P2P is the most recent manifestation of how new technology challenges existing copyright law both in the US and Europe. Critically evaluate the extent to which copyright law has responded or ought to respond to the issues raised by such technological developments.
In the modern society today it has become increasingly easier to share files across the internet. The peer to peer (p2p) technology makes it convenient for this to be done and has proved to be a nightmare for protection. Although legislation has been enacted to accommodate such actions, the advancement of technology is bringing the legal system to a helpless stage.
The first classical legislation in respect of copyright law was enacted as early as 1710 with the introduction of the statute of Anne 1710. However, the technological advances have recognised the need to secure modern intellectual property that can be acquired without actually authorisation to do so.
Since the 1990’s, copyright has been recognised as an important aspect of which many rights have been introduced. The main issue is however, the advancement of technology in respect of the increasing sophistication of computer programs in combination with the complexity of the internet, which is constantly challenging copyright law. The internet has a means of operating as a dispensary to individuals all around the world to enable them to copy download and effectively overlook the legislation. This expresses the need for the adjustment of copyright guidelines so as to accommodate such developments.
Copyright law has been described as legislation enacted to protect an artist, publisher or any owner, against the unauthorised use of their work by means of duplicating, publishing, filming, broadcasting etc. The Copyright Designs and Patent Act 1988 (CDPA 1988) allows the owner or creator of anything to have sole control over in respect of its use and any advantages from it whatsoever. More specifically, four rights are guaranteed to the owner as such, they include rights to; make a replica of patented work, organise plagiaristic works supported on the initial work, share out copies of the work to the society and visibly execute the patented work. Additional legislation includes the Council Directive (EC) 2001/29 on Copyright and related rights in the information society and Regulation 2003/2498 on the Copyright and Related Rights Regulations
A problem however is in the internet where it is next to impossible to monitor every online activity that occurs with millions of people accessing it worldwide. There is no doubt that a positive legal framework is required so as to intercede and prohibit potential copyright law violators. The UK legislation no doubt, does have in force copyright laws so as provide civil liberties to patent ownership to individuals and protect their work. However, a key area in relation to the internet concerning copyright infringement is the file sharing which is enhanced by the internet infrastructure. Such sharing includes the dubbing and copying of music and is as hard and costly to govern as monitoring emails with digital articles attached to them. Further still, owners of such materials which are being distributed illegally, find it difficult to show the damage caused until there is high amount of reproduction of music clips etc.
The most important right under the CDPA 1988 which is granted to owners as such is the reproduction right. This prohibits anyone apart from the owner, from copying the work of the patent holder. The right specifically prohibits photocopying books, bootlegging computer codes or even interpreting a single section of a song to a completely new song. In addition, the right to allocation provides the owner or patent owner, the ability to be in control over the availability of their patented work to the community by means of sale, hire, rent or loan. Thus, the owner can prohibit the redistribution of copies of the work that they have protected.
A complicated issue in relation to copyright and patents however, is in the area of intellectual property and more specifically in the digital area whereby digital music, images or videos are allocated over the internet at no cost. Such media can easily be copied and allocated online. A sound patent is what would be held by an individual who has created a piece of work with sound. This would be infringed if any part of the sound is employed.
Nevertheless, an organisation namely The World Intellectual Property Organisation (WIPO) has been put in place so as to protect and in a sense, safeguard such work belonging to individuals. This organisation integrated a patent agreement which gives security to individuals against possible online intellectual property theft of their work. WIPO has treaties in place which make it illegal to take the copy protection from something which has been placed by an individual or further to promote any product which has been made to carry out the same duty.
In fact, the UK was able to incorporate legislation which implemented two of the WIPO treaties on the 28th October 1998 in the form of Digital Millennium Copyright Act 1998 (DMCA 1998). The act, also part of the U.S. constitution, makes it a criminal offence to create any technology, service or device which can be used to get around the work that has been protected by copyright (known more formally as the Digital Rights Management (DRM)) and further holds a person liable for circumventing an access control even if there is no direct infringement of copyright law. There are also further organisations which represent the recording industry worldwide; they include the International Federation of the Phonographic Industry (IFPI) and BPI.
