An International-Comparative Perspective on Peer-to-Peer File-Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations' Questions
Pessach, Guy, Vanderbilt Journal of Transnational Law
In the last decade, the phenomenon of peer-to-peer file-sharing and its various legal aspects have been dealt with extensively by legal scholarship. The purpose of this Article is to take a closer inspection of several particular legal aspects that are related to peer-to-peer file-sharing as a comparative, social, economic, and cultural phenomenon. The Article begins by providing critical comparative analysis of distinct paradigms that different legal systems have offered regarding the question of third party liability for copyright infringements that occur through peer-to-peer file-sharing platforms. The Article then presents three focal policy considerations that should serve as copyright law's compass in the context of peer-to-peer file-sharing: (a) adopting a requirement of compliance between the legal liability of third parties and copyright law's exemptions and limitations regime; (b) striking a socially desired allocation of risk between positive and negative externalities that peer-to-peer file-sharing platforms tend to generate; (c) understanding the unique distributional concerns that are raised by legal regulation of peer-to-peer file-sharing platforms, especially when taking into account the nature of such platforms as a novel emerging speech resource that society has to decide upon its allocation. The last part of the Article focuses on some of the next generation legal questions that peer-to-peer networks are already beginning to give rise to, including the legal liability of internet service providers for managing peer-to-peer traffic through active caching and routing applications.
TABLE OF CONTENTS I. INTRODUCTION II. THE METRO-GOLDWYN-MAYER AND UNIVERSAL MUSIC AUSTRALIA DECISIONS III. THE PRIMARY LIABILITY OF END-USERS, STATUTORY LICENSEES, AND LEVY SCHEMES A. The Primary Liability of End-Users B. Statutory Compulsory Licenses and Levy Schemes--Lessons from the Canadian Experience IV. ADJUSTING A REQUIREMENT OF COMPLIANCE BETWEEN THIRD PARTY LIABILITY REGIMES AND COPYRIGHT LAW'S EXEMPTIONS AND LIMITATIONS V. PEER-TO-PEER FILE-SHARING: ALLOCATING THE RISK BETWEEN COMPETING INTERESTS AND POSITIVE AND NEGATIVE EXTERNALITIES VI. PEER-TO-PEER FILE-SHARING PLATFORMS AS A NEW EMERGING SPEECH RESOURCE: DISTRIBUTIVE CONCERNS VII. NEXT GENERATION QUESTIONS: ISPs' LIABILITY FOR MANAGING PEER-TO-PEER TRAFFIC VIII. SUMMARY
After a long wait, the phenomenon of peer-to-peer file-sharing has recently been addressed by a number of high courts around the globe: the U.S. Supreme Court decision in Metro-Goldwyn-Mayer Studios Inc v. Grokster Ltd.; (1) the federal court of Australia's decision in Universal Music Australia Pty Ltd. v. Sharman License Holdings Ltd.; (2) and two Canadian decisions, one of which is a decision of the Canadian Supreme Court that also includes several important statements with implications on the legality of file-sharing activities and the scope of third party liability in such circumstances. (3)
The purpose of this Article is twofold. The Article begins by providing a critical comparative analysis of these decisions and the distinct paradigms that different legal systems have offered regarding the question of third party liability for copyright infringements that occur through peer-to-peer file-sharing platforms. The Article then turns to develop several novel insights regarding the policy considerations that should serve as copyright law's compass in the context of peer-to-peer file-sharing and, more specifically, in the context of some of the next generation of legal questions that peer-to-peer platforms are already beginning to give rise to.
Parts II and III include an overall critical examination of recent judicial developments regarding third party liability for copyright infringements that take place through peer-to-peer file-sharing platforms. …