Title: Stuck in the middle: the need to refine intermediary liability for copyright infringement in the P2P file-sharing world
Authors: Helen Paterson
Addresses: Minter Ellison Lawyers, Aurora Place, 88 Phillip Street, Sydney 2000, Australia
Abstract: With the realisation that suing millions of primary infringers is relatively ineffective, the fight against online copyright piracy has turned its attention to the intermediaries who provide the tools enabling infringement. Unfortunately, the potential side effect of discouraging innovation in dissemination technologies with legitimate functions is largely ignored. This paper considers this issue from an Australian perspective, arguing that the current approach to intermediary liability for copyright infringement, 'authorising' infringement, is not achieving an appropriate balance between protecting the interests of copyright proprietors and encouraging technological innovation. It uses a case study on the hypothetical liability of BitTorrent, Inc. and the creator of the BitTorrent protocol to demonstrate this imbalance. The paper then attempts to address this issue, analysing how Australia's copyright law should be refined to ensure it does not stifle innovation in technology with beneficial, legitimate uses.
Keywords: intermediary liability; file sharing; BitTorrent; copyright infringement; online copyright piracy; infringement; intermediaries; authorisation; innovation; P2P; peer-to-peer; Australia; copyright holders; technological innovation; copyright law.
International Journal of Technology Policy and Law, 2012 Vol.1 No.1, pp.92 - 115
Received: 08 May 2021
Accepted: 12 May 2021
Published online: 18 Mar 2012 *