Protection of Copyright in Cyberspace

3.1 Concept, Acts and Uses in the Internet and their Copyright
Implications

The internet has revolutionized the way we access and share

information, but it has also created new challenges in protecting
intellectual property rights, particularly copyrights. Copyright
protection applies to original literary, artistic, and musical works,
as well as computer software and databases.

Acts and uses on the internet that may have copyright implications
include:

1. Downloading: Downloading copyrighted material, such as

music, movies, or software, without permission from the
copyright holder is considered copyright infringement.

2. Uploading: Uploading copyrighted material to websites, file-

sharing networks, or online platforms without the copyright
holder's consent is also an infringement.

3. Streaming: Streaming copyrighted content, such as live

broadcasts or on-demand movies, without proper licensing or
authorization from the copyright holder is considered
infringement.

4. Linking: Providing links to copyrighted material hosted on

another website may be considered contributory infringement
if the person providing the link has knowledge of the infringing
activity.

5. Caching: Temporary copies of copyrighted material stored in

the cache of a computer or server may also constitute
infringement in certain circumstances.

6. Framing: Embedding copyrighted content from another website

within a frame on your own website without permission may
be considered infringement.

3.2 Right of Reproduction of work on the Internet

The right of reproduction is one of the exclusive rights granted to

copyright holders under copyright law. In the context of the
internet, reproduction occurs whenever a copy of a copyrighted
work is made, even temporarily, in the process of accessing,
transmitting, or displaying the work online.

Examples of reproduction on the internet include:

1. Downloading: Downloading a copyrighted file, such as a music

track or an e-book, creates a copy on the user's device.

2. Caching: Web browsers and proxy servers often create

temporary copies (caches) of web pages and other online
content to improve efficiency and speed.

3. Uploading: Uploading a copyrighted work to a website or

online platform creates a copy on the server.

4. Streaming: Streaming media, such as videos or audio, involves

making temporary copies in the user's device and the servers
involved in the transmission process.

Copyright holders have the exclusive right to authorize or prohibit

the reproduction of their works, including in digital form on the
internet. Unauthorized reproduction of copyrighted works
constitutes infringement, unless it falls under exceptions or
limitations, such as fair use or specific statutory exceptions.

3.3 Liability of Internet Service Providers

Internet Service Providers (ISPs) play a crucial role in facilitating

access to the internet and transmitting data, including copyrighted
material. However, their liability for copyright infringement by their
users is a complex issue that has been addressed by various legal
frameworks and court decisions.

Generally, ISPs can be held liable for copyright infringement in the

following situations:

1. Direct Infringement: If an ISP directly infringes on a

copyrighted work, such as by reproducing or distributing
copyrighted material without permission, it can be held
directly liable for infringement.

2. Contributory Infringement: An ISP may be liable for

contributory infringement if it has knowledge of infringing
 activities occurring through its services and induces, causes,
or materially contributes to the infringement.

3. Vicarious Liability: An ISP may be vicariously liable for

infringement by its users if it has the right and ability to
supervise and control the infringing activities and derives a
direct financial benefit from the infringement.

However, many jurisdictions have implemented safe harbor

provisions or limitations on liability for ISPs to encourage the
development of online services and promote the free flow of
information. These provisions typically require ISPs to meet certain
conditions, such as implementing a notice-and-takedown system,
terminating repeat infringers, and accommodating standard
technical measures to protect copyrighted works.

3.4 Copyright in the Music Industry

The music industry has been significantly impacted by the internet

and digital technologies, both in terms of challenges and
opportunities. Copyright protection plays a crucial role in
safeguarding the rights of artists, composers, and record labels in
the digital age.

Key aspects of copyright in the music industry include:

1. Reproduction Rights: The exclusive right to reproduce

copyrighted musical works, including making copies for
distribution, streaming, or downloading.

2. Public Performance Rights: The exclusive right to publicly

perform or broadcast copyrighted musical works, including
through digital platforms and streaming services.

3. Synchronization Rights: The exclusive right to incorporate

copyrighted musical works into audiovisual productions, such
as movies, TV shows, or video games.

4. Digital Rights Management (DRM): The use of technological

measures to control access and usage of copyrighted digital
music files, often implemented by record labels and online
music platforms.
 5. Online Music Licensing: The licensing of copyrighted musical
works for various online uses, such as streaming, downloads,
and interactive services, often through collective management
organizations or direct licensing agreements.

6. Piracy and Illegal File-Sharing: The unauthorized distribution

and sharing of copyrighted music files through peer-to-peer
networks, torrent sites, or other means, which remains a
significant challenge for the music industry.

The music industry has adapted to the digital age by developing

new business models, such as subscription-based streaming
services, while also relying on copyright laws and enforcement
measures to protect their intellectual property rights.

3.5 Concept of Copyright Protection in U.S.A.-Digital Millennium

Copyright Act: Fair Use and Safe Harbor

The Digital Millennium Copyright Act (DMCA) is a crucial piece of

legislation in the United States that addresses copyright protection
in the digital age, including the internet and digital technologies.

Fair Use: The DMCA recognizes the principle of fair use, which
allows for the limited use of copyrighted material without
permission from the copyright holder for purposes such as criticism,
comment, news reporting, teaching, scholarship, or research. Fair
use is determined by considering factors such as the purpose and
character of the use, the nature of the copyrighted work, the
amount and substantiality of the portion used, and the effect of the
use on the potential market for the copyrighted work.

