the intermediary suppliers of the means of infringement and distribution – the P2P service providers such as Napster and Grokster.

In the first case of this type Universal v MP3.com¹, the plaintiffs were presented with a number of defences by the defendant, but for reasons which will be outlined below, found a relatively easy victory. MP3.com had purchased several thousand music CDs which they used to create a massive online library which could be made available to MP3.com subscribers from any computer at any location. Subscribers were required to register their music by placing their CDs into the CD-Rom drive of their computer for verification. MP3.com admitted that they made copies of the relevant music files but argued that they were entitled to so do by reference to the defence of time shifting as set out in Sony v Universal Studios². In that case the Supreme Court had recognised that users of a Sony Betamax video recorder were allowed a limited defence of time-shifting broadcast programmes from one time slot to another (it had a significant non-infringing utility). MP3.com argued that in a similar fashion their customers were space-shifting recordings to which they were licensed to another location, and as such space shifting should be allowed by analogy to Sony. This was rejected by the court who had little difficulty in finding that the licence was not transferable in this fashion and who found that in building their library MP3.com were in direct infringement of the copyright of the authors of both the music and sound recording.

This case was followed by the A&M Records v Napster³ decision. This is the first true P2P decision and introduces the claims of indirect or secondary infringement through contributory and/or vicarious infringement. Napster offered a centrally managed database of user files which could be searched for the desired file. It then arranged connection between peers for the transfer of the file to take place. Napster could demonstrate that they did not make copies of the infringing files, nor did they directly trade in such files meaning that they could not be held to be directly infringing the copyright in them. As a result the plaintiffs instead claimed that Napster committed secondary infringement both contributorally and vicariously. To establish the first claim: contributory infringement the plaintiff had to establish that:

(1) the plaintiff had knowledge of the infringing activity &

(2) they provided a material contribution – actual assistance or inducement – to the alleged infringement.

To establish the second claim: vicarious infringement the plaintiff had to establish that:

(1) the plaintiff had knowledge of the infringing activity;

(2) the vicarious infringer is in a position to control the direct infringer and

(3) they benefit financially from the infringement.

In the Napster case the plaintiffs successfully argued that the centralised database of music files established point one under both heads, though on appeal the plaintiff was required to supply a list of infringing file names to the defendant. On the claim of contributory infringement the plaintiff demonstrated that Napster’s database provided such material assistance and that Napster knew of the large amount of infringing material which was available thereon. On the second claim, vicarious infringement, the plaintiff demonstrated that through its database Napster could control the infringement of its users and that Napster by advertising, promotion and other secondary means was profiting from the illegal activity of its users: as a result the Court of Appeals for the Ninth Circuit found Napster to be so liable.

This decision led to a new generation of P2P systems being developed. So-called second generation P2P networks like Grokster, Aimster and eDonkey removed the central database of the Napster model, its Achilles heel. Without this centralisation of control these P2P providers believed they immunised themselves from the fate of Napster: no control meant no knowledge and no secondary liability either vicariously or contributorally. In MGM v Grokster⁴, they appeared to be proven correct with the Court finding in their favour and reversing the previous order of the District Court on the basis that no contributory or vicarious liability occurred and that the defendants provided a technology which may be used for infringement, but which also may be used for legitimate purposes. The plaintiffs wished to have a finding of secondary infringement found against the defendants on the basis that they were wilfully ignorant of the use their customers made of their system and that such wilful ignorance was turned into profit by the plaintiffs. In other words secondary liability by wilful omission. The Supreme Court in its decision of June 2005, rejected these claims and instead found the defendants liable on neither contributory or vicarious liability, but instead found them liable under the new head of active inducement to commit copyright infringement. This was drawn from patent law and finds liability for secondary liability to be imposed when the infringement could be stopped at low cost to the secondary party, and the secondary party either profits from infringement or it facilitates or encourages infringement.

In Germany, Hamburg’s district court has ruled that RapidShare uses insufficient measures to protect against piracy⁵. The court ruled that the service must not just remove material for which it receives copyright complaints, it must proactively check content before it is made available online.

Whereas American “safe harbour”⁶ legislation allows companies like YouTube to get off the hook, denying knowledge of copyrighted material, Germany holds its file sharing services to a higher standard. The court dismissed the safeguards RapidShare already has in place as ineffective – an automated filter and a limited number of full-time staff. It was also unmoved by RapidShare’s arguments about the expense of better filtering.

The new face of illegal music downloading is Bittorrent. To distribute a file using the Bittorrent protocol, you use software to create a small torrent file. This contains a unique fingerprint representing each small part of the video file, so that it can be recognised and distributed in chunks rather than all at once. The torrent is uploaded to a server called a tracker. A link to the tracker is published online, and anyone who wants to download the file first downloads the torrent file from the tracker. The tracker then tells the downloader which users have the whole file, and the downloader begins receiving it in small chunks.