Nevertheless, the advances of technology or more specifically the structures of communication with computers over the internet, have weighed down the legal fraternity in the area of intellectual property and copyright law. Evidently, there is a need of a ratified legal system which holds the ability and has the capacity to accommodate the rights of the public in the arising need of the digital age in this dynamic society.
There is no doubt that the authors, performers and recording firms should be granted open privileges of reproducing authentic online material. Intellectual property rights are of high importance in society, so as to protect the rights of the individuals whilst expressing boundaries and guidelines assisted by the application of technological advances. The establishment of such rights stretches back as far as the medieval times, in fact, the composition of the World Intellectual Property Organisation (WIPO) was a vital improvement to the security of intellectual property from 1967.
To copy or duplicate any work in the UK is an offence unless it is done for legitimate purposes and by legitimate means. In fact, the restriction extends to computer firms and programmers who prohibit the use of their programmes without their consent. Not surprisingly, the rate of technological advances is coinciding with the advancement of pirating organisations to make it difficult if not impossible to monitor any infringements as such. There is a need however for the concept of copyright to be designed to acknowledge the concept that authorship is created from historic works which in turn have to be accessed to enhance culture, art and scientific thoughts.
Copyright infringements in the modern day and age have increased considerably due to the developments of scientific technology. The legal system is adapting and developing to a stage so as to accompany the introduction of such technologies ranging from the phonograph, radio and photocopier to Video Cassette Recorders (VCR), Compact Discs (CD) and Digital Versatile Discs (DVD). All of the aforementioned have however, interfered in turn with intellectual property rights even though legal framework enables things like licences so as to reimburse an individual for the use of their property. The most important area in relation to intellectual property is the internet, where it has now shifted to be modelled within the grounds of the distributed work.
Patent laws have been deteriorating following the proceedings of p2p technology. The advances of technology have generally placed the legal system in a position where the legal structures that have been designed to protect digital patent material have lost importance due to them being costly. Legal security that is available for patent material has developed into a face up as p2p sharing minimises, if not eliminates the expenses of acquiring such patented material.
The p2p concept is a crucial and modern growing concept of internet communication which enhances the sharing process freely. It is employed by numerous people and includes the sharing of texts, software and audio files stored on their computers. The p2p is more favourable in comparison to file sharing globally over the internet as it lies beneath the internet communications model, which includes emailing and instant messaging applications. The birth of p2p networking was initially prompted by an application called Napster after which followed, Morpheus, Kazaa and Grokster which are used by millions of people today. The current p2p network includes links distributed systems for sharing data stored on distributed computers worldwide.
A distinction is drawn between p2p file allocations and internet applications as the former consist of networks which allocate data to incorporate a range of end user computers and the latter comprises of central computers to which they would be allocated (or more formally known as web servers). The key attribute of a p2p system is its complex technology which enables the sharing of numerous files amongst connected computers or systems. The data that is transferred between such users is not really automated in a sense that it is merely a matter of what the participants believe is worth sharing or not a matter of whether it is infringing copyright laws.
The leading application in the p2p industry is the Kazaa Media Desktop. The increasing volume of users signifies that the amount of pirated patented material which is distributed is inevitable. The file sharing network mainly concentrates on copyrighted songs, movie and games, all of which have made their way onto the p2p sharing network without authorisation as such.
A key concern in the area of law for p2p technology is its lack of ability to secure copyright law for the modern day technology. The p2p system has placed the legal system in a hole of unresolved queries. Programs as such include Napster as aforementioned, which was invented by Shawn Fenning and is a technology advancement which allowing users across the world to share songs by downloading them onto their hard drives from the network of other users.
Nevertheless, it is next to impossible to make a distinction between the acts as to the ones that have been carried out by legitimate means with an exemption as such the copyright law and those which are illegal. Further still, the law finds it hard if not impossible to confirm as to which of the products (software) have been created for research purposes. However, an individual can access authenticated digital works by means of such a coded program which overlooks the requirement of authentication. Thus, it is apparent that such programs are designed for the sole purpose of avoiding copyright laws.
