Taking Counsel: P2P File Sharing Networks 's Be Careful!

  • 2009-06-10
  • By Dace Sirme
Over a billion people are using the Internet worldwide and roughly 45 million of them are using peer-to-peer (P2P) file sharing networks. Current P2P file sharing networks are usually designed to upload or download data. They enable users to make different files publicly available 's music, films, spreadsheets 's and share them with other users in the digital environment.

Legal uncertainty in digital copyright law is a great challenge for practitioners, judges and legal scholars worldwide. Court decisions on the same matter, such as  infringement of copyright in P2P file sharing networks, may differ from jurisdiction to jurisdiction, with different conclusions. Some intellectual property rights experts advocate stricter legal measures and criminal sanctions, others argue that society's access to the P2P file sharing networks is essential for social contacts and therefore should not be restricted at all. One of the most important problems in this context is the liability question. Who should be held liable for the copyright infringement in P2P file sharing networks? The P2P file sharing software provider, the Internet access provider, the file hosting service provider, the uploader or the downloader of these files?

In Latvia there are no special laws or regulations which would determine copyright protection in the digital environment. According to the Latvian Copyright Law, the copyright gives the author, or any other person to whom the author transfers these rights, the legal authorization to control the reproduction, distribution and communication of these files to the public.

What is noteworthy is that individuals who are illegaly sharing copyrighted files in these networks expose themselves to criminal prosecution. Copyright infringers are subject to sections 148 and 149 of the Criminal Law. Both unauthorized uploading and downloading of copyright protected works is illegal.

Criminal liability is the same notwithstanding the circumstances where the offense occurred, whether in the digital or in the analog environment. There is no distinction between severe or less severe infringements of copyright.

Section 148(1) of the Criminal Law provides that "…for a person who commits intentional infringement of copyright, if such is committed by infringing the rights of the author to use of the work, or commits intentional infringement of neighboring rights, the applicable sentence is custodial arrest, or community service, or a fine not exceeding one hundred times the minimum monthly wage, with or without confiscation of property."

Consequently, it is up to the Latvian courts to determine whether to regard the copyright infringement as intentional or unintentional, whether to apply custodial arrest or community service, whether to adjust sanctions of one monthly wage or a hundred monthly wages. However, there is no minimum level of sanctions provided.

The application of such provisions to date has not been particularly widespread, as  in Latvia there are only 10 pretrial investigations currently underway, but no court decisions on the copyright infringement in P2P file sharing networks. This should not be of any comfort, however, to copyright infringers, as prosecution is on the upswing.

Access to the P2P file sharing networks is not illegal in itself, but unauthorized  uploading or downloading of  materials that are copyright protected is unlawful. The Copyright Law does not entail any specific fair use exception for the P2P file sharing networks, but Section 19 of the Copyright Law covers the use of a work of an author without the consent of the author and without remuneration. Consequently, there is no copyright infringement if a work of an author is used for informational, educational or research purposes.

 In conclusion, anyone engaged in filesharing activities should take heed of the legal implications of what they are doing.

Dace Sirme is an associate at Kronbergs & Cukste. Kronbergs & Cukste is a co-founder of Baltic Legal Solutions, a pan-Baltic legal network providing a one-stop-shop for legal services. In Lithuania, Baltic Legal Solutions is represented by Jurevicius Balciunas & Bartkus, and in Estonia, by Glikman & Partnerid.