Online Piracy. Justice found between protection of infringers' privacy and enforcement of producers' copyrights

In a P2P network, all users are equal peer nodes. They are both server and client. They can perform download and upload simultaneously. Once a search is performed, a list of available peers will be sent to the user. A ‘multi-point download’ is performed if there is more than one peer. Users download small bits of the file from different peers, which enables efficient download. The transmission of data is set up between peers without a central server (Peer-to-Peer versus a Client-Server, 2000).

IP Trace Back

Another reason people use P2P communication is because their true identity is hidden. The only identity online is their Internet Protocol (IP) address. Yet, infringers can still be tracked down through IP trace back. ISPs assign an IP address to their subscribers whenever they connect to the Internet. The IP address assigned to the same user may be different at different time (‘dynamic IP address’) or the same at all time (‘static IP address’). So ISPs will keep track of the connection records with the personal data of user like his name and home address as well as the time. It is possible for ISP to track an IP address at a specific time and find out who he is (What is an IP Address, n.d.).

Legal Aspect

Norwich Pharmacal relief

To reveal the uploaders’ true identities, Ps asked Ds to perform IP trace back. Ps did so by seeking Norwich Pharmacal relief against Ds. Norwich Pharmacal relief is applicable when innocent parties (Ds) are involved in the tortious or wrongful activities of others (the 22 uploaders), thus facilitating the continuation of such activities, justice may require the innocent persons to disclose full information of the wrongdoers in order to assist the victims (Ps).

The court granted the relief because the judge found that the subscribers of Ds violated 3 sections under the Copyright Ordinance. Since they infringed Ps’ copyright and Ds were innocently involved in the wrongful activities of the subscribers as their ISPs, Ps had the right to get information of the uploaders from Ds. It is just and convenient to do so as there is no other practical sources of the data other than Ds. Refusing the grant of the relief would affect Ps’ business due to the online infringement and would encourage more people to infringe copyright works.

Data Protection Principles

Ds argued that the disclosure of subscribers’ name contradicted the Data Protection Principle (DPP) 3 under the Personal Data (Privacy) Ordinance. Yet, the personal data of uploaders can be exempted from the provisions of DPP 3 under section 58 (1)(d) and 58 (2) of the Personal Data (Privacy) Ordinance as the purpose of the use of personal data by Ps is to prevent, to preclude or to remedy the copyright infringement of the data subjects and the application of DPP 3 would worsen the infringement.

Ethical Aspect

While downloading and uploading music infringe other’s copyrights, many people view it ethical to share music through P2P online (Cosgrove-Mather, 2009). Users justify their copyright infringement mainly by two reasons. First, music should be free but not to sell. Music companies and artists can still make profits in concerts and advertisement based on reputations brought by online music sharing. Second, P2P users think they have consumer rights to choose only the songs they like but not to buy all songs in a CD where there are some songs they dislike. They alleged that music companies earned enough revenue in the past and they set exorbitantly high price for CDs. (Shang, Chen and Chen, 2005).

Yet, what most people think is right may not be ethical. It is unethical to upload or download copyrighted materials. Music can’t be free because not only companies and artists but also factory workers, songwriters, etc. whose efforts behind each CD deserve to be paid just like others would get paid in their jobs. The music industry’s revenues have plunged (Figure 1) and the unemployment rate of the industry has soared (Figure 2) since the arrival of Napster, the first generation of P2P (Siwek, 2007). Instead, most people share files in P2P simply because they are less likely to be caught comparing with stealing a CD from a shop (Logsdon et al., 1994). However, the ugly truth is that uploaders aid and abet downloaders to infringe others’ copyright while downloaders deprive copyright owners of substantially their deserved gains.

(Figure 1)

(Figure 2)

People should never attempt uploading files onto P2P as it is illegal and unethical. Uploaders won’t get money when sharing files online. While it is not beneficial to them, it is detrimental to many people like music companies, artists and composers.

Since downloading pirated files is only a civil wrong in Hong Kong so more people would download than upload illegal files. However, if they put themselves into the victims’ shoes, they should realize it is unethical. They should limit or even avoid downloading copyrighted files. Instead, they can listen to music through the radio and borrow movies and books from shops, library and friends.

Conclusion

This case signifies 3 points. Uploaders and downloaders on P2P program are not really anonymous. They can be tracked down and be sued. Courts would intervene to do justice by striking a balance between victims’ loss from copyright infringement and protection of personal data. Last but not least, people should not attempt upload or downloading copyrighted files since it is unethical, even though they may not be caught easily.

References

Cinepoly Records Co Ltd & Othersv Hong Kong Broadband Network Ltd & Others

      [2006] HKEC 1666 Retrived December 4, 2012 from http://login.westlaw.com.hk.eproxy1.lib.hku.hk/maf/wlhk/app/document?&src=rl&srguid=ia744c0970000013b7a275c90dfb7b19c&docguid=IF201DEE5D1C04820984846BD51BB5AD0&hitguid=IF201DEE5D1C04820984846BD51BB5AD0&spos=1&epos=1&td=3&crumb-action=append&context=3

Cosgrove-MatherBootie. (2009年2月11日). Poll: Young Say File Sharing OK. Retrieved December 4, 2012 from

Losdon, J. M., J. K. Thompson and R. A. Reid. (1994). Software Piracy: Is it related to level of moral judgment? Journal of Business Ethics, 13(11), 849-857.

Shang R.A., Chen Y. C. and Chen P. C. (2005). Why Do People Share Music Files in the P2P Environment:. Proceedings of the Fifth International Conference on Electronic Business, 392-399.

Peer-to-Peer versus a Client-Server. (2000). Retrieved December 4, 2012, from http://www.dewassoc.com/support/networking/serverpeer.htm

What is an IP Address. (n.d.). Retrieved December 4,2012, from http://www.myiplocation.org/ip-address/what-is-ip-address.html

WinMX. (n.d. ). Retrieved December 4,2012, from http://en.wikipedia.org/wiki/Winmx

U.S. : Institute for Policy Innovation (2007). The True Cost of Sound Recording Piracy to the U.S. Economy. Retrieved from http://www.ipi.org/ipi_issues/detail/the-true-cost-of-sound-recording-piracy-to-the-us-economy

---