The continued war on Copyright (Infringing File Sharing)

Article  \  30 Mar 2012

Digital locker and streaming media services (in particular, Mega Upload and TV Shack) may have been the latest digital media services under fire, but file sharing remains a major issue for copyright holders worldwide.  As of January 2012, BitTorrent surpassed the mark of 150 million active users (‘active’ meaning in use at any given moment).[1]

New Zealand’s Copyright (Infringing File Sharing) Amendment Act 2011 prescribes a three strikes system for internet users whose accounts are being used to illegitimately share copyright material.  Prior to the Act’s introduction, New Zealanders were believed to be responsible for approximately 160,000 file sharing copyright infringements a month.  On 1 November 2011, the first 75 complaints under the Act were sent from the Recording Industry Association of New Zealand (RIANZ) to Internet Protocol Address Providers (IPAPs).

While the Act did not bring about the flood of infringing file sharing warnings that was expected, there has been a steady flow of warnings from RIANZ.  It is believed that several hundreds, or even thousands, of infringement notices have been issued, and that some internet users have even received their second warning notice.  It is not believed that any enforcement notices (third strikes) have been issued at this point.

From day one, copyright owners have complained that the fee prescribed by the Regulations ($25 plus GST per complaint issued) is too high and would discourage copyright owners from makings complaints.  As promised, the Ministry of Economic Development is now reviewing the $25 fee.  Some copyright owners are calling for zero fees, while IPAPs say that $25 is an appropriate amount considering the amount of work required per infringement notice.

Submissions can be made to the Ministry of Economic Development until the end of April 2012.

In France, 165 internet users have been issued their third strike under the French three strikes (HADOPI) system.  It has been reported that peer-to-peer file sharing in France has dropped by 26% (an estimated 2 million users) since the first notifications were sent in late 2010, and that iTunes sales have increased by 22.5%. 

However, it has been estimated that enforcing the HADOPI system costs French Internet Service Providers (ISPs) €50 million a year.  This cost has been reflected in ISPs’ increased monthly rates to their users (an extra approximately €5 per month).  Internet users are therefore indirectly paying for the three strikes system in France, although ISPs have called on the Government for subsidies.

In the United Kingdom, the Digital Economy Act allows for a government approved authority, Ofcom, to enforce ISPs to monitor internet users’ accounts and send notifications if any copyright infringement is detected.  Warning letters will be sent out and any user who receives three strikes in 12 months may face legal charges.  Under this system, the government will pick up Ofcom’s costs, and ISPs will have to carry their own.

In Switzerland, file sharers have been afforded a certain level of protection by the decision in Swiss Federal Data Protection and Information Commissioner v Logistep AG, where the Federal Supreme Court ruled that collecting and tracking IP addresses of peer-to-peer file sharers was prohibited under current law.  Copyright owners are calling for some system to be implemented in order to address the problem of file sharing.

Illegal file sharing is still identified as one of the largest issues by copyright owners worldwide.  Many countries have recognised this and have begun to implement systems to deal with repeat infringement.  Whether copyright owners will bear the costs of enforcement in each jurisdiction, or whether other parties (such as ISPs or internet users) will have to pick up the bill remains to be seen.