By Hadifah Husna

The protection of intellectual property rights is challenged as the development of technologies has opened up various platforms for creations, distributions and exploitation of copyright works which also include the peer-to-peer (P2P) software. The widespread use of P2P software became widely known at the end of 1990s through the first P2P network, Napster which enabled the Internet users to search for any desired content in the medium of files that they wanted and transfer such files from one computer to another one without the need to have a separate server. However, despite the hopeful features that make it possible for a thousand terabytes of digitized information to rush through the P2P networks in a stable and affordable manner, there are legal implications arising out of the usage of this technology, particularly in the context of copyright infringement issues. Many copyright owners started to terrify about losing control over their works as there are clear potential that the network offers its users information that they believed to be common use while in fact such practice raised a question on the balance between the technological innovation and intellectual property rights, or in other words whether the appreciating the P2P software may or may not limit copyright protection. The discussion will also include the stance taken by the Malaysian judiciary on the matter at hand to understand how it approach legal challenges posed by P2P technology. 

It must first be understood that the liability of copyright infringement is not limited to the original infringer but may extend to the third parties in cases where the secondary liability applies. As in the suit filed by Warner Music Group (WMG) against a company known as Seeqpod, the former claimed that Seeqpod has committed ‘direct, contributory and vicarious infringement’ of WMG’s music by providing a search engine and players with the Napster strategy as it allows the users to listen to streaming MP3s without having to download all the songs. The build up of this search engine makes Seeqpod to be liable not only for making the on-demand music available in their site but also due to the fact that the company did not compensate the music label when in fact they are selling advertisement on the site benefitted from the music resources they offered. Say that a person who runs a café used this site to play music throughout the day, he is also liable under a secondary liability. This shows that the liability of copyright infringement may extend to the persons who encourage, assist and has benefitted from the infringing conduct done by the primary infringer; the first person whom directly involved in copying the copyright work. 

In dealing with the infringement liability as to the P2P software, the rules of secondary liability must be explored and applied to this matter. Generally, every country has its own rules to determine the extend of liability to the third party who ‘encourage, assist or benefit from another’s person either in tort or crime, and the same goes for copyright infringement liability. Third party here refers to the person who has not engaged in an act of infringement, but who is somehow connected with it. Sometimes, the third parties and their activities are referred to as ‘intermediary’‘service provider’‘accomplice’‘contributor’ or even ‘inciter’.  In P2P software, third party is those who developed the file-sharing networks which is required to connect the users and enable them to carry out transmission or copying activities. 

The US law takes on this is by applying the principle of contributory liabilityvicarious liability as well as the inducement liability where a person enjoying the service of P2P fall within these types of liability, he shall be imposed with secondary liability. For the first type of liability, it shall arise when the third party, having knowledge of the infringing activities has in fact induced or materially contributed to the conduct of another. Vicarious liability, on the other hand is imposed if the third party have the control over the act of infringer’s action and somehow received a financial benefit from the former’s conduct. Lastly, inducement liability, which recently being added following the judgement in Grokster’s case is an infringement liability that is imposed when the third party distribute a device with the aim to promote its use to infringe copyright. This type of liability is still being explored by the US courts as to the limits for the third party to be imposed with copyright liability. Meanwhile, in the Commonwealth countries, the principles in deciding whether or not a third party should be liable is mainly based on the ‘Authorization’ principle which is covered under both the statutory and common law. This principle has long been applied whereby it is unlawful for a person to ‘authorize’ another person to conduct an infringement of copyright. This is not limited to grant a person a license, but also include the act of permitting or treating an activity as an approved conduct. This was illustrated in CBS Records v Amstrad case whereby manufacturers and distributors of cassette duplicators were held to be liable for ‘facilitating’ and ‘give powers to infringe’ to others. The act did not give rise to ‘authorization’ in its literal sense but relying on broader interpretation, the suppliers can only give warning that the purchasers may only use the equipment if they have lawful permission to copy but they have no power to observe the purchasers’ usage over the equipment after the sale has been concluded. 

The Malaysian judiciary, on the issue of P2P software may cause to the increment of copyright infringement has strongly relied on the perspective of Commonwealth countries since there are not much local precedents but with reference to the Copyright Act 1987. Looking into what constitutes as infringement according to the Copyright Act 1987, there are four circumstances where the conduct should fall within an infringing activity which include (i) causing the unlawful reproduction of copyrighted material, (ii) communicating copyrighted material to the public and (iii) causing the communication of copyrighted material to the public and causing the performance of the copyrighted material to the public, (iv) causing the recording and/or reproduction of the whole or a substantial part of a broadcast. Apparently, there was no legal case specifically discussed on the liability of a party in the usage of P2P, thus no definite answer as to the extend of  infringement of copyright liability but the Malaysian judiciary will highly likely to refer to the views and perspective from other countries that have dealt with the issue. 

In essence, the remedy to the infringements that can be found is by firstly determining whether or not the service itself is deemed to make the primary infringer liable or the third party for its users’ infringements. It is undeniable that when a primary infringement is found, the court will imposed punishment based on statutory law but in cases of third party liability, the courts will usually imposed a filtering obligation works a remedy for such infringement through a permit of injunction. This ‘filtering’ will filter or block all infringing material or activities within the sites or materials with the users on its system even without finding the service provider liable for the direct infringement. What the law is trying to protect is the materials and rights of the original owners as if it were to do so, the court would have to go to a lengthy process such as imposing monitoring requirement, imposing liability to the service provider prior to allowing the service to be filtered and even go to the extent of violating one’s privacy. 


Alain Strowel, Allen N. Dixon, Michael Schlesinger, Vicky Hanley, Jane C. Ginsburg, Graeme W. Austin, Alexander Peukert, Robert Clark,Jerome H. Reichman, Graeme B. Dinwoodie and. (2009 ). Peer-to-Peer File Sharing and Secondary Liability in Copyright Law . Northampton : Edward Elgar Publishing Limited.

Bruno, A. (2008, January 23). Billboard.Biz. Retrieved from Music News :

CBS Songs Ltd. v Amstrad Consumer Electronics Plc , AC 1013 (Court of England 1988).

Congress, U. (1958 ). United States Code: Copyright Office, 17 U.S.C. §§ 201-216 (1958).

Dixon, A. N. (2009). Liability of users and third parties for. In A. Strowel, Peer-to-Peer File Sharing and Secondary Liability in Copyright Law (p. 342). Northampton: Edward Elgar Publishing Limited.

Intellectual Property Corporation of Malaysia, Copyright Act 1987. (1987 ).

Metro-Goldwyn-Mayer Studios Inc., v Grokster Ltd., No. 04-480, , 04-480 (US Supreme Court ).

MGM Studios, Inc. v. Grokster Ltd. , 2764,2770 (US Supreme Court 2005).

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