Not surprisingly, the p2p network is creating increasing issues for the conventional revenue of the music and picture industries. The introduction of the Recording Industry Association of America (RIAA) and its involvement in the file to file sharing demonstrate some of the issues at hand. The use of file sharing is evident from the 5000 plus lawsuits enacted by the RIAA against perpetrators. The RIAA has been able to identify the individuals who are distributing patented music by acquiring sufficient proof and subsequently incorporating John Doe lawsuits against them. Additional programs executing the same expertise in a more anonymous way include BitTorent, Gnutella and eDonkey based networks. Although, programs now attempt to create a design so as to ensure anonymousness they have proved inefficient and subsequently not been used as much.
The range of complex issues in relation to p2p networking is demonstrated by a case against Alexander Hanff, the owner of BitTorrent.On Saturday 12th March 2005, Hanff was issued with a lawsuit by Paramount, Twentieth Century Fox, Universal City Studios and Warner Bros. He was held to have defied the legal system by aiding and assisting the public in downloading copyrighted films by the use of p2p technology through the Illegal BitTorrent Hub. In fact, as an extreme measure, the Motion Picture Association of America (MPAA) actually managed to pull down the majority of the BitTorrent hubs.
The complexity of the case of Hanff is primarily based on 3 specific facts. The first being that he was served with the lawsuit in England by the US studio and secondly, although he owns the DVDR-Core domain name and pays for the server, he does not actually administer the site as he leaves it to his friends to handle. The final significance of his case is his intention to be the first to fight the movies studios, thereby making him a one-off among BitTorrent hub owners. In the US the legality of p2p sharing allow the use of hubs and thus, Hanff’s argument was based on the fact that BitTorrent hubs should be under the same rules that protect the legality of p2p services in the US as the hubs are used merely as means of directing users to computers which have movies stored on them and as such, do not actually host movies on the hub. In this sense, Hanff suggests that the BitTorrent technology is of the same expertise as Google, Yahoo or Microsoft. Therefore it is evident that it is the users who are disobeying such protected movie patents and not BitTorrent. Further still, the use of BitTorrent technology by means of legitimate purposes including sharing individual files and public source software is far more then the use of the hubs for illegitimate purposes.
In the legal context, it is important to remember that although he is located in the UK, he would still be subject to the authority of the US federal court due to the fact of making use of the Internet Service Provider of the US to engage in BitTorrent activities. Overall, the disseminated nature of the internet complicates the issue in this scenario but the case confirms that the MPAA, just like the RIAA, has an intention to make an example out of just about anyone as demonstrated by its actions of sending an operative as far as the UK to serve papers to a man who shut down a possibly ‘legal’ site months before.
More recently, the IFPI and BPI as aforementioned were able to crack down an invite only music site called OiNK after a two year investigation with the aid of the police which involving tracking down the private BitTorrent tracker. The police were able to seize the servers which were based in Amsterdam and arrest a 24 year old man from the UK. The site was a primary source available worldwide for the distribution of pre-released music.
Copyright law is at a stage where it is considered to be between the social and economic arguments. It aims to secure the creativity of authors whilst at the same time enhancing the distribution of any knowledge to the wider public. The UK has managed to introduce copyright law so as to accommodate the interests of authors and the aspect of intellectual property by means of a constructive legal framework to have regard to technology advancements.
The individuals that commit patent crimes have been numerous as a result of the weak structure of penalties which are in place that do not seem to define with clarity, the significance of the harm caused on the musical industry by the simple sharing of MP3’s by illegitimate means. The violation of copyright patents in regards to the acquiring of MP3’s causes the music industry to lose out from the money that the violator would have otherwise used to actually buy the same MP3. Thus, the industries would be losing colossal amounts of money as a result of simple file downloading by illegitimate means. There are monetary punishments structured as a free for all restraint, which have been documented as inexplicably large amounts so as to scold individuals who allow the sharing of files with the knowledge that the same files will then be re-shared by other individuals.
The particular attribute of downloading as such streams down to an extensive damaging level which results in uncontrolled violation costing thousands and thousands under the patent law. Subsequently, the penalty for carrying out such an act and obtaining music in such a way, should be far greater then the cost of the music if they were to purchase it in a legitimate way. This is simply due to concept of the mentality that would be created as a result, with an individual simply deciding to violate the patent freely by downloading it initially and then simply paying the cost of the song once they are identified.
