By Hadifah Husna
The protection of intellectual property rights faces challenges due to technological advancements that have created platforms for sharing and utilising copyrighted works, including peer-to-peer (P2P) software. The widespread use of P2P software became widely known at the end of the 1990s through the first P2P network, Napster, which enabled 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 without the need to have a separate server.1 However, despite the benefits that allow large amounts of data to flow through P2P networks efficiently, there are legal concerns regarding the use of this technology, especially concerning copyright infringement. Many copyright owners began to worry about losing control over their works because the network provides users with information, they thought was freely available, raising questions about the balance between technology and intellectual property rights, and whether embracing P2P software may restrict copyright protection. The discussion will also cover the Malaysian judiciary’s position on addressing legal challenges related to P2P technology.
It must first be understood that the liability for copyright infringement is not limited to the original infringer but may extend to third parties in cases where the secondary liability applies. In a lawsuit by Warner Music Group (WMG) against Seeqpod, WMG alleged that Seeqpod engaged in ‘direct, contributory, and vicarious infringement’ of WMG’s music.2 T This was due to Seeqpod providing a search engine and players using the Napster strategy, allowing users to stream MP3s without downloading the songs. The buildup of this search engine makes Seeqpod liable not only for making the on-demand music available on their site but also since the company did not compensate the music label when, in fact, they were selling advertisements on the site and benefiting 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 demonstrates that liability for copyright infringement can reach individuals who support, aid, or benefit from the actions of the primary infringer, who is the initial individual involved in copying the copyrighted 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. In general, each country has its own regulations to define the level of liability for third parties who support, aid, or benefit from another individual’s actions, whether in tort, crime, or copyright infringement. The third party here refers to the person who has not engaged in an act of infringement, but who is somehow connected with it. At times, third parties and their actions are labelled as ‘intermediaries,’ ‘service providers,’ ‘accomplices,’ ‘contributors,’ or even ‘inciters’ in the context of copyright infringement. In P2P software, third parties are those who developed the file-sharing networks that are required to connect the users and enable them to carry out transmission or copying activities.
US law takes on this by applying the principles of contributory liability, vicarious liability, and inducement liability. If a person enjoying the service of P2P falls 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 induced or materially contributed to another’s conduct. Vicarious liability, on the other hand, is imposed if the third party has control over the infringer’s action and somehow receives a financial benefit from the former’s conduct. Lastly, inducement liability, which was recently added following the judgement in Grokster’s case, is an infringement liability that is imposed when the third party distributes a device with the aim of promoting its use to infringe copyright.3 US courts are still examining the boundaries of imposing copyright liability on third parties in this type of scenario. Meanwhile, in the Commonwealth countries, the principles for deciding whether a third party should be liable are 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 ‘authorise’ another person to conduct an infringement of copyright. This is not limited to granting a person a license, but also includes the act of permitting or treating an activity as approved conduct. This was illustrated in CBS Records v Amstrad case4 whereby manufacturers and distributors of cassette duplicators were held to be liable for ‘facilitating’ and ‘giving powers to infringe’ on others. While the act did not directly authorise infringement in the literal sense, suppliers can only provide a warning that purchasers should use the equipment lawfully. However, they lack the authority to monitor purchasers’ usage after the sale.
The Malaysian judiciary, on the issue of whether P2P software may cause an increase in copyright infringement, has strongly relied on the perspective of Commonwealth countries since there are not many local precedents, but with reference to the Copyright Act 1987. Looking into what constitutes infringement according to the Copyright Act 1987,5 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, (iii) causing the communication of copyrighted material to the public and causing the performance of the copyrighted material to the public, and (iv) causing the recording and/or reproduction of the whole or a substantial part of a broadcast. Apparently, there was no legal case specifically discussing the liability of a party in the usage of P2P, so there is no definite answer as to the extent of infringement of copyright liability, but the Malaysian judiciary will highly likely refer to the views and perspectives of other countries that have dealt with the issue.
In essence, the remedy to the infringements that can be found is by first determining whether 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 impose punishment based on statutory law, but in cases of third-party liability, the courts will usually impose a filtering obligation as a remedy for such infringement through a permit of injunction.6 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 are the materials and rights of the original owners, as if it were to do so, the court would have to go through a lengthy process such as imposing monitoring requirements, imposing liability on the service provider prior to allowing the service to be filtered, and even going to the extent of violating one’s privacy.
Bibliography
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 : https://www.billboard.com/music/music-news/wmg-sues-music-search-site-seeqpod-1313874/
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).