By Sue Gilchrist and Sarah Strasser
Digital copyright is being enforced rigorously in Australia, echoing the increased popularity of digital media in Australia, the United States and elsewhere. One of the areas in which this is playing out is in the world of peer-to-peer file swapping services on the internet. The music industry, among others, has been particularly concerned by the ability of users to download digital files posted by other users anywhere in the world.
In the US, not only have popular services such as Napster, Grokster and Aimster been implicated in copyright infringement claims, but universities with students using such services have also been targeted. Some universities have resisted: in July 2003, Boston College and the Massachusetts Institute of Technology moved to quash subpoenas issued by record companies to discover the identities of students suspected of infringing copyright, citing concerns over student privacy.
In July alone, the Recording Industry Association of America filed over 800 subpoenas in a US district court, demanding information from universities and other internet service providers (ISPs) about users of KaZaA, a popular file-sharing program.
Over the past few years, US federal courts have been addressing the question of the liability of ISPs and file-swapping software creators for the infringing activities of their users. In a recent case a US appellate court upheld an injunction shutting down the Aimster file-sharing service, on the basis that it was used primarily to trade infringing copies of music recordings. However, the court did note that Aimster could continue in business if it could prove that its service has substantial non-infringing uses.
Although actions concerning file-sharing have only appeared more recently in Australia, music recording companies have (successfully) sought access to universities' computer systems to search for individual students who may be copyright infringers. In a recent decision Sony, EMI, and Universal sued Sydney University, Melbourne University and the University of Tasmania to gain access to their computer systems to investigate possible copyright infringements.
The studios' real target is, of course, any individual students who are trading infringing copies of music or other files. With the assistance of Music Industry Piracy Investigations (MIPI), an organisation that tracks file swapping activity on behalf of the music industry, the record companies had already gathered evidence of numerous MP3 files on university computers, which they claimed to be unauthorised copies of sound recordings in which Sony and Universal held copyright.
So far, the record companies have enjoyed moderate success. Earlier this year Justice Tamberlin of the Federal Court granted them limited access to the universities' computer networks to search for additional proof of infringement. While the record companies argued for full access to backup files of the computer systems (which contained a record of the system and its contents at the time the proceedings were commenced), and the universities argued that they should be able to conduct the search themselves and deliver the results to the record companies, Justice Tamberlin granted neither request fully. Instead, he ruled that an expert appointed by the record companies would have direct access to the computer systems, but that he would have to give the universities and their legal representatives copies of the search results. The expert was also required to give strict undertakings as to confidentiality and non-disclosure. Interestingly, the majority of the case focused on how the information would be gathered, the record companies having easily made out the burden required to have access to the computer systems in the first place.
In another development, students have been prosecuted directly for file-sharing activities, with the Australian Federal Police rather than the recording studios taking the lead. In April, the AFP charged three university students for copyright infringement by operating a music and video file swapping service called MP3 WMA Land (which is now, not surprisingly, closed for business). These charges were the result of an investigation in which the AFP was assisted by MIPI.
Nor are the universities themselves safe from prosecution. In the decision, Justice Tamberlin commented not just on the possibility that individual students making use of the universities' computer network could be infringing copyright, but said that the universities themselves may have 'authorised, aided and abetted' those infringing activities. US courts have gone so far as to find a file-swapping service contributorily liable when it had 'actual knowledge that specific infringing material [was] available using its system'.
It might seem ironic that services like Napster created a consumer base comfortable with and hooked on downloading MP3-format music files from the internet, which gave rise not only to copyright infringement by users, but effectively created a new market for the music industry. The difficulty for the industry now is to develop and maintain a viable fee-based service. Perhaps Apple's new iTunes service has succeeded by offering the ability to download copyrighted music legally for only US$0.99 per song. But whether users will choose to use such services in large numbers is something only time will tell.
This article provides a summary only of the subject matter covered, without the assumption of a duty of care by Freehills. The summary is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.
