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Peer to peer file sharing networks has not only changed the way people share their music files, but it has also brought about lawful disagreement between the Recording Industry Association of America (RIAA) and users (Perera, 2007). The course has been taken by many P2P file sharing networks to encourage a legal file sharing for users based on payments of small amount of cash to download songs from an administered central site like iTunes. Laws that control legal file sharing also endanger the internet as well as intervene to the technology evolution. Perera (2007) noted that “the advent of P2P file sharing networks like BitTorrent, in which video files are shared enhances the problem of enforcing copyright laws because of the expense involved in prosecuting a significant portion of the millions of Gnutella and BitTorrent users” (p. 23). Internet service providers (ISPs) may wedge P2P networks in the future to avoid being involved in copyright violation. Legal file sharing will continue to be an open problem to the ISPs.
Cheap computers and internet connections have lately facilitated easy access to copyrighted content across peer to peer networks. Quigley (2008) noted that the greater part of unlawful copyright takes place as illegal copying of works though P2P networks, representing a form of digital piracy. Currently, the majority of internet communications is simply copying of digital content (Quigley, 2008). In some cases the works are distributed for free to gain visibility in the audience (Quigley, 2008). Unlawful copying will boost the sales of works later, while the copying of modern hit songs will cause substantial losses to owners. Advancements should be adopted to set up a legal framework undertaking the situation as indicated in this research.
P2P file sharing has led to many arguments about copyright laws and has become a worldwide dilemma. Due to the difficulties in implementing copyright laws Freire (2008) says that the impact of P2P on music production and some other general economic, social and ethical implications of this technology is huge. The P2P technology presents critical issues caused by the current illegal use of this technology for sharing copyrighted music files (Freire, 2008). For example, the serious damage to music production and the infringement on copyright holders interests. Freire (2008) further says that “technological innovations, social hassles and problems with the present type of music production have intensified the current crisis and recommends that a new type of production is needed” (p. 548). Legislation should enhance such new innovations, support P2P technology in the interest of the public, protect copyrights, and regulate P2P stakeholder’s interests in an unbiased manner according to the ethics of law (Freire, 2008).
According to Smith (2007) there are limits to the applicability of the Copyright Act 191. This is because exclusive rental and leasing rights apply only to the distribution of physical media on which visual works are fixed. Hence, P2P file sharing is included. Smith (2007) indicated that there has been a bold but rather unsuccessful attempt to claim that in addition to infringing the right of reproduction, posting a lyric song on a website constitutes an infringement of the right to make a contrivance for mechanically delivering a work.
The Digital Millennium Copyright Act (DMCA) of 1998 limits the responsibility of internet service providers (ISPs). Under the act an ISP is not liable for any copyright infringement by its customer unless the ISP is aware of the subscriber’s violation (Cross, 2007). An ISP may be held accountable only if it fails to take action to shut the subscriber down after realizing of the violation. A copyright proprietor must act swiftly, however, by pursuing a claim in the court or the subscriber has the right to be restored to online access (Cross, 2007).
Smith (2007) noted that “an individual user, who merely views a copy of an infringing work, is unlikely to be liable for public performance” (p. 603). As a result of the broad interpretation of the right and depending on such networks physical modes of operation, it may also be relevant to the issue of P2P file sharing in many countries. Another way to determine liability is to show that a ISP allowed the use P2P file sharing for infringing performance of a work in public, unless there is a reasonable ground for suspecting that the performance would be an infringement of copyright (Smith, 2007). It is not clear whether the courts will apply this section to virtual spaces such as wesites and P2P file sharing.
Sharing an infringing copyright work through P2P file sharing may expose the proprietor, the individual liable for uploading the work or the ISP to indirect accountability for the sale, hiring or distribution for the purpose of trade, display or import of work. P2P network operators and file sharers may be held accountable for distributing infringing works to such scope as to harm the owner of the copyright (Smith, 2007).
Liability by ISPs for the unlawful activities of their clients may depend on the kind of actions taken. Iacovino (2006) noted “a contractual relationship is usually between the communicating party and its ISP, but unfair contact terms and consumer protection laws in many jurisdictions could render the terms invalid” (p. 275). Most P2P file sharing have an express contract which includes ISP liability for communication failure, if there is no contract most controls will imply that the ISP must take logical care in the provision of services to its user. Iacovino (2006) further says that an enforceable contractual obligation for the benefit of a third party might create a contractual duty owed by a file sharing host to the customers of those ISPs with the help of which there is an express interconnection agreement.
The ISP has a duty to take reasonable care in forwarding packets during P2P file sharing. Iacovino says that attestation of breach would be hard to establish. Hence, a tortuous duty of care is even less likely to be imposed on the intermediary (2006). The losses are likely to be financial and a duty of care is the only likely, if there is a pre-existing non-contractual relationship. This implies that even if a definite intermediary did owe a duty to one or other of the communicating parties, it can not be predicted what the breach of that duty will cause loss (Iacovino, 2006).
ISPs may be potentially liable for content they do not control, because they can prevent further dissemination in a P2P file sharing protocol. Iacovino (2006) articulated that “the more an ISP knows about the illegal matter the more liable he or she becomes” (p. 276). This means that too much control over content in a P2P network may also lead to authorizing an infringement. The law of copyright has always recognized authorized violation implying that a party authorizing the act which breaches copyright is legally responsible even when they do not implement the action themselves. Liability is shared between the information provider for breaches of copyright and user and remains applicable at the P2P file sharing networks (Iacovino, 2006).
