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

By Pessach, Guy | Vanderbilt Journal of Transnational Law, January 2007 | Go to article overview

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


ABSTRACT

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

I. INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Upgrade your membership to receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad‑free environment

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Upgrade your membership to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved in your active project from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Upgrade your membership to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.