What is file-sharing all about?
In general terms, file-sharing is the activity of swapping digital files over the internet with other users. Users swap files by uploading (to share them with others) and downloading (to receive) them.
How is file-sharing carried out?
Once on a file-sharing website, users download software to gain access to a file-sharing or peer-to-peer (“P2P”) network. When the software is in use and the user is connected to the internet, it is possible to swap files with others who are online, by either uploading (also known legally as ‘making available’) or downloading them (or both).
Is file-sharing illegal?
Any files downloaded are usually stored and located in a folder on the user’s personal computer, known as the shared files folder. The effect of each user making his or her own digital files available on the internet to other P2P users creates an enormous and potentially illegal library of digital files available for download using P2P services.
Downloading is when an internet user obtains a digital file from an uploader. Unless such downloading is done with the consent of the copyright owner, it constitutes copyright infringement under the Copyright, Designs and Patents Act 1988 (“CDPA”) and is illegal.
Copyright legislation provides that a person must have the permission of the copyright owner to make a work protected by copyright available for download on the internet. Uploading without the permission of the copyright owner is illegal, irrespective of whether the copyright material was originally obtained legally or illegally by the uploader.
Why is file-sharing on P2P networks illegal?
Each creative industry invests millions of pounds annually in developing and publishing copyright works for the consumption of the general public, and recovers the monies invested by usually retaining the exclusive right to copy, distribute, publish and make available those works on the internet.
Without copyright protection, there would be no financial incentive for publishers and developers to invest in new titles and the UK would not be one of the leaders in fields such as computer games and music. UK law grants various rights to copyright owners, including the right to communicate or make such works available to the public (e.g. over the internet). Accordingly, anyone distributing copyrighted recordings over P2P networks without the copyright owner’s permission is breaking the law by infringing those rights.
Does file-sharing harm businesses?
If companies cannot make money from selling the fruits of their labours in stores or online because they are being shared for free on P2P networks, these businesses will not survive for long.
Whilst there is some evidence that a small percentage of file-sharers do download from P2P networks to “try before they buy”, such a download is still an illegal one. This is also in stark contrast to the much larger number of people who download illegally, instead of buying the item in the shops.
How can you tell which websites are legal?
At the moment, there are very few websites where it is possible to file-share legally. There are many websites where files can be legally downloaded (i.e. not obtained through sharing on a P2P network) in return for payment. We are not at liberty to recommend any site. There are many websites where files can be downloaded (but not shared) legally. In music, iTunes is an obvious example.
With file-sharing services, even more care should be taken. Although file-sharing websites may claim that it is legal to download their software, using their software to upload or download files will almost always involve infringing a third party’s copyright. Paying for P2P software (although we do not believe a charge is usually levied) does not legitimise any uploading or downloading of files which would otherwise be illegal.
I didn’t know file-sharing was illegal. Why should I have to pay for my mistake?
Ignorance of the law is no excuse, otherwise no-one could ever successfully be prosecuted if that was a valid defence. Recent research has shown that seven out of ten people are aware that file-sharing of copyright material belonging to another is illegal.
Most P2P networks do not appear to be adequately explaining to users that making files available to other users over the network is likely to be illegal if the work concerned is protected by copyright. The creative industries are working hard to raise awareness of this.
How does the legal process work?
Copyright owners are only able to identify copyright infringement from the IP (internet protocol) address (or unique number) of the internet connection identified as being connected with the infringement at the relevant time. The rights owner then has to go to court to obtain an order requiring the relevant internet service provider (or ISP) to disclose the name and address of the owner of the internet account related to the identified internet connection.
A copyright owner will then either write to the individual concerned to investigate the claim personally or through an agency. This correspondence, depending on the response received (if any) after the first letter, may provide an opportunity to settle the claim for a fixed amount. In the event settlement cannot be reached, a rights holder will consider issuing formal legal proceedings through a law firm. This will usually be by way of a nominal payment for damages, legal and ISP costs (usually around £600-£800 in total) involved in obtaining details of the IP address and writing to that person. That person will then have an opportunity either to settle our client’s claim or to make written submissions as to why he or she considers that they are not responsible for the infringement concerned.
If an individual decides not to settle our client’s claim and we consider from all the evidence that that person may still be responsible for the infringement, we will have no alternative but to take our client’s instructions with a view to issuing proceedings by using a law firm. If this happens, a much larger sum for costs may be awarded against the person concerned, in addition to any damages, should this matter proceed to court and our client is successful in its claim.
Is it illegal to obtain personal data relating to the IP address of the infringer?
The IP address of the internet connection of any person file-sharing on a P2P site is visible to our client’s investigators and is therefore in the public domain already. The name and postal address relating to that IP address is held under a duty of confidentiality by the internet service provider concerned and is not normally disclosed without the copyright owner obtaining a court order against that ISP, known as a Norwich Pharmacal order. An ISP is legally obliged to provide this information, once a court order has been obtained. Please note it is perfectly legal for a copyright owner to obtain disclosure of personal data, provided it can establish that an infringement of its copyright may have occurred, under an exception set out in section 35 of the Data Protection Act.
How much file-sharing do I have to do to be at risk?
Even sharing one file belonging to a copyright owner and without its consent is illegal, and there is no minimum number that will avoid legal action. Obviously, sharing a large number of files will put a user at greater risk of being caught (and therefore of legal action) than one who only does it on a single occasion, but no distinction between a single or serial uploader is usually made in terms of a copyright owner’s decision to take legal action.
Why are your clients suing its customers?
A customer is somebody who buys something from a business. Somebody who takes goods from a company (and worse still, shares them with other people) is not a customer of that business, and never will be. It’s a bit like going into a bar and, when the barman is not looking, leaning over the bar, grabbing a few bottles of beer, and handing them out to your friends.
Can a child be liable for copyright infringement?
Whilst there is no official age below which copyright infringement becomes legal, the courts will generally not recognise a child below a certain age of being capable of understanding the effect of what it is doing.
If the holder of the internet account claims that a young child in their household was responsible for the copyright infringement concerned, it is possible that our client may seek to hold the parent or guardian responsible on the basis that the account holding parent or guardian should have been supervising the activities of the child. It is therefore very important that a parent or guardian supervises a child’s use of the internet to ensure that it is not carrying out any illegal activity.
Are these Proceedings Criminal?
In the event our clients instruct a law firm to bring formal legal proceedings against file sharers of copyrighted works, they will be civil proceedings. It is possible to bring criminal, rather than civil, proceedings against an individual for copyright infringement, but unless the infringement is wide scale and caused substantial harm, our client does not intend to pursue criminal proceedings.
Why don’t you shut the illegal file-sharing websites?
Action continues to be taken around in the world (including in the United Kingdom) against illegal file-sharing sites and we also receive instruction from clients from time to time to remove copyrighted content from those websites. This does not however change the fact that uploading copyright material is contrary to law, and one of the best ways to bring this to the public’s awareness is to pursue actions against individuals to ensure that people know what the law is.
What is the best way to avoid being caught file-sharing?
By buying the copyright work you desire at a retail store or online is the best way to avoid being pursued by rights-owners.
Why don’t the creative industries supply to file-sharing networks?
Many creative industries are very interested in P2P as a distribution technology, provided it can be employed in way that allows developers, publishers and producers to be paid for their work and to stay in business. Now that technology is available that can filter out unlicensed content, copyright holders are looking very closely at ways in which their copyright materials can be file-shared legally.