Safe Harbor Provisions: The DMCA includes safe harbor provisions

that limit the liability of online service providers (OSPs) for
copyright infringement by their users, provided that certain
conditions are met. These safe harbor provisions apply to OSPs that
act as mere conduits for transmitting data, caching providers,
hosting providers, and information location tools (search engines).

To qualify for the safe harbor protections, OSPs must meet the
following requirements:
 1. Adoption and Implementation of a Repeat Infringer Policy:
OSPs must have a policy in place to terminate the accounts of
repeat copyright infringers.

2. Designation of an Agent to Receive Notifications of Claimed

Infringement: OSPs must register an agent with the U.S.
Copyright Office to receive notifications of claimed
infringement from copyright holders.

3. Accommodating Standard Technical Measures: OSPs must

accommodate and not interfere with standard technical
measures used by copyright holders to identify or protect
copyrighted works.

4. Expeditious Removal of Infringing Material upon Notification:

Upon receiving a proper notification of claimed infringement
from a copyright holder, OSPs must act expeditiously to
remove or disable access to the infringing material.

5. No Direct Financial Benefit from Infringing Activity: OSPs must

not receive a direct financial benefit from the infringing
activity if they have the right and ability to control such
activity.

The DMCA's safe harbor provisions aim to balance the rights of

copyright holders and the interests of online service providers,
fostering the growth of the internet and digital technologies while
providing mechanisms for addressing copyright infringement.

Q. The defendant, Mowaza, facilitated through a

peer-to-peer file sharing process the transmission
and storage of audio recordings on the internet.
The plaintiffs are corporations engaged in the
commercial recording, distribution and sale of
copyrighted music and sound recordings, and have
brought a copyright infringement action alleging
that defendant was a contributory and vicarious
copyright infringer. The suit is pending with the
District Court of U.S. Decide the pending case with
relevant provisions and decided case laws if any.

To decide the pending case involving Mowaza's

alleged contributory and vicarious copyright
infringement through peer-to-peer file sharing, I
will consider relevant provisions of U.S. copyright
law and case precedents.

Relevant Provisions:

1. Copyright Act of 1976 (17 U.S.C. §101 et seq.):

o Section 106: Exclusive rights of copyright

holders, including the rights to reproduce,
distribute, and perform copyrighted works.

o Section 501: Infringement of copyright.

2. Digital Millennium Copyright Act (DMCA) (17

U.S.C. §512):

o Section 512(c): Safe harbor provisions for

online service providers (OSPs) regarding
liability for hosting infringing content,
subject to certain conditions.

o Section 512(d): Safe harbor provisions for

OSPs regarding liability for linking or
referring to infringing content, subject to
certain conditions.

Relevant Case Laws:

 1. Sony Corp. of America v. Universal City
Studios, Inc., 464 U.S. 417 (1984): This case
established the "substantial non-infringing
use" defense for contributory infringement,
where a product or service is capable of
substantial non-infringing uses.

2. A&M Records, Inc. v. Napster, Inc., 239 F.3d

1004 (9th Cir. 2001): In this case, the court
held that Napster could be liable for
contributory and vicarious copyright
infringement for facilitating the sharing of
copyrighted music files through its peer-to-
peer file-sharing service.

3. Metro-Goldwyn-Mayer Studios Inc. v. Grokster,

Ltd., 545 U.S. 913 (2005): The Supreme Court
established the "inducement rule" for
contributory infringement, where a party can
be liable if they actively encourage or induce
infringement.

4. Capitol Records, LLC v. Vimeo, LLC, 972 F.

Supp. 2d 500 (S.D.N.Y. 2013): This case
examined the applicability of the DMCA safe
harbor provisions to a video-sharing platform
and provided guidance on the requirements for
qualifying for safe harbor protection.

Analysis:
Based on the allegations, Mowaza facilitated the
transmission and storage of copyrighted audio
recordings through a peer-to-peer file-sharing
process without authorization from the copyright
holders (the plaintiffs). This prima facie
constitutes direct copyright infringement by
Mowaza's users.

To determine Mowaza's liability for contributory

infringement, the court would likely consider the
following factors:

1. Knowledge of infringing activity: If Mowaza

had knowledge or was aware of the infringing
activities occurring through its service, it
could be liable for contributory infringement.

2. Material contribution: By facilitating the peer-

to-peer file sharing process, Mowaza may be
considered to have materially contributed to
the infringing activities.

3. Inducement: The court would examine whether

Mowaza actively encouraged or induced users
to engage in copyright infringement through its
service.

4. Substantial non-infringing use: Mowaza may

argue that its service has substantial non-
infringing uses, following the Sony doctrine, to
avoid liability for contributory infringement.
For vicarious liability, the court would consider:

1. Right and ability to supervise: Whether

Mowaza had the right and ability to supervise
or control the infringing activities of its users.

2. Direct financial benefit: Whether Mowaza

derived a direct financial benefit from the
infringing activities, such as through
advertising revenue or subscription fees.

Mowaza may attempt to invoke the DMCA safe

harbor provisions to limit its liability, but it would
need to demonstrate compliance with the required
conditions, such as implementing a repeat
infringer policy, designating an agent to receive
infringement notices, and expeditiously removing
infringing content upon proper notification.

Ultimately, the court's decision would depend on a

careful evaluation of the facts, the nature of
Mowaza's service, and its level of involvement in or
knowledge of the infringing activities, as well as
its compliance with the DMCA safe harbor
requirements, if applicable.

Given the similarities to cases like Napster and

Grokster, where peer-to-peer file-sharing services
were found liable for contributory and vicarious
infringement, the court may rule in favor of the
plaintiffs if Mowaza cannot adequately defend
against the allegations or establish safe harbor
protection under the DMCA.