Counter measures and its Problems

Bittorrent is unlike early file-sharing methods such as Napster in two important ways. First, it is optimised for very large files, which makes it useful for transferring video. Second, it’s a fragmented network consisting of a hotchpotch of different download clients and websites

Companies specialising in countermeasures to P2P piracy, have been injecting fake files into the network to try to make Bittorrent too tiresome for people to use. These are open trust networks, and are not able to authenticate all of the material on the network.

Decoys have also been used in other P2P networks that are good at distributing large files, including Gnutella, eDonkey and Ares. A decoy might contain garbage, making it useless, or promotional content such as trailers, rather than the real product.

Another counter-piracy technique is when only 97% of a large file is uploaded. The remaining file parts are never released, meaning that people spend hours downloading most of the file, only to have it pause, endlessly and infuriatingly, just before the end. (These are sometimes called “stuck torrents”.)

However, the technique’s effectiveness is limited, according to torrent tracking and indexing sites. In addition to indexing, there are softwares like Fake Finder, a service using a complex algorithm to automatically identify fake torrent files. Visitors can read Fake Finder for free, and it publishes an online interface so that other indexing and tracker sites can automatically weed the fake torrents out of their search results.

There are further difficulties for anyone in the UK tempted to follow America’s lead, not least that such action will need to comply with more stringent privacy rules in Britain. An IP address will, in many circumstances, constitute personal data for the purposes of the Data Protection Act 1998 and, as such, should not be processed without a data subject’s specific and informed consent. Although copyright owners may argue that such processing is necessary for the purposes of their legitimate interests and therefore that they are entitled to take advantage of exemptions under the Data Protection Act, a user may still be able to challenge such processing on the ground that it prejudices his or her rights and freedoms or own legitimate interests, for example, the respect for his or her private life.

Another strategy is the introduction of unlimited mobile music services such as Nokia’s Comes With Music and Sony Ericsson’s PlayNow plus could result in British consumers downloading a staggering 2.1bn tracks a year, according to new research. For the mobile phone companies, unlimited mobile music services are yet another way of encouraging customers to stick with them and to download music on to their phones rather than “side-loading” it from their computer. Although 43% of mobile phone users who have a handset that includes an MP3 player make use of it, only 13% have ever downloaded a track from their mobile phone company.⁷

Although, there is a way the ‘pirates’ could probably avert danger – by following the trend set by the CBS Songs Ltd and Others v Amstrad Consumer Electronics Plc and Another [1987] 2 WLR 1191. It follows from the judgement that the supplier of a product with infringing capacity can escape liability by informing users of its copyright infringing capacity and condoning it.

Facts and figures

· A survey – a poll of 1,500 British consumers – found that online piracy fell by 10% this year, attributing this partly to more aggressive noises from internet service providers, which agreed this year to send warning letters to customers suspected of illegal file sharing.⁸

· In 2008, Alan Ellis became the first person ever to be charged for illegal file sharing in the United Kingdom. He is accused of making thousands of pounds from international music piracy website OiNK, which he founded in 2004.⁹

· In 2007 Jammie Thomas became the first person to be successfully prosecuted by the Recording Industry Association of America (RIAA) for copyright infringement in the world. She was fined $222,000 (£113,085).¹⁰

· Peter, a member of The Pirate Bay (a site that tracks files distributed using the Bittorrent peer-to-peer (P2P) file-sharing network), is working on buying his own island. . His group originally wanted to buy SeaLand, a former military base six miles off the coast of Suffolk, in the hope of turning it into an independent state with its own copyright laws – or lack of them. SeaLand’s current owner wouldn’t sell, so The Pirate Bay is looking at Caribbean islands instead. The Pirate Bay is located in Sweden, which has liberal laws concerning file sharing. It spurns legal takedown requests and even parades them on its pages. ¹¹

Conclusion

The importance of the battle against piracy lies in the potential it has to bring the industry to its knees.

Many critics of the music industry’s hard-line stance against online file sharing have argued that record companies need to embrace digital music. Legal, online music stores such as iTunes—and a relaunched version of Napster—have begun selling songs for $0.99, and their success suggests that many people are willing to pay for the convenience these services offer. Digital music sales may therefore offer a partial fix for the music industry’s woes.

Applying this view to online music sharing, some defenders of the practice argue that copyright law is not designed to protect musicians, for whom it costs relatively little to create songs, but instead to reward record companies, who make large investments in choosing to produce thousands of CDs. Record companies, according to this logic, benefit society by helping to distribute creators’ work, and the law should enable them to make a profit in doing so. But, the argument goes, since the Internet has made transmitting information almost free and thus made CDs largely unnecessary as a means of distributing music, record companies are no longer necessary—and neither are the laws that make copying songs illegal.

The development of the law in this area has been more like a cat and mouse chase. Going by the case laws, we can observe how the law has developed chasing the changes in the technology and the way music is pirated online. The present ongoing cases, like Viacom Inc. vs. YouTube, Google Inc, are believed to further develop the law pertaining to this sector.

“The heads of the record labels don’t know what to do about it. But I’m cool, if you want my music – download it,” Robbie Williams said.¹²

 

(Ranamit Banerjee is studying law at the University of Warwick)