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

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THESIS: Should Internet Service Providers be liable for the copyright infringements of their account holders using P2P and BitTorrent software? FREE FOR ALL: COPYRIGHT & ISP LIABILITY IN A MODERN TECHNOLOGICAL WORLD I INTRODUCTION 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.1 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.2 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.3 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'.4 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.5 Some countries have already implemented policies such as those recently employed in France and New Zealand which involve a three-strike policy. There are however several opposing views to these policies, mainly, that ISPs should not have to play the role of legal gatekeepers of online copyright infringement. ...read more.


Termination is a drastic step and is arguably disproportionate. It is seen to limit freedom of expression by removing a subscribers ability to search and receive data via the internet.58 In addition to this, not only does it cut off access for the infringer, but for the whole household, to something that is fundamental - a link to the world, the means by which Australians conduct their homework, banking, book their holidays and run their businesses.59 Access to the internet is a valuable service. It should not be removed where it has not demonstrably caused significant economic damage to anyone.60 Moreover, termination may not even have the deterrent effect on infringement that copyright holders desire. What is to stop an infringer who has had their internet connection terminated using publicly accessible wireless internet connections to continue their infringing escapades? In addition, there are a number of alternatives that could be enforced over termination. An example of this could be the implementation of bandwidth throttling61 by ISPs. This would enable ISPs to significantly reduce the speed of the subscribers connection, restricting the ability of high speed downloads.62 These challenges for implementing such policies need to be seriously considered by right's' holders. Copyright holders may need to focus on alternative solutions to infringement based on commercial innovations of viable and attractive legal alternatives to file sharing.63 VII ALTERNATIVE MEASURES FOR PROMOTING COPYRIGHT The future of copyright protection lies with the creation of new distributional structures that do not limit the development of potentially useful technologies. 'If a robust means of compensating and incentivising creative production can be attached to P2P file sharing technologies, then as a distributional channel, P2P is more than capable of satisfying the goal of access to creative works.'64 The need for copyright owners, particularly in the music, film and television industry, to provide a means for consumers to access and download content easily and legitimately has been a debate for a number of years. ...read more.


52 The RIAA have been responsible for over 35,000 lawsuits against P2P file sharers. 53 Digital Millennium Copyright Act 1988. 54 J Ginsburg, and S Ricketson, 'Separating the Sony Sheep from the Grokster Goats: Reckoning the Future Business Plans of Copyright-Dependent Technology Entrepreneurs' (2008) 19(1) Australian Intellectual Property Journal, 121. 55 Copyright Act 1968 (Cth). 56 Australian Government: Attorney-General's Department, 'Revising the Scope of the Copyright 'Safe Harbour Scheme' and the Process of Seeking ISP Subscriber Details in Copyright Infringement Matters' (October 2011) Consultation Paper <http://www.cnet.com.au/story_media/339324398/unedited.pdf> at 7 January 2012, 3. 57 J Fairbairn, and T Webb, Australia: Users, not ISPs, liable for copyright infringement after iiNet decision (9 February 2010) <http://www.claytonutz.com/publications/news/201002/04/users_not_isps_liable_for_copyright_infringement_after_iinet_decision.page> at 4 December 2011. 58 Harrop, above n 4, 56. 59 D Brennan and K Weatherall, above n 13, 11. 60 Harrop, above n 4, 56. 61 Bandwidth throttling is a method of ensuring a bandwidth intensive device, such as a server, will limit ("throttle") the quantity of data it transmits and/or accepts within a specified period of time. 62 UK Department for Media, Culture and Sport, Digital Britain Final Report, (June 2009) <http://www.culture.gov.uk/images/publications/digital_britain_finalreportjun09.pdf> accessed 18/6/09, at 112. Internet service providers in other jurisdictions have used these techniques to reduce P2P traffic during peak downloading hours. See N Anderson, "How Canadian ISPs Throttle The Internet", Ars Technica (21 January 2009) <http://arstechnica.com/business/news/2009/01/how-canadian-isps- throttle-the-internet.ars> accessed 22/9/09 in M Harrop, above n 4, 56. 63 Harrop, above n 4, 61. 64 Ibid. 65 Digital music revenues expanded by approximately 6% globally in 2010, increasing to around $3.7 billion. See International Federation of the Phonographic Industry, 'IFPI Digital Music Report 2011' (2011) <http://www.ifpi.org/content/section_resources/dmr2011.html> at 7 January 2011. 66 CCH Intelliconnect, ISP did not authorise copyright infringement by its users (25 February 2010) <http://intelliconnect.wkasiapacific.com.ezproxy.scu.edu.au/scion/secure/index.jsp#page[6]> at 30 November 2011. 67 Harrop, above n 4, 62. 68 Harrop, above n 4, 68. 69 Simpson, above n 29, 304. 70 Harrop, above n 4, 69. 71 Simpson, above n 29, 282. 72 M Napthali, above n 34, 9. 73 Harrop, above n 4, 70. 74 Ibid, 66. ?? ?? ?? ?? 1 Student I.D.: 21707188 ...read more.

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