Should Internet Service Providers be liable for the copyright infringements of their account holders using P2P and BitTorrent software?

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Should Internet Service Providers be liable for the copyright infringements of their account holders using P2P and BitTorrent software?





We live in a knowledge society that is shaped by the information revolution and advanced by communication technologies, with the internet being at the forefront of this evolution. Since its introduction, the internet has opened a wide range of opportunities for sharing digital content such as music, movies and television shows in a global arena. Much of this digital content distributed through the internet is protected by copyright. However the technological advancement of digital online media has seen the world’s internet users feast on an abundance of infringing content. This has resulted in untold billions of copyright violations. The ease of copying and distribution has altered social attitudes towards copyright works to the point where ignorance of copyright laws is widespread, and individuals justify breaking the law on the basis that ‘everyone else is doing it’. 

This essay focuses on the issues surrounding online copyright infringement, the impact it has on the entertainment industry and whether internet service providers (ISPs) should be held liable for the infringing acts of their customers. These issues are quite complex and controversial with regards to whom, and to what extent should be held liable for these infringements. There is unremitting debate on the need for major legislative reform, specifically with regards to ISPs becoming more proactive in the fight against online copyright infringements. There is a growing insistence from copyright holders for ISPs to steer away from the current passive-reactive role and move towards a more active-preventative system. Some countries have already implemented policies such as those recently employed in France and New Zealand a three-strike policy. here are several these policies, mainly, that ISPs should not have to play the role of legal gatekeepers of online copyright infringement.


The main legal issue that has arisen from file sharing technology is copyright holders’ loss of control over their exclusive rights to reproduce and communicate digital works.  technolog continually challenge  control over their creative material. Traditionally, the main means of copyright enforcement to directly  individual infringers and content providersHowever this has proven to be expensive, time consuming and ineffective, resulting in continuous copyright infringements, and the emergence of new advanced business models. These unsuccessful attempts to mitigate copyright infringement through traditional means has led rights’ holders to pursue legal action against third party ISPs. 

ISPs have played an important role in the development of the internet. Even as the internet evolves, ISPs largely remain the gateway through which end users access the vast flow of digital content travelling through cyberspace. They provide the ‘connectivity and access to infrastructure that allows the actual transmission of copyright material’. The question of whether an ISP, who works as an intermediary between the recipient of the copyright material and the disseminator of the same should be held liable for the copyright infringements of their account holders who use peer-to-peer (or person-to-person) (P2P) and file sharing technology is debatable. Legislative solutions implicating ISPs may provide a short-term solution to the P2P challenge, but advances in technology and content delivery mean that radically different approaches are desirable to ensure the continued relevance of copyright law as it applies to digital works. Without it, the world may continue to see a steep subjective devaluation of a great deal of professionally produced content, and that devaluation is not  for the longer term those with creative talent or their potential audiences. The call for copyright holders and ISPs to band together as a united front may be the solution to a problem that has been developing over the last few decades.


‘The internet is projected to have more than 200 million users, and the development of new technology creates additional incentive for copyright thieves to steal protected works.’ The detrimental impact of file sharing in the entertainment industry began with the rise of P2P technology. P2P technology involves the sharing of resources between computers by a direct exchange between those computers using the internet. In terms of file sharing, it enables users to connect to the hard drives of other users and to share files. Effectively, the sharing of files is no more than the ‘anonymous copying’ of files and this has significant implications for not only copyright law, but also for the creative artists to which the copyright content belongs to. The introduction of this technology has been very successful in allowing the transmission of large, bandwidth-intensive files (such as music and video) over the internet. Although there are a number of legitimate uses for P2P technology, such as data co-ordination, distributed computing, and lawful sharing of copyright and public domain materials, illegal file sharing dominates the use of P2P technology. 

The  impact of file sharing on copyright began with the rise of the P2P network Napster, which revolutionalised the consumption of music by allowing users to share digital music files.It contained a central directory which informed users as to what music was available from other users, although the files themselves were not stored centrally by Napster. meant that it On the basis of United States copyright law, Napster was found liable for contributory copyright infringement and was held vicariously liable for the direct breaches of its users. Napster was shut down in February 2001 after an injunction was granted to copyright holders.

en though the Napster model  brought down by the court decision, the void was quickly filled by what is known as the ‘decentralised’ second generation networks such as Grokster and KaZaA. Unlike Napster, these file sharing networks functioned without a centralised server, and this raised new problems for copyright law. The tricky question that was asked in the Grokster case was  n 2005, the courts handed down their judgement in favour of the record companies and against Grokster.

This however was not the death of on-line music piracy.

More recently, we have seen the emergence of the current third generation P2P file sharing software, which include the popular BitTorrent and The Pirate Bay. Both software are based on ‘anonymous’ P2P file sharing. The providers do not control a network or server, and do not directly provide connections between users. Instead, they facilitate sharing by providing users with a simple index of information about the location of infringing files stored elsewhere on the internet. The providers have no control over or specific knowledge of the activities of users, and are far removed from any copyright infringement that is committed. This makes the application of copyright laws to these providers exceptionally difficult.espite the tremendously disruptive nature of the third generation file sharing technology, the very architecture of these P2P networks makes it extremely hard for software suppliers, copyright owners or government officials to track the movement of digital copyright material as they pass from user to user. Whilst we have seen an increase in technological advancements surrounding P2P file-sharing technology, the impact it has on the entertainment industry and the attitudes towards file sharing is also of major concern.

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The overwhelming majority of files available for sharing on P2P networks are copyrighted works, such as digital files which include sound recordings, television shows, and motion pictures. The International Federation for the Phonographic Industry estimates that 95% of music downloads are unauthorised, and 60-80% of internet traffic transmitted through ISPs is comprised of the illegal file sharing of copyright material. It is estimated that in Australia around 2.8 million people, or 18% of the population illegally download music through file sharing every year. Additionally, a recent study ...

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