With technology evolving so quickly, and user habits driving new forms of information sharing equally swiftly, the law is ill-equipped to tackle the wild frontier of file sharing and music piracy. Rosie Davies reports on a crimewave ahead of the legal curve.

ur digital society has little or no respect for the intellectual property of others. With 90% of all music downloaded illegally - who can really dispute this? Copyright in music tracks is no longer regarded as an asset that has an intrinsic value. The theft of it is not perceived as the taking of a “thing” which is the property of another person. It is the taking and using of publicly available material that only a mug would pay for. 

If this attitude prevails, what hope do we have to prevent illicit (nil cost) transactions of music, video and software files over the internet?  Last year in an effort to find a solution for all the parties concerned BERR commissioned a consultation document seeking a variety of opinions on the options available to address unlawful P2P file- sharing.  The resulting responses indicated a “marked polarisation of views between the rights holder community, consumer and ISPs.” There appears no clear way forward.

We are engaged in a contentious IP&Technology practice - actively enforcing IP rights on behalf of our clients. Clients do not come to us for our views on how media files may be transacted over the internet in five years time. They want to know about the reality of enforcing IPR in 2009.  How can their IPR be protected, how long will it take and how much will it cost them? 

There are a number of inadequacies with the current regime and the UK Government has recently made a strong push for ISPs to assume greater responsibility through a co-regulated system.  The disclosure of internet user’s identification details by ISPs and the emergence of filtering and packet inspection technology may also play a part in the solution.

Alternatively, it may be that an entirely new business model will be adopted which will permit users to access music and other files, at no charge, from a platform such as youtube.com.  We are heading towards that, or something similar, so the next generation of downloaders will be amazed to stories about people actually paying to access and listen to music or watch movies that are online.

A former Scottish IP crime prosecutor recently expressed their amazement that criminals still deal in drugs and rob banks.  Why do they commit crimes which the law enforcement system is focused on, when the lucrative copyright market provides ample opportunity for exploitation? Copyright infringement continues to increase.

 The extent of the problem is in large part due to the fact that copying CDs or DVDs is frequently not viewed as a crime. In an effort to combat this perception enforcement action has taken two distinct routes. Firstly a number of high profile litigations (mainly in the US) have targeted the P2P developers and distributors. The recent prosecution of the founders of The Pirate Bay is a good example of this.  A second wave of litigation, brought by copyright enforcers on both sides of the Atlantic, focused directly on individual file sharers.

From Day One the internet created the potential for a variety of legal wrongs including online defamation and copyright infringement. Understandably, due to the huge financial and technological possibilities the internet offered, national legislators did not wish to bite the hand that could feed them. To get around such difficulties they provided ISP’s with a safe harbour system of protection. No positive duty was placed on ISP’s to monitor and filter the content made available through their networks.

The introduction of P2P file sharing techniques posed a novel and potentially debilitating challenge to the large (tax-generating) entertainment industries and resulted in the high profile Napster, Aimster and Grokster litigations. This string of decisions concluded that P2P developers were clearly aware that their systems were being used for infringing purposes and as a result they were liable for secondary copyright infringement.

After A & M closed down Napster there was Aimster; after Aimster there was Grokster and more recently service providers such as The Pirate Bay. However the widespread judicial condemnation of P2P hindered the early developers from obtaining venture capital and further developing, refining and more importantly legitimising their service. The Pirate Bay was beginning to have an aura of legitimacy - if the Swedish prosecutors hadn’t taken steps against it, that aura would have gained in substance.

In addition to action against those providing filesharing services, a second front was opened against the customers using these services. The threat of being sued for up to £1,000 for having downloaded a single film or game is effective to occasional illegal downloader.

There is a limit to what the national courts can achieve. While the internet is global in nature, courts are parochial. It is a big ask to hope that the regulation of transactions conducted over the internet can be patrolled by courts limited by geography and jurisdictional boundaries. Criminal enforcement is again very limited by national boundaries but can be a cheaper solution.  In Scotland it is not possible to bring private prosecutions, therefore we must rely on the Procurator Fiscal Service, with their limited resources and a lack of expertise. There is also a perception that there are more “worthy” crimes requiring attention.

History has shown us that, wherever there is a market and demand for a product, suppliers will find a way to service that demand. Especially if it is cheaper than from the official source. Prohibition did not stop the sale of alcohol when it was wanted.  Sending several armies into Afghanistan will not stop a flow of opium coming onto the streets of Britain.  The music pirates will always find a way to meet demand.

Attempts to stop that supply from reaching market are doomed to failure.  The more successful the dam across a river - the more water builds up behind it and pressure is increased.  By closing down certain filesharing sites we must make the services offered by others more attractive and select, increasing the value of their business and potentially encouraging new entrants to join a more lucrative market.

The average price of a fake music CD is £2.48, less than a third of the £8.15 average price of its legitimate counterpart.  With margins like this available, is it any wonder the black-market is booming when High Street retailers like Woolworths and Zavvi have failed?

The solution may lie in a hybrid of technological measures and market led products and services (in short offering an attractive service for a fair price) backed up by enforcement measures. To a point the legal arm may be as much about legitimising the ongoing copyright system per se as it is about stopping illegal P2P file sharing. Meantime we may find that ISPs are forced to take responsibility and that technology and greater access to infringer’s data is the key.