Five by Five

Christina King, Intellectual Property Specialist, Lawdit Solicitors Ltd sheds some light on the delicate issue of sharing content over the Internet.

Using home computers to copy music and video has been a hot topic for many years. In fact the debate over technology that allows you to copy someone else’s intellectual property began in the 1980s with the introduction of twin cassette decks and video recorders. At this time, the music industry in the UK and the film industry in the US failed to get such equipment banned. Manufacturers argued, successfully, that though their products could be used to infringe copyright, illegal action on the part of the consumer didn’t justify blocking equipment that had important and perfectly legal uses.

The advent of the digital age has made it easier than ever before to make high quality copies of audio and video content. And the Internet has become an anonymous haven over which criminals can distribute unauthorised material, further fuelling the fire of the industry moguls’ arguments.

Prior to about 1999, manufacturers and distributors of products that could potentially be used to infringe copyright remained indemnified against the actions of their customers. However, the question of responsibility was blurred by the introduction of peer-to-peer file sharing services such Napster, Grokster and Kazaa. Initially the old rule applied - these companies only provided the software to facilitate the sharing of files and did not have any control over the content of the files themselves. However, as the systems are challenged more and more, court decisions are increasingly on the turn, such as in the US Supreme Court case of MGM v Grokster.

The latest service to be put under the spotlight by the entertainment industry is YouTube. As its service continues to soar in popularity, so do the complaints from various entertainment companies relating to uploaded material that allegedly infringes their copyright.

The US Digital Millennium Copyright Act includes a ‘safe harbour’ provision for service providers. It protects them from liability in relation to material uploaded by their customers/users provided they comply with specific requirements.

However some commentators have noted that as advertising through such applications increases, the vendors may need to tread carefully to avoid transgressing the protective barrier offered by the above provision… it has been stated that no financial gain may be made by the service provider which can be attributed to the infringing content. In the aforementioned Grokster case it was indicated that the profit made by the companies through the advertising space highlighted an unlawful objective behind the software.

YouTube has reportedly responded to several requests - invoking the ‘safe harbour’ provision - to remove user-uploaded material which breaches copyright. However it is coming under increasing fire for not doing more. Accordingly, the new owner - Google Inc - has announced that it will soon start filtering content in a bid to eliminate infringing material. It is thought that the company will use the Audio Magic system which checks files against a database of copyright material to identify illegal content.

It’s clear that if a company is seen to be gaining a commercial advantage by virtue of the rights and content belonging to others, the offended parties are unlikely to take it lying down. Ownership of intellectual property is an increasingly hot issue. Companies must act fast to protect their investment. This is a specialist area so getting a good lawyer is paramount to this. Alternatively if you are infringing someone else’s copyright a good lawyer is equally important to deal with the increased risk of action!

To contact Christina click here >>

taken from the Gadget Edition of the Five by Five Review, May 2007