International
campaign against file-sharing:
Legal
actions taken against song-swappers in Denmark, Germany, Italy, and Canada
On March 30, 2004, the International Federation of the Phonographic Industry (IFPI) announced that legal actions against 247 alleged illegal file-sharers have been taken in Denmark, Germany, Italy, and Canada by the national recording associations on behalf of their member record companies, and in some cases by record labels. According to IFPI’s website, this is the first wave of international lawsuits outside the U.S.
While the Recording Industry Association of America (RIAA) has sued over 2.000 American music file-sharers over the past few months, the European recording industry has seemed more reluctant to bring lawsuits. Though the European industry has frequently mentioned a desire to start a campaign similar to the U.S. lawsuits, prior to today, it has relied on alternative strategies like using DRM for content protection, promoting public awareness through education campaigns about the illegality of file-swapping, and co-operating with ISPs in order to close down illegal music offers on websites.
The recent change in the European industry’s strategy may be
seen as a sign that other strategies failed to stop or significantly reduce the
unauthorized distribution of music over P2P networks. Moreover, the tough approach taken by the RIAA seems to be considered
as successful abroad. The European
record associations are following the RIAA’s example by taking legal actions
against people making available a large number of files on popular file-sharing
networks such as Kazaa, or WinMX, eMule, and iMesh. According to the IFPI website,[1]
the campaign targets individuals who have offered between a few hundreds and
54.000 music files on file-sharing services.
Due to
different regulatory and legal regimes across Europe, the proceedings are at
different stages: CNN reports[2]
that Danish authorities have obtained the identities of alleged copyright
infringers, while the industry in other countries must ask courts to issue
subpoenas to the ISP’s in order to reveal their subscribers’ names. In some cases, under German law, the music
industry must even initiate a criminal investigation against file-sharers in
order to get the names of users behind the IP addresses, since German law does
not include a DMCA-like subpoena provision. Because the European nations have different legal procedures and
remedies, the nature of the legal actions taken against individual file-sharers
varies significantly from country to country. According to the IFPI, the
following actions have been taken so far:[3]
– More than 120 Danish file-sharers are being sent civil demand letters asking them either to stop illegal file sharing and pay compensation, or face legal action.
– 68 German file-sharers have been reported to law enforcement authorities pursuant to criminal complaints for alleged peer-to-peer infringement.
–
30 Italian users have been charged with copyright
infringement. The Public Prosecutor's office in Milan ordered criminal raids,
and a special unit of the Fiscal Police has seized computers, hard discs and
storage systems, and files as evidence.
–
29 Canadians will face copyright infringement claims
following court proceedings for disclosure by their internet service providers
of their identification.
Precursors
of this shift in strategy were evident earlier this year when German and
Italian authorities conducted large-scale raids to find evidence of Internet
piracy operations. On March 25, finally, the British Phonograph Industry issued
legal warnings to the nation’s most prolific online song swappers.[4]
Moreover, the adoption of the EU Copyright Enforcement Directive by the European
Parliament, although not yet an enforceable statute, has been regarded as
another indicator of an increasing likelihood that legal actions against
significant copyright infringements may be taken.
It remains to be seen what the legal effects of
the international campaign will be. Structural barriers such as high
burdens of proof on plaintiffs or limited damages may make litigation unlikely
to succeed. Further, it should be noted that copyright laws
in Europe are harmonized, but by no means identical. Differences in detail—e.g. with regard to fair dealing or private
copying exemptions—exist, and it is an open question how such differences play
out before national courts in the present context. Moreover, stronger
privacy legislation aimed at protecting users’ communication data might hamper
the identification of file-sharers. In
practice, though, it seems unlikely that most of the cases will go to trail;
for a majority of cases one might expect private settlements.
Against this backdrop, one might see the legal
campaign pursued by the IFPI, at least as far as Europe is concerned, as
“symbolic actions” that are designed to send a strong message out to users of
current P2P networks as well as presumptive users of existing and upcoming
online music stores. It remains to be seen how this message will be perceived
by European music consumers and the public at large, and how it will affect
consumers willingness to make use of industry-promoted music stores.
March 30,
2004
[1] http://www.ifpi.org/site-content/press/20040330.html.
[2] http://www.cnn.com/2004/TECH/internet/03/30/music.lawsuits.reut/index.html.
[3] http://www.ifpi.org/site-content/press/20040330.html.
[4] http://news.com.com/2100-1026-5179121.html, and http://news.findlaw.com/ap/ht/1700/3-25-2004/20040325053003_33.html