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Net Law Roundup #19

by Jeremy Malcolm, Internet lawyer

One of the Internet's biggest growth areas over the past few years has been the use of Peer to Peer (P2P) file sharing technologies. There are now dozens of file sharing programs and networks, amongst the most popular of which are Gnutella, DirectConnect, Kazaa and eDonkey.

The best known of all P2P file sharing programs, Napster, was famously shut down last year by American record labels on the ground that it had committed a "vicarious infringement of copyright" by allowing its users to share copyright music files. In Australia, we don't have the same notion of "vicarious infringement", but we do an equivalent prohibition of "authorising" an infringement of copyright.

Napster's successors have attempted to escape its fate by avoiding the use of a central server. With some of the newer P2P systems, all participants in the network can act as servers. This doesn't really make them any less liable than Napster for authorising breaches of copyright - especially if they are also trading copyright files themselves. What it does mean however is that there is no single "easy target" for the music industry's copyright lawyers.

What about Internet Service Providers who allow P2P file sharing to take place on their networks? Whilst they are not automatically liable, in Australia they are still at risk of being sued for authorising breaches of copyright if they knew of an infringement by a customer, had the ability to take reasonable steps to prevent it, and failed to do so. Australian privacy laws will however usually prevent ISPs from becoming aware of copyright infringements committed by their users, and their power to control such infringements is generally limited, so they would be unlucky to find themselves guilty of authorising an infringement.

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances