Legal aspects of file sharing

File sharing is the practice of distributing or providing access to digital media, such as computer programs, multimedia (audios, photos and/or videos), program files, documents or electronic books/magazines. It involves various legal aspects as it is often used to exchange data that is copyrighted or licensed.

File hosting and sharing

File hosting services may be used as a means to distribute or share files without consent of the copyright holder. In such cases one individual uploads a file to a file hosting service, which others may download. Legal history is documented in case law.

For example, in the case of Swiss-German file hosting service RapidShare, in 2010 the US government's congressional international anti- infringement caucus declared the site a "notorious illegal site", claiming that the site was "overwhelmingly used for the global exchange of illegal movies, music and other copyrighted works". But in the legal case ''Atari Europe S.A.S.U. v. Rapidshare AG'' in Germany (Legal case: OLG Düsseldorf, Judgement of 22 March 2010, Az I-20 U 166/09 dated 22 March 2010) the Düsseldorf higher regional court examined claims related to alleged infringing activity and reached the conclusion on appeal that "most people utilize RapidShare for legal use cases" and that to assume otherwise was equivalent to inviting "a general suspicion against shared hosting services and their users which is not justified". The court also observed that the site removes copyrighted material when asked, does not provide search facilities for illegal material, noted previous cases siding with RapidShare, and after analysis the court concluded that the plaintiff's proposals for more strictly preventing sharing of copyrighted material – submitted as examples of anti-file sharing measures RapidShare might have adopted – were found to be "unreasonable or pointless".Legal case: OLG Dusseldorf, Judgement of 22 March 2010, Az I-20 U 166/09 dated 22 March 2010.

In January 2012 the United States Department of Justice seized and shut down the file hosting site Megaupload.com and commenced criminal cases against its owners and others. Their indictment concluded that Megaupload differed from other online file storage businesses, suggesting a number of design features of its operating model as being evidence showing a criminal intent and venture.Department of Justice indictment, on Wall Street Journal's website
- see sections 7 - 14.

Jurisdictions

Australia

A secondary liability case in Australia, under Australian law, was

' 005FCA 1242 (5 September 2005). In that case, the Court determined that the Kazaa file sharing system had "authorized" copyright infringement. The claim for damages was subsequently settled out of court.

In the case of AFACT v iiNet which was fought out in the Federal Court, an internet service provider was found not to be liable for the copyright infringement of its users. The case did not, however, create a clear precedent that Australian ISPs could never be held liable for the copyright infringement of their users by virtue of providing an internet connection. AFACT and other major Australian copyright holders have stated their intention to appeal the case, or pursue the matter by lobbying the government to change the Australian law.

Canada

The Copyright Modernization Act was passed in 2012, and came into effect on 2 January 2015. It provides for statutory damages for cases of non-commercial infringement between $100 and $5 000 and damages for commercial infringement from $500 to $20 000.

China

The People's Republic of China is known for having one of the most comprehensive and extensive approaches to observing web activity and censoring information in the world. Popular social networking sites such as Twitter and Facebook cannot be accessed via direct connection by its citizens. Mainland China requires sites that share video files to have permits and be controlled by the state or owned by state. These permits last for three years and will need renewal after that time period. Web sites that violate any rules will be subject to a 5-year ban from providing videos online. One of the country's most used file sharing programs, BTChina got shut down in December 2009. It was shut down by the State Administration of Radio Film and Television for not obtaining a license to legally distribute media such as audio and video files. Alexa, a company that monitors web traffic, claims that BTChina had 80,000 daily users. Being one of the primary file sharing websites for Chinese citizens, this shutdown affected the lives of many internet users in China. China has an online population of 222.4 million people and 65.8% are said to participate in some form of file-sharing on websites.

European Union

On 5 June 2014, the Court of Justice of the European Union (CJEU) ruled that making temporary copies on the user's screen or in the user's cache is not, in itself, illegal. The ruling relates to the British Meltwater case settled on that day.

The judgement of the court states: "Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet 'cache' of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders."

The Boy Genius Report weblog noted that "As long as an Internet user is streaming copyrighted content online ... it’s legal for the user, who isn’t willfully icmaking a copy of said content. If the user only views it directly through a web browser, streaming it from a website that hosts it, he or she is apparently doing nothing wrong."

