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File sharing is the practice of distributing or providing access to digital media, such as computer In Germany, file sharing is illegal and even one copyrighted file downloaded through BitTorrent can trigger € fines or more. The GEMA also.
Table of contents

• Illegal File Sharing
• A three-pronged approach
• Police2Peer | Partners & Agreements | Europol
• Police2Peer

This article examines these key areas in the music, film, TV, video-games and e-publishing industries in both the UK and the US. Developments in music piracy The music industry has typically borne the brunt of online piracy, because the smaller file sizes of songs make them easy to download and share. For a number of years, peer-to-peer p2p networks were the main source of file-sharing and piracy.

John Enser , a partner at Olswang in London, notes that "we are beginning to see a move away from p2p networks to things like locker services, such as RapidShare and Zshares websites". These websites, also known as cyber-lockers, enable large files of music and other media to be stored, and users can send and use links to retrieve the content. Cyber-lockers make it more difficult for copyright owners to track down where the infringing files are held.

Other developments include pirate websites moving to offshore locations like China, Ukraine or Russia to escape prosecution from Western and European laws. This phenomenon, known as 'bulletproof hosting' has become a rising trend in recent years, particularly since the successful Swedish prosecution of file-sharing website The Pirate Bay in see The Guardian, Internet pirates find 'bulletproof' havens for illegal file sharing, 5 January and see box, The Pirate Bay case. The movement of pirate websites to foreign jurisdictions cannot easily be tackled through litigation in those countries, so often a more nuanced response is required see box, International piracy solutions.

Back then, they were hobbyists and kids who thought this was a cool thing to do. Now you have adults who see infringement as a business model". New ways to share content are springing up every day". Legal remedies for music piracy in the UK Individual litigation Suing individuals for copyright infringement under the Copyright, Designs and Patents Act CDPA was one of the first legal solutions used by the UK music industry to combat piracy and illegal file-sharing.

In recent years, the BPI brought around cases against individual infringers. Simon Baggs, a partner at Wiggin LLP in London, comments that "it was a question of pursuing individual file-sharers and seeking undertakings that they would not infringe again, as well as seeking damages". According to Baggs, while this measure has worked to some extent in raising the profile of the problem, it is impractical for the record industry to pursue in the long term, given the number of people engaged in online infringement in this way: "The costs in pursuing every infringer through legal action would be vast.

Such actions are expensive and the litigation option is perhaps a blunt tool to use in respect of every infringement. Volume litigation involves copyright owners banding together, and going onto the file-sharing networks to discover the Internet Protocol IP addresses that are infringing copyright. The copyright holders will then seek a court order requiring the internet service providers ISPs to provide them with the personal details of those infringing customers.

The copyright owners will then typically contact those customers which can number in the thousands through lawyers, who warn them that they face potential court action unless they pay a large settlement sum. Allgrove says that this method of volume litigation is based on only a percentage of people who are targeted paying the fine, which means "the programme then often becomes self-funding". However, like individual litigation, this method has proved controversial with the media and public.

Particularly since the inception of the Digital Economy Act see below, Digital Economy Act , there have been fears that innocent households will be targeted and exploited for sums of money they cannot afford. It has also been argued that volume litigation has not actually reduced levels of infringement to any noticeable degree. The data protection issues surrounding the gathering of information on individual users are also unclear under the Data Protection Act DPA.

The DPA states that personal data about a subject cannot be processed without a person's consent, unless it falls into one of the exemptions. Targeting the pirate sites An alternative to suing individuals is to target the owners of the pirate sites that enable and encourage infringement to occur. As Enser says, "Rights-holders want to go after the industrial-strength users the people who are facilitating piracy. The challenge is that very few of the websites that facilitate piracy are based in the UK".

As a result, litigation needs to be brought locally. However, with websites based outside the EU, it can be difficult to litigate because of lax copyright enforcement in some jurisdictions. Some possible legal solutions arise in the Digital Economy Act and through other international responses see below, Digital Economy Act and see box, International piracy solutions. While the Act moves the law closer in line with technological developments and provides additional solutions to online copyright infringement, it has had its critics.

Notification and technical sanctions Under section 3 of the Act, once a copyright holder has gathered evidence of infringement, it can contact the ISP hosting the IP address of the infringer.

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The ISP must then:. Notify users that they have been infringing copyright. Retain information on the number of times the users have infringed and been subject to these notifications. Provide copyright owners with lists of those who have been accused of infringing at least three times in one year.

The Secretary of State, after considering a formal assessment of the situation by Ofcom, the UK broadcasting and media regulator, can order the ISPs to impose technical sanctions on the users who have been repeatedly warned about infringement, but who do not stop. Such sanctions include slowing down a user's internet connection or cutting it off completely. Before going ahead, the order from the Secretary of State must be scrutinised and approved through a day consultation period with both Houses of Parliament.

A number of other European countries have also debated introducing three-step notification provisions, similar in substance to what is contained in the Act see box, Three-strikes legislation around the world. Baggs thinks that the notification provisions will have a big effect "because the procedure will finally get ISPs communicating with their customers on this issue". He notes that a survey of online music consumers undertaken by Wiggin LLP in , in conjunction with Entertainment Media Research, showed that the majority of respondents said they would stop file-sharing if they received a letter from their ISP telling them they were infringing.

However, some fear that the monitoring and notification system could be inaccurate and result in innocent consumers being accused of infringement see The Guardian, 12 April , Digital Economy Act likely to increase households targeted for piracy. Some commentators are also concerned that the ultimate sanction of slowing down or cutting off access to the internet is a very draconian measure, particularly in a society that increasingly views access to the internet as a right, rather than a privilege.