In addition, Tarruella (2012) researched that ISPs should adopt a more comprehensive view of the association between law and other normative realms. Particularly between law and ethics they should consider managing their networks reasonably. ISPs still need to establish what the law is when choosing their reasons for action (Tarruella, 2012). Whether there is an identity between the legal and the moral realms or not in P2P file sharing, law translates the moral with its own, legal lenses. The law will need to regulate the activities of the P2P file sharing as it also needs to regulate the activities of every other actor of the information environment (Tarruella, 2012).
To nullify the prospects that P2P file sharing will act with autonomy in choosing the reasons with which to contribute to this wider project of normative unity is another thing altogether (Tarruella, 2012). On the other hand, Tavani (2009) indicated that although currently ISPs cannot be held legally liable for content that is communicated in P2P file sharing, they have been persuaded to keep an eye on and filter that content to the extent that they can. This has presented a critical legal problem. Tavani (2009) says that the more an ISP edits content, the more it becomes like a publisher. Hence, applying editorial control, ISP becomes legally liable. This in turn raises a moral dilemma for ISPs.
Another dilemma arises as a consequence of ISPs seeking protection from lawsuits might be inclined to cooperate with organizations in ways that threaten the privacy and anonymity of their subscribers who use P2P file sharing. Tavani (2009) says that even if ISPs are exempt from legal liability in defamation cases we can ask whether they can still be held liable in a moral sense. Since ISPs do not cause defamation, they cannot be held accountable in the strict or narrow sense of the term, but they could be held accountable to provide an occasion or an opportunity for denigration (Tavani,, 2009).
Since ISPs present an occasion for defamation, this does not imply that the ISP is accountable. For ISPs to be held accountable they must have had the capability to do something about P2P file sharing. It should also be established that the ISP failed to take action once it was informed that a victim had been defamed (Tavani, 2009). Tavani (2009) says that technical and economic factors make it virtually impossible for ISPs to take preventive or pre-screening measures that would detect or filter out illegal transfer of content in a P2P file sharing network. This implies that we cannot hold ISPs responsible in a causal sense for defamation.
The latest developments and recent events increasingly support the idea that it is still unclear how the music industry and society will find a viable long term solution to the problem of ISPs law on illegal P2P file sharing (Lian & Zhang, 2009). The basic idea is to have ISPs monitor internet traffic of their users for illegal use of P2P file sharing systems and to warn them twice before banning them from accessing internet (Lian & Zhang, 2009). The most common criticism of such approaches is that it is not even clear whether such a filtering mechanism would effectively work in P2P networks. It is evident that it will cause serious threats to privacy. It is also arguable whether it is the role of ISPs to enforce copyright laws in P2P file sharing.
There is a major social and ethical question raised by a potential banning a person from the P2P file sharing network. Lian & Zhang (2009) indicated that this is because such networks have become a basic commodity just like water and electricity. As a result, banning a user from accessing the P2P file sharing network can have dramatic consequences in terms of social exclusion.
While most ISPs intermediaries have by now subjected themselves to a code of conduct to some extent, not all these codes deal specifically with copyright enforcement. The provisions of law and code of conduct are without precedent to any liability arising from civil law for acts of copyright infringement by third parties. Stamatoudi (2010) indicated that some codes even rule out their application to instances of copyright infringement altogether, such as the code of practice and ethics of the ISPs of Ireland which concentrates instead on spamming and harmful content. Additional codes of conduct do touch upon copyright enforcement, but grant little more guideline for P2P file sharing than existing background law does (Stamatoudi, 2010).
The terms that YouTube enforces upon its users and seemingly upon itself are basically a replication of the provisions on notice under the existent US Copyright Act, revised by the Digital Millennium Copyright Act. Stamatoudi (2010) further says that the statement of Rights and Responsibilities that govern Facebook’s association with its users likewise refers to the notice and take-down procedure under US copyright law and do the terms of service of the Google search engine. It is important to note that the safe harbor provisions in US law extends to providers of the so called information location, that is, search engines (Stamatoudi, 2010).
Some codes require ISPs to establish procedures for the termination of subscriber accounts in cases of repeated copyright infringement. Stamatoudi (2010) says that on the basis of the US law a P2P file sharing will benefit from the safe harbors, provided by the law only on the condition that it has adopted and reasonably implemented the codes of conduct, stipulated by the law. This goes hand in hand with informing P2P file sharing network users and account holders of the ISPs network of a policy that provides for the termination in appropriate circumstances of subscribers who are repeated infringers.
In conclusion, Stamatoudi (2010) cautions that putting copyright enforcement into the hands of private P2P file sharing networks creates conditions for these private actors to become capable to judge of what constitutes copyright infringement and what not. Stamatoudi (2010) says that many ISPs can consequently shut down an allegedly infringing P2P file sharing network even if the claim of the purported right holder is completely bogus. It is possible therefore to say that ISPs are not competent enough to act as judges and have no incentive to develop the copyright expertise, required as far as P2P file sharing is concerned. These codes should help ISPs to ensure risk avoidance on the part of the ISPs, and thereby compromise basic principles of the due process.