Media Law – Music Copyright – ISP’s Liability for File Sharing

By Rosanna Cooper

A Coalition of music industry bodies, including the MCPRS Alliance and the Association of Independent Music, is lobbying to have intellectual property law amended to allow Internet Service Providers (ISPs) to be sued for allowing illegal file-sharing on their networks. Commentators have said that their efforts are misguided and commercially impractical. Currently, ISP’s are not required to police the content of their networks much in the same way that telephone companies are not liable for obscene calls.

The problem arises because file-sharing is the primary reason for an increasing number of users using broadband, and is responsible for much of the bandwidth that ISP’s sell to their customers. If file-sharing was outlawed, ISP’s would lose a substantial proportion of their revenue. The crucial point is that trying to police content used by millions of customers would be difficult and very expensive.

Up until now, the music industry has tried to combat file-sharing by pursuing individual users who share vast libraries of copyright material. File-sharing is only illegal when it is copyright material being shared. Recently, the British Phonographic Industry tried to convince two ISP’s – Tiscali and Cable & Wireless – to suspend the accounts of 59 users, but without success.

It should also be noted that under the Data Protection Act ISP’s are prevented from disclosing to a third party the names of users without their permission or an order from the court. This means that a copyright owner will usually only be able to identify offenders by an IP address. If a copyright owner wants to sue an offender, they have to first force the ISP to disclose the name of the offender who operates from the specific IP address. There is a precedent derived from the 1970’s Norwich Pharmacal case which could be applicable in these circumstances. The precedent states that it is permissible for A (who may be a copyright owner) to sue B (who may be wholly innocent ISP) in order to force B to identify wrongdoer C (who may be a file-sharer). This precedent has successfully been relied on in online defamation cases, and can potentially be used to identify particularly active file-sharers.

There have also been suggestions that ISP’s could become licensed music providers. However, this also seems commercially impractical. Firstly it is not part of an ISP’s core business and secondly, ISP’s working with the music industry to try to agree licensing fees has proved impossible to date.

Comment: As far as the law is concerned, it would be far better for the music industry to recognise that technology has improved to a point where a change in music distribution is now necessary. They should be looking to exploit the internet rather than policing it – a fledgling example of this being Apple’s i-Tunes. If it is possible to download properly licensed, good quality versions (perhaps with bundled ‘extras’) for an affordable fee, illegal file-sharing may become less attractive.

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© RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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