In November 2009, the European Parliament voted on changes to the Telecoms Package. With regard to file-sharing, MEPs agreed to compromise between protecting copyright and protecting user's rights. A European Parliament statement reads "A user's internet access may be restricted, if necessary and proportionate, only after a fair and impartial procedure including the user's right to be heard." EU members were given until May 2011 to implement these changes into their own laws.

Graduated response

In response to copyright violations using peer-to-peer file sharing or BitTorrent the content industry has developed what is known as a graduated response, or '' three strikes system''. Consumers who do not adhere to repeated complaints on copyright infringement, risk losing access to the internet. The content industry has thought to gain the co-operation of internet service providers (ISPs), asking them to provide subscriber information for IP addresses identified by the content industry as engaged in copyright violations. Consumer rights groups have argued that this approach denies consumers the right to due process and the right to privacy. The European Parliament passed a non-binding resolution in April 2008 admonishing laws that would require ISPs to disconnect their users and would prevent individuals from acquiring access to broadband.

In a number of European countries attempts to implement a graduated response have led to court cases to establish under which circumstances an ISP may provide subscriber data to the content industry. In order to pursue those that download copyrighted material the individual committing the infringing must be identified. Internet users are often only identifiable by their Internet Protocol address (IP address), which distinguishes the virtual location of a particular computer. Most ISPs allocate a pool of IP addresses as needed, rather than assigning each computer a never-changing static IP address. Using ISP subscriber information the content industry has thought to remedy copyright infringement, assuming that the ISPs are legally responsible for the end user activity, and that the end user is responsible for all activity connected to his or hers IP address.

In 2005 a Dutch court ordered ISPs in the Netherlands not to divulge subscriber information because of the way the Dutch content industry group had collected the IP addresses (Foundation v. UPC Nederland). According to Dutch law ISPs can only be ordered to provide personal subscriber data if it is plausible that an unlawful act occurred, and if it is shown beyond a reasonable doubt that the subscriber information will identify the person who committed the infringing act. In Germany court specifically considered the right to privacy and in March 2008 the German Federal Constitutional Court ruled that ISPs could only give out IP address subscription information in case of a "serious criminal investigation". The court furthermore ruled that copyright infringement did not qualify as a serious enough offense. Subsequently, in April 2008, the Bundestag (German parliament) approved a new law requiring ISPs to divulge the identity of suspected infringers who infringe on a commercial scale. Similarly, in Sweden, a controversial file sharing bill is awaiting the Riksdag’s approval. The law, which would enter into effect on 1 April 2009, would allow copyright holders to request the IP addresses and names of copyright infringement suspects in order to take legal action against them. The copyright holders, though, should present sufficient evidence of harm to justify the release of information regarding the Internet subscribers. In Italy, the courts established that criminal liability does not extend to file sharing copyrighted material, as long as it is not done for commercial gain. Ruling on a case involving a copyright holder who employed a third party to collect IP addresses of suspected copyright infringers, the Italian Data Protection Authority ruled in February 2008 that the systematic monitoring peer-to-peer activities for the purpose of detecting copyright infringers and suing them is prohibited.

Germany

In Germany, file sharing is illegal and even one copyrighted file downloaded through BitTorrent can trigger €1000 fines or more. The GEMA also used to block many YouTube videos.

France

In October 2009, France's highest constitutional court approved the HADOPI law, a "three-strikes law"; however, the law was revoked on 10 July 2013 by the French Government because the punitive penalties imposed on copyright infringers was considered to be disproportionate.

Ireland

In May 2010, Irish internet provider Eircom have announced they will cut off the broadband connection of subscribers suspected of copyright infringement on peer-to-peer file sharing networks. Initially, customers will be telephoned by Eircom to see if they are aware of the unauthorized downloads. When customers are identified for a third time they will lose their internet connection for 7 days, if caught for a fourth time they will lose their internet connection for a year.

Japan

File sharing in Japan is notable for both its size and sophistication.Shirley Gene Field (2010)
"Internet Piracy in Japan: Lessig’s Modalities of Constraint and Japanese File Sharing".
University of Texas Masters Thesis. The Recording Industry Association of Japan claims illegal downloads outnumber legal ones 10:1."Japan introduces piracy penalties for illegal downloads".
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