The numerous global networks have allowed information to be easily distributed over the internet to seriously hamper the effectiveness of copyright law as a result. The modern discovery of p2p network serves as a disruptive uniqueness in today’s society and subsequently has a perplexed effect on copyright law. The numerous amounts of information which are accessed worldwide through the networks makes policing to control protection hard if not impossible, as the flow of such information is in a type of free fall whereby the borderless nature of the internet prevents it from getting monitored.
Copyright Law and Intellectual property rights are confronted with many dilemmas, which need to be addressed with proper regulation measures that are internationally expressed to control intellectual fraud and foster the creation of any programs whilst serving as a bridge towards the restraint of particular arguments. This would only be possible following a gathering of the stakeholders and beneficiaries of the copyright safeguard including the scientist, jurists etc.
Previously, there was mention of the iPod created by Apple as an example of a technology advancement which can accommodate both legitimate and illegitimate use depending on the user’s intentions. However, the music industry is adamant to draw a distinction between successes as such like the iPod and p2p networks. This is due to the simple fact that the latter concerns namely the development of a business model which is designed for infringement.
Previously, the US supreme courts decision in the Betamax case expressed that the video copying device contained a significant amount of non-infringing uses to enable its existence as a legal product. In this context, the p2p software is argued to be used to send all types of files between users for legitimate purposes. The p2p system can evidently be seen to minimise distribution costs whilst providing a new system for dispensing music, photos and documents.
In fact, if the current p2p software that is made available worldwide, had the same attributes of Napster whereby the software acted in a centralised way, then surely the courts would have shut them down. However, the current p2p network doesn’t any centralised control over it software therefore the creators are unable to boot off users even if they intended to.
The introduction of Deep Packet Inspection (DPI) tools have gained considerable sophistication whereby they are now able to extract IP addresses, filenames and URL’s in combination with filtering out Bit Torrent traffic for over 800,000 users. The only issue is however, that the same problem arises in respect of determining which of the actions are legitimate and which aren’t. It also comes down to the issue of privacy whereby each UK resident would surely not be in a happy position knowing that their Internet Service Provider is thoroughly checking their internet traffic for copyright infringement.
There is no doubt that the UK, in combination with the legal alliance should consider a directive which is both within the purpose and span to tackle the issue. The legal control should be upheld in respect of the services which synchronise the rights of reproduction, public communication and distribution. It is also evident that there is a need of the promotion of legal protection for anti-pirating technology and risk management information. Further still, the dramatic pace at which society is advancing and developing demonstrates a need for constant review of the cyber laws.
The technological transformations make it crucial for the copyright law in respect of p2p sharing, to accommodate the fair application of such software for the free circulation of information. Most recently, a labour party politician and parliamentary undersecretary for innovation, universities and skills, Lord Triesman has threatened with legislation to resolve the issue of file sharing if the British Internet Service Providers don’t take steps themselves. He expressed concern in the way the ISP’s are handling the issue and suggested that implementing laws concerning a crackdown as such may be the only option. As it stands however, cracking down on such violators is not an easy task as described by a spokesperson to the BBC;
“Internet Service Providers are no more able to inspect and filter every single packet passing across their network than the Post Office is able to open every envelope.”
The aforementioned confirms that the advancement of technologies have brought numerous amount of problems in the legislation as far as copyright law is concerned. This expresses the requirement of increased support to compliment worldwide protection through the extension of the level of application of joint assemblies and their supremacy to have power over it. Subsequently, the framework of the copyright policy should be structured in a way so as to cover the global aspect with an initial objective of resolving this anomaly. The main aim would be to beat a tough profitable perspective of the protection and this can be achieved by executing contradictory components respectively.
To summarise, it is apparent that a legal framework is needed so as to look more closely at the relationship between an individual and his information, knowledge, culture or creativity. In the process, the drive will be motivated by both the mega access corporations that underpin this space in combination with the new online social networks and communities. The access corporations such as Google and Yahoo are designed in such way so as to increase their profits with the more access to content that they are able to provide to users. The future of copyright law entails a vibrant and challenging topic for action and discussion.
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