Music Copiers Face Copyright Backlash

November 1, 2004

Illegal P2P sites enable end-users to infringe the copyright of the record labels and the recording artists. An estimated 94% of songwriters in the UK earn less than £10,000 a year and it is these songwriters that the illegal sites are hurting the most, argues the BPI. There are now many lawful downloading sites, such as Apple’s iTunes and Real’s Rhapsody, where a proportion of the money paid to download goes back to the record companies, a share of which goes to the recording artists. The BPI claims that most users of unauthorised P2P sites know that they are illegal and the BPI is determined to put an end to them.

In a P2P site, there are four groups of potential defendants; each is considered below.

1. Companies behind the sites

Companies behind P2P sites argue that these sites provide a facility that can be and is used for lawful means. They rely on the arguments successfully used by Amstrad in defending an action brought by CBS Songs in 1988. CBS claimed that people would make illegal copies of pre-recorded cassettes using Amstrad’s twin-cassette tape recorder, and therefore Amstrad were authorising users to infringe copyright. Amstrad successfully argued that, although it was possible for people to use the tape recorder to make illegal copies, Amstrad did not encourage this. Furthermore, it was possible to use the tape recorder to make lawful copies.

2. Individuals who upload their music

A recent change in copyright law provides that it is an infringement of copyright to make available a work to the public by electronic means. This includes making the work available in such a way that members of the public may access it from a place and at a time chosen by them. It seems clear, that by uploading music tracks to P2P sites the individual responsible is infringing the copyright in those tracks.

The BPI has asked the ISPs to reveal the identity of the individuals. A legal entity that has been caught up in wrong-doing by another, through no fault of its own, is under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoer. This rule has been successfully tested against ISPs in other actions, and it seems likely that the BPI will rely on it here.

3. Individuals who download music

The legal issues against downloaders are straightforward. By downloading a track without the permission of the copyright owner, the downloader is infringing the copyright in the track. The BPI could obtain details of the downloaders from the ISPs.

4. The ISPs providing end-users with access to the Internet

The ISPs may argue that they are “mere conduits”- ie they did not initiate the downloading/uploading, they did not select the receiver of the act nor select or modify the track downloaded/uploaded. Mere conduits are not liable for infringement.

However, another change to copyright law states that injunctions can be granted against ISPs that have “actual knowledge” of a third party using their service to infringe copyright. The “mere conduit” argument cannot be used against an injunction.

In commencing action against uploaders, with the assistance of the ISPs, the BPI is making a bold statement. It will not tolerate the unauthorised downloading of music and will take expensive steps against the individuals responsible to make this point clear. This message may deter some individuals, but the BPI would be well advised to combine this action with other approaches. The demand for online music is huge, and will not disappear. Legitimate sites are starting to fill the gap, but the BPI should work with the market and consider their views and concerns to satisfy the growing demand.

Charlotte McConnell is an Associate at Bristows.