Website blocking Section 17 of the Act enables the Secretary of State to make regulations allowing the courts to grant a website-blocking injunction for a website which has been, is being, or is likely to be used for or in connection with, infringing copyright. This can only be granted if the infringement is having a serious adverse effect on business or consumers, and if blocking the website is a proportionate means of dealing with the problem. Enser notes that Section 17 could be used to block access to websites that have moved abroad in order to escape prosecution in the English courts see box, International solutions to piracy.

This would be a particularly useful remedy for copyright owners. However, many ISPs are unhappy about section There have also been criticisms from ISPs and digital consumer groups that the provision is too wide and could lead to legitimate websites such as Google and Wikileaks being blocked see The Guardian, Internet provider defies digital bill, 8 April On the other hand, Baggs is concerned that section 17 was diluted at the last minute because of concerns that the provision had not been subject to enough debate.

A three-pronged approach

The dilution he refers to is the further process of consultation and new regulations that are required before an injunction can be granted under this provision. This may hinder attempts to deal with developments in piracy in years to come, but rights-owners may also look to existing legislation under the CDPA as a means of ensuring that future developments are tackled without needing further legislation," he comments.

Ofcom's draft code of practice Under the Act, Ofcom must draft a code of practice code to deal with the initial obligations of the ISPs in notifying users of copyright infringement. In late May , Ofcom published a draft code of practice on the process of notification, which is open for consultation until 30 July see Ofcom, Draft code of practice to reduce online copyright infringement, 28 May The draft code deals with how and when ISPs are expected to notify users who have been accused of copyright infringement.

The code sets out what information and evidence copyright holders must gather and give to the ISPs in a copyright infringement report CIR before the ISPs can get in touch with the infringing user. The code also provides details of the three-step notification process: after the ISP has sent three letters to the infringing user, the user's details will be added to a list of serial copyright infringers.

The list remains anonymous until the copyright holder applies for a court order to get the details of those on the infringement list, in order to take legal action against them. The code also sets out an appeals procedure for users accused of copyright infringement. Ofcom will also be consulting with stakeholders on how to enforce the code, how to deal with disputes, and how to share the costs between ISPs and copyright holders.

The aim is for the code to be implemented by early January Further reactions to the Act ISPs have voiced their concern that the Act and code are too bureaucratic, costly and burdensome to fulfil. There are also concerns that the cost of the monitoring, notification and appeals process will be passed onto consumers. The government set up a consultation on the costs-sharing issues under the Act see PLC Legal update, Government consults on costs-sharing under Digital Economy Bill online copyright infringement notification obligations.

The Open Rights Group, a digital consumer rights group, is particularly concerned that consumers will end up paying significantly more towards the monitoring and notification system, as well as having to pay a fee to appeal against incorrect notifications see Open Rights Group, Response to the consultation on cost sharing. Some technical issues have still not been addressed under the Act, and could be used as loopholes by infringers.

For example, infringers who frequently change their ISP could prove difficult to pursue. Others are concerned about the length of time that will pass before the Act and code are fully implemented, and before ISPs are ordered to use technical measures against their users for persistent file-sharing, as this could add an element of uncertainty to the effectiveness of the Act. The time delay may enable infringers to seek out alternative methods of getting content for free, or to use new technology such as anonymisers, which would make it difficult for their IP addresses to be identified.

Another element of ambiguity is the fact that the new UK coalition government's potential plans for the Act are still unclear, so there could still be changes made in the future. It remains to be seen whether the Act will be the powerful measure that copyright owners had been hoping for. Legal remedies for music piracy in the US Individual and volume litigation As in the UK, the US music industry's original means of tackling piracy was to litigate against infringing individuals. Volume litigation has also decreased in favour of focusing on facilitators. For example, in late December the Recording Industry Association of America RIAA announced, after a long and negatively received litigation campaign against individuals, that it would stop the practice of volume litigation see Wall Street Journal, Music industry to abandon mass suits, 19 December Website litigation According to Slotnick , "the methods of dealing with piracy and illegal file-sharing have become more sophisticated".

There are companies that provide services to copyright owners to track any online infringements of their copyright. The companies provide statistical models and evidence, "so that when the inevitable happens, which seems to be a lawsuit, the copyright owners are armed with better and more sophisticated information to explain to a court why it is a copyright infringement that is taking place," says Slotnick. However, while litigation is the most popular avenue for copyright holders to enforce their right, the success of cases brought has been mixed.

LimeWire was found to have induced, encouraged and assisted this copyright infringement. Thorland comments that although this was a big victory for the US music industry, LimeWire was a traditional p2p site, whereas a lot of the new cyber-locker sites which allow users to store or upload content might be more difficult to litigate against, as it can be harder to locate where the infringing files originate from. Veoh, an online video service, was sued by the Universal Music Group UMG for copyright infringement of music and video content that had been uploaded onto its site.

In a controversial decision, the federal court ruled that Veoh was protected by the 'safe harbor' provision in section c of the Digital Millennium Copyright Act DMCA see Wired, Online video-sharing sites score copyright victory, 6 January The 'safe harbor' protection states that a website will not be liable for copyright infringement if all of the following apply:.

The material is placed on it by another person or user. The website does not know that the material on its site is infringing material. Delaney notes that the scope of the safe harbor provisions, as applied to emerging internet technologies and business models, remains unclear, as such provisions were drafted over a decade ago, when the internet was still in its infancy.

Thorland agrees, and states that the Veoh case was "a pretty big loss for the music industry. Courts are setting a very difficult standard, where copyright owners have to prove that they waved a red flag that should have put those sites on notice of infringement".