Manual Peer-to-Peer File Sharing and Secondary Liability in Copyright Law

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Louis Vuitton arguably expanded the concept of contributory liability, but it also exposed the fine line between liability and immunity for modern web hosts.

Related Practices

A web host that has both knowledge of infringement and the ability to control it may face substantial penalties if it is not compliant with a safe harbor. On the other hand, a more removed host that does not have the ability to control potential infringers remains relatively safe. Crucial to the reversal of the verdict with respect to MSG was the fact that it did not host any infringing websites on its servers.

As always, compliance with a DMCA safe harbor remains an option, and likely one that Akanoc wishes it had considered. Once it is clear that a foreign OSP will be subject to American jurisdiction, strict compliance with the terms of the relevant DMCA safe harbor will be required. Copyright Office and make the agent available to receive official notices. The text requires that the OSP adopt, reasonably implement, and inform subscribers of a policy providing for the termination of access for repeat infringers. OSPs have been somewhat reluctant to fully comply with some requirements of the DMCA safe harbor for fear of alienating their consumer base or risking legal action from them.

The fear is that the first company to crack down on repeat copyright infringers may lose revenue directly by expelling subscribers and indirectly by developing a reputation for harsh enforcement policies, leading subscribers and potential subscribers to defect to competitors. Though the concern is understandable, several companies have been able to overcome this problem by negotiating a collective solution.

With little clarity from the courts, some OSPs have taken it upon themselves to implement graduated response policies. In , a group of broadband providers combined with the MPAA and Recording Industry Association of America to develop the so-called six-strikes policy. While this is a seemingly conservative measure, it is a practical first step by prominent OSPs and right holders to take control of the repeat infringer issue. Right holders achieved a private solution to supplement their constant stream of DMCA litigation, which had generally been successful on the merits, yet had not effectively curbed online infringement.

The policy has not gone without criticism, however. Notably absent from the discussions that led to the adoption of the six-strikes policy were Internet users themselves. In the wake of the public backlash to the proposed passage of the Stop Online Piracy Act in , many Internet users saw the OSP-right holders agreement as another setback to freedom on the Internet. It remains to be seen whether Congress or the courts will step in to provide greater clarity on the repeat infringer issue given the high-profile nature of the debate.

The fact that many of the foreign OSPs, even those who claim to be beyond the reach of U. With courts taking a pro-jurisdiction stance to foreign companies, OSPs have found it in their self-interest to comply with notice and takedown and formulate at least some response to repeat infringers. Strict compliance with notice and takedown procedures and a repeat infringer policy will insulate the OSP from copyright liability without being overly burdensome.

An OSP of reasonable scale should have little difficulty registering a notice agent and responding to infringement notices. The alternative—as seen most recently in the file-sharing cases—is an uncertain future, with the possibility of an injunction, damages, or even criminal sanctions.

File-sharing in the limelight

The clash between American copyright holders and foreign OSPs is an important one, and one that is not likely to disappear soon. As a threshold matter, federal courts have been more willing to find jurisdiction for foreign OSPs with minimal connections to the United States. Further, for those OSPs that rely solely on the DMCA safe harbor as a defense, strict compliance with the technical terms will likely be required. One possible exception to this, and a current area of uncertainty in the law, is the repeat infringer policy.

While courts thus far have required very little of OSPs on the repeat infringer front, several providers have implemented policies of their own accord, perhaps sensing an opportunity to avoid lengthy and contentious litigation with right holders. Given the relatively low costs associated with compliance, and the very real prospect of infringement liability without it, compliance represents the best course of action for foreign OSPs. There are several accepted definitions for Web 2. See, e. RapidShare A.

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Youngtek Solutions Ltd. Iowa See United States v. Dotcom, No. Fraserside IP L. Hammy Media, Ltd.

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Columbia Pictures Indus. Fung, F. Louis Vuitton Malletier, S. Akanoc Solutions, Inc. Napster, Inc. Louis Vuitton , F. C , WL N. See Perfect 10, Inc. Note that the DMCA safe harbors only immunize OSPs from monetary relief and limited injunctive liability, and the provisions say nothing of potential trademark liability.

Cybernet Ventures, Inc. Landslide magazine is available online to members of the Section of Intellectual Property Law.

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Jurisdictional Issues It is important to note that compliance with a DMCA safe harbor is a defense to an infringement action. Vicarious liability is another means of holding someone liable for copyright infringement even when that person or party is not the one who did the infringing.

Copyright owners feared reduced value of syndication rights, lost sales and rentals of tapes of movies and videos, and lost revenues from commercials from fast-forwarding through ads. On the other hand, the VCR offered substantial benefits that would be reduced if makers were liable for copyright infringement from use of the record feature.

The DMCA was passed as a set of responses to the complicated copyright and other issues that came with the rise of the Internet.

Alain Strowel

The recording industry responded to internet piracy by legal actions against P2P file-sharing companies, alleging secondary liability for copyright infringement. In the Napster case, Napster argued that file sharing was just like the VCR and therefore constituted fair-use. Rather, if substantial noninfringing use was shown, the copyright owner would be required to show that the defendant had reasonable knowledge of specific infringing files.

The plaintiffs are music and movie industry copyright owners.

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In the District Court, the plaintiffs filed a complaint against Grokster, Streamcast, and Kazaa, alleging contributory and vicarious infringement. Many in the technology industry have argued that the bill is overbroad and would stifle innovation. Senators Leahy and Hatch invited members of the technology and music community to work together to arrive at a sensible balance between allowing new technologies to flourish while protecting the copyrights of musicians, but these negotiations fell apart.

Wendy Harman. Monday, October 11, Related Campaign:. On Artist Compensation. Up Front Policy Priorities for Comments of Arts Organizations on Net Neutrality. More immigration confusion as Italian band is denied entry to US. Subscribe to FMC Newsletters.