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Intellectual Property Law -Time to walk the plank?

Forget Johnny Depp look-alikes, with peg-legs, parrots, and long, bushy beards - pirates nowadays aren't so stereotypical. Apart from the pirates that plague the waters in the Malacca straits and the coast of Somalia, pirates have also infiltrated the web - downloading films and music.

Online piracy has long been targeted for the downfall of the music industry, and more recently for the decline in film distribution. Why bother going out to the shops when you can download the same thing from home? Well, just because it's comfortable doesn't make it right. Copyright law protects authors and producers of works (such as films and songs) from having their work copied and distributed without their consent.

So just in case you're thinking about it, yes, downloading creates copies of the work on your computer. These copies, usually, are not authorised by the owner of the copyright. Moreover, if you use peer-to-peer (P2P) networks you are making the work available to others to copy. That's a double whammy: double copyright infringement, exposing you to a two-pronged attack from the copyright holders, and believe you me they are hungry for your blood!

Cases against sites which facilitate downloading started in the US in 2001 with the case against Napster. Since Napster used a central server on which all music files were stored, it was an easy task for the prosecution to show the direct link to copyright infringement. Two years later it was the turn of Grokster, the peer-to-peer file-sharing site, again in US courts. This time there was no central server - Grokster provided and marketed software which gave access to other peers and their files - file sharing.

The prosecution stated that although the technology could have been used to swap files not protected by copyright, that was done very rarely, with approximately 90 per cent of files shared on Grokster being downloaded illegally. This, together with the element of commercial gain on Grokster's part, led the court to conclude that the main purpose of the software was to abet copyright infringement - therefore Grokster was shut down.

The European copyright scene is now waiting for the outcome of the Swedish case against the website The Pirate Bay - which directs users to connect with other file-sharers through so-called torrent files to download content. According to the International Federation of the Phonographic Industry, the Pirate Bay is the largest site of its kind, with 22 million users.

The four defendants are involved in running the site, and were originally accused of contributing to copyright infringement. However, prosecutors had to drop the charge due to lack of evidence. They are now prosecuting on the charge of "assisting making available copyright material". The making available, even by wire or wireless means, of works owned by others is illegal throughout the EU. If convicted the four each face up to two years in prison, US$180,000 in fines plus millions in damages.

The defendants argue that their site does not violate any laws because it does not host any copyrighted material, but merely offers a passive search function. The main thrust of this defence is that all they do is offer the technology and are not liable for how the site's users use the technology. This kind of argument was used successfully in the past both in the US and Europe when copyright owners were enraged at the emergence of new copying technologies - such as the double-deck cassette player and video-cassette recorders.

These older cases were defended successfully on the grounds that the technology was not meant for the carrying out of illegal acts and that what "might" happen is not the same as condoning or authorising it. However, this argument was dismissed in Grokster because the court saw that the software's purpose was to ease sharing copyrighted material. One wonders if this argument will work for Pirate Bay, especially now that the charge is, essentially, for making copyrighted works easily available to those wishing to download them.

The trial was wrapped up at the beginning of March, but the verdict isn't expected until mid-April. The US approach has been to sue the pirates, with studios suing thousands of people, mostly students. However, thanks to the EU's strong privacy laws, it does not seem as though Europe will follow suit. But where does that leave us, especially here in Malta where sites for legal downloading are not accessible?

• Dr Rizzo is an associate at Fenech & Fenech Advocates.
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