7.19 IPR enforcement, PIRATE and INDUCE

The passing of the European Union intellectual property rights (IPR) enforcement directive in March 2004 could lead to raids on alleged filesharers' homes and increasing costs for telecommunications companies associated with P2P litigation and P2P technologies.

Following the MGM v Grokster case, we saw increased though not entirely fruitful lobbying efforts to get the US Congress to change the law to target P2P technologies. (Pamela Samuelson, of the University of California at Berkeley, had some interesting views at the time of the decision as to how the ‘inducing infringement’ test introduced by the court deprived the industry of ‘its strongest argument for legislation to put P2P and other disruptive technology developers out of business.’)

There were (and are) ongoing proposals for laws in the US to tackle copyright infringement on P2P file-sharing networks. ACCOPS (Author, Consumer and Computer Owner Protection Security Act of 2003), ART (Artists' Rights and Theft Prevention Act 2004) and the PIRATE (Protecting Intellectual Rights Against Theft and Expropriation Act 2004) bills, which could have led to the jailing of P2P file swappers, the Justice Department pursuing civil legal action on behalf of the entertainment industry, and the facilitation of wire tapping for civil copyright infringement, were introduced.

Also in March 2004, California Attorney General Bill Lockyer (also President of the National Association of Attorneys General) circulated a letter to fellow state attorneys general calling P2P software a ‘dangerous product’ that facilitates crime and copyright infringement. The letter appears to have been drafted by a senior vice president in the MPAA (Motion Picture Association of America), however. In August 2004, an updated version of this letter was sent to P2P United, the trade body for P2P companies, urging the companies to ‘take concrete and meaningful steps to address the serious risks posed to the consumers of our States by your company's peer-to-peer (“P2P”) file-sharing technology.’

The movie industry has been shocked by the development of P2P software such as BitTorrent, which facilitates significantly faster distribution of large files than had previously been possible. The scale of the P2P file-sharing problem facing the film industry could potentially be as big as that faced by their counterparts in the music industry, sooner than they had expected. Hence the lobbying of officials like Lockyer. The MPAA have also begun their own campaign to sue individuals.

In June 2004 US lawmakers introduced the INDUCE (Inducement Devolves into Unlawful Child Exploitation) bill. By August 2004, the name of this proposed law was changed to the Inducing Infringement of Copyrights Act of 2004. While the intentions behind the INDUCE act were to regulate P2P copyright infringement, critics said that it could be used to sue libraries or any computer or electronics manufacturer for selling PCs, tape recorders, CD burners, MP3 players or mobile phones.

Lessig would portray all these developments – the court cases and attempts to strengthen the copyright owners' position in law – as examples of his counter-revolution. The Grokster case, even though the company lost in the Supreme Court, suggests that, when it comes to P2P technologies, the battles in the counter-revolution are not all one-sided, particularly if we agree with Pamela Samuelson that it was a very narrow and not entirely welcome victory for the music industy. The counter-revolution (if we agree with Lessig that there is a counter-revolution) by the established industries is a complex story and one that will continue to evolve.

Further reading:

  • IFPI response to Netherlands Supreme Court judgement on Kazaa

  • EDRi-gram on the passing of the EU IPR Enforcement Directive

  • Foundation for Information Policy Research on EU IPR Enforcement Directive

7.18 P2P cases: MGM v Grokster

7.20 Consequences of control