An International-Comparative Perspective on Peer to Peer File-Sharing & Third-Party Liability in Copyright Law - Framing Past - Present and Next-Generation's Questions

Abstract

In the last few years, the phenomenon of peer to peer file-sharing and its various legal aspects have been dealt extensively by legal scholars. The purpose of this article is to take a closer inspection on several particular instances that are related to peer to peer file-sharing as a comparative, social, economic and cultural phenomenon and by doing so, to highlight at least part of the complicated web of considerations that should be taken into account in this context by courts and legislators.

The article begins by providing a critical comparative analysis of distinct paradigms that different legal systems have offered regarding the question of third-party liability for copyright infringements that occur through peer to peer file-sharing platforms. The article then turns to develop several novel insights regarding the policy considerations that should serve as copyright law's compass in the context of peer to peer file-sharing and more specifically, in the context of some of the next-generation legal questions that peer to peer platforms are already beginning to give rise to.

The article's first insight demonstrates the implications of different legal regimes of third-party liability on the extent and degree that copyright law's limitations and exceptions could be effectively utilized. It then continues by elaborating a normative argument for a requirement of compliance between the legal liability of third-parties and copyright law's exemptions and limitations.

The article's second insight focuses on the potential influence of different legal regimes of third-party liability on the allocation of risk between the positive and negative externalities that peer to peer file-sharing platforms tend to generate. After focusing on the positive spillovers that peer to peer platforms produce and the risks that broad third-party liability imposes on such spillovers, the article presents several considerations in support of a legal regime that places a higher degree of risk on the proprietary interests of copyright owners.

The article's third insight develops the notion of peer to peer file-sharing platforms as a new emerging speech resource that society has to decide upon its allocation. It begins by developing the concept of speech resources and the unique distributional concerns that the allocation of legal entitlements in speech resources give rise to. Our general observations regarding the allocation of entitlements in speech resources are then applied in the context of peer to peer file-sharing platforms, which are - so it shall be argued - a prototype example for a new emerging speech resource.

The last part of the article focuses on some of the next-generation legal questions that peer to peer networks are already beginning to give rise to. Our focus of discussion will be the legal liability of internet service providers that use active caching and routing applications for managing peer to peer traffic - an issue that thus far has not been dealt explicitly either by legislators or by courts.

Keywords: copyright, peer to peer file-sharing, third-party liability, caching, fair use