www.jeremydebeer.ca

 

 

The lesson explores some of the issues that arise in respect of designers and/or operators of p2p networks that link people directly or indirectly to infringing content. We'll talk about the evolution of the music industries' strategy to combat internet piracy, from going after content hosts to connectivity providers to search engines, and from statutory prohibitions to civil actions to criminal prosecutions.

 

There's really one must-read case for this week, though there are a whole bunch of links you can surf to dig deeper. The must read is MGM Studios v. Grokster (and here's an archive of many case-related documents from the EFF). In addition to that case, though, I want to talk about the lawsuits against YouTube. To prepare for our discussion, you could skim parts of my article on "Global Trends in Online Copyright Enforcement: A Non-Neutral Role for Network Intermediaries?"

 

Upfront, what's the difference between the p2p providers and social networks? Tim Wu explains that if the net were a red light district, Napster would be the pimp while YouTube is the hotel. That's because of section 512 of the DMCA and analogous safe harbours in most jurisdictions worldwide.

I guess we'll start our main discussion "way back" in the late 90s with the start of the Naspter litigation:, the centrepiece of which is A&M Records, Inc. v. Napster, Inc.. Next came In re Aimster Litigation, which wasn't really all that surprising in light of the ruling in Napster.

 

A more interesting issue was whether decentralized networks could be held liable just like centralized networks could. This was exactly the issue in MGM Studios v. Grokster. For a period of time the game of whack-a-mole was moving quickly it was nearly impossible to keep up. The RIAA sued Limewire. Limewire counterclaimed, lost that battle, and eventually settled the case. Meanwhile, as Sharman (Kazaa) and Grokster settled by promising to go legit, a California judge granted summary judgment against Streamcast (Morpheus) for "inducing infringement" à la the SCOTUS ruling of a few months prior.

 

This is whole p2p network debate is a hot topic around the world. The Dutch have adopted a position quite different from the Americans in the 2002 case of BUMA & STERMA v. KaZaA.The Aussies are on about this also. The big case down under also involved Kazaa, which in fact had relocated from the Netherlands to the South Pacific island haven of Vanuatu: Universal Music Australia v. Sharman License Holdings Ltd..

There are actually some wonderful papers written recently comparing the legal situation in different jurisdictions. See, for example, Graeme W. Austin, "Importing Kazaa - Exporting Grokster", (2006) 22 Santa Clara Comp. & High Tech. J. 577, and Jane C. Ginsburg & Sam Ricketson, "Inducers and Authorisers: A Comparison of the US Supreme Court's Grokster Decision and the Australian Federal Court's KaZaa Ruling" (2006) 11:1 Media & Arts Law Review. If you wish, compare the Australian law for yourself by looking at Copyright Act 1968 (Cth.), ss. 101, 112E.

 

There hasn't yet been a decision on a case like this in Canada (yet!) but Michael Geist explains what might have happened if Kazaaa got sued here. The Canadian Recording Industry Association has, however, threatened bittorrent trackers like Demonoid, and even shut them down. And there is an ongoing dispute before Canadian courts in response to a preemptive strike by isoHunt, which was trying to get a BC court to declare its activities legal, and a claim by the recording industry arguing the opposite. IsoHunt is now trying in its latest pleadings to turn this into a battle between copyright and people's freedom of expression, which is going to be, well, let's just say a tough one to win. Interestingly, IsoHunt had already been sued and shut down in the United States.

 

For a great analysis of whether or not secondary liability is a good idea, the must-read piece is Mark A. Lemley and R.Anthony Reese, "Reducing Digital Copyright Infringement Without Restricting Innovation" (2004) 56 Stanford L. Rev. 101. That paper is also useful for what it says about levies and alternative compensation models (which are also key topics in this course) so it's definitely worth browsing through.

 

Of course, somewhere during this lesson, we'll have to talk about the move toward a "graduated response" system in France and other countries. This fits in with a discussion of the United States' notice and takedown system, as well as Canada's about-to-be-enacted notice and notice regime in Bill C-11.

 

Speaking of takedowns in the US, that provides a perfect segue into two issues. First, takedowns of videos from sites like YouTube. On this point, the big case is Viacom v. YouTube, in which Google has won round 1, on the basis of the precedent laid down in Universal v. Veoh. Even though Veoh won the legal case, it lost the war, being forced to shut down because it could no longer defend itself against Universal's relentless assault. Similarly, Viacom has appealed the case it lost against Google, and the matter isn't settled yet. Generally, we've already talked about takedowns orders, but I'd like to talk about one more recent example -- the takedown of a video promoting file sharing site MegaUpload.

 

THAT brings us right into the trend toward prosecuting people who operate file sharing sites -- like MegaUpload's Kim DotCom -- under the criminal law, to try to chill behaviour that civil lawsuits seem not to have done effectively. DotCom wasn't the first victim of the copyright criminal law ... the operators of the Pirate Bay suffered this fate in Sweden several years ago.

 

And the MegaUpload saga, finally, allows to talk about another kind of takedowns ... the takedown of an entire domain of a website alleged of facilitating copyright infringmenet. Wow. Serious stuff. Even Google has gotten involved, coming to the defence of MegaUpload copycat site Hotfile, which is embroiled in a lawsuit brought by the MPAA.