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The proliferation of high-speed internet connections has given rise to a growth in the popularity of peer-to-peer file sharing. Although file sharing is a legal technology with legal uses, many users utilise it to download and upload copyrighted material. This will constitute copyright infringement if no prior authorisation has been sought and given by the proprietor of the copyright to permit such activity.

There have been numerous decisions which address the complex issues of the need to protect new technologies and the need to provide remedies against copyright infringement. However, a notable problem is of enforcement; the unauthorised sharing of copyright material is such an ingrained and entrenched practice now that those bodies with a vested interest in obstructing such practice cannot feasibly hope to prosecute every culpable individual.

It has recently emerged that secondary liability for peer to peer file sharing is possible. In MGM v Grokster the United Sates Supreme Court held that producers of technology who promote the ease of infringing on copyrights can be sued for inducing copyright infringement committed by their users.

Under US law, the ‘Betamax decision’ (Sony Corporation of America v Universal City Studios Inc) holds that copying technologies are not inherently illegal, if substantial non-infringing use can be made of them.

Although this decision pre-dated the widespread use of the internet, in Grokster, the Supreme Court acknowledged the applicability of the Betamax case to peer to peer file sharing. It held that the networks could not be held liable for merely providing the technology without proof that they had engaged in ‘inducement’.

In the European Union, the 2001 EU Copyright Directive, which implemented the 1996 World Intellectual Property Organisation Copyright Treaty, prohibits peer to peer file sharing, claiming it is a violation of the directive. However, not all European member states have implemented the directive in national legislation. Accordingly, file sharing in the context discussed remains a lacuna in the law, and such practices continue to be a burden on the commercialisation of copyright material, most obviously in regard to the music industry.

That said, some bands have recently experimented with using the file sharing culture to their advantage; for example, Radiohead recently released an album that was downloadable free of charge (with consumers being given an option to make a financial contribution for purchase if they wished). In the absence of legal reform restricting the use of unauthorised downloading of copyright material, it is likely that such experimentation will continue.