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Fighting the file-sharing war through notice-and-takedown regimes: Plunging a sword of copyright through the heart of freedom of expression on the Internet

Document Cited authorities 4 Cited in Related
AuthorThomas Southey Capel
Pages51-75
S.S.L.RFighting the file-sha ring w ar th roug h not ice-and-takedown
51
Vol.2
Fighting the file-sharing war through notice-and-
takedown regimes: Plunging a sword of copyright
through the heart of freedom of expression on the
Internet
Thom as Sou they Capel
The evolution of the Internet and technology that facilitates copying
and shar ing of copyr ight material has presen ted ch allenges to cop yright
holders. This paper looks at the use of notice-and-takedown regim es as
a method of copyright enforcement against file-sh arin g technologies.
The topic is characterised as one of conflicting interests, between the
right holders’ economic interests in their copyright, and the file-
sharers’ free expression interests. The notice-and-takedown procedure
further muddies this picture by introducing a third stakeholder, the
Internet Service Provider (‘ISP’). An argument is constructed on the
basis of the following thesis: the notice-and-takedown approach to
copyright enforcem ent disproportionately values the rights of copyright
holders ah ead of the valu es of freed om of expr ession.
In addressing that thesis, the traditional justifications for copyright are
exam ined, with th eir relevance in today’s content in dust ries question ed.
A concept ion of copyright based on instru mentalist id eals, underp inned
by social requirement, is put forward. The paper next analyses the
notice-and-takedown regimes in action in the United Kingdom and
United States of America in the context of their respective freedom of
expression laws. In this regard it is concluded that the regimes
disproportionately value the rights of copyright holders ahead of
freedom of expression interests. An argument is made as to why the
balance should be redressed in favour of freedom of expression. This
will be supported by an analysis of the legitimacy of notice-and-
takedown procedures, focussing on the role played by ISPs, and
questioningthe role of copyright as a destructive sword of ‘immaterial
imperialism’. The discussion here takes into account a broader range of
considerations, examining the legitimacy of the procedures in the light
of concerns about the overall regulation of the Internet. The theme in
this part of the argument is one of policy, and the legitimacy of
copyright as a tool to suppress the development of technology. The
paper is characterised by the notion of ‘creative capital’ and economic
[2012] Sou tha mpto n Stud ent Law Review
52
Vol. 2
interests conflicting with in terest s of freedom of exp ression. This them e
follows into the closing recommendation of market reform as a
constru ctive solu tion to the ‘file-sh arin g war’.
Introduction
‘The gr eatest constr aint on you r future lib erties m ay com e not from
gov ernm ent but from corporate legal depar tments laboring [sic] to p rotect
by force w hat can no longer be pr otected by practica l efficien cy or general
socia l consen t.’John Per ry Barlow.
he concept of copyright is centuries old, and yet it has never faced a
cha llengeas great as that posed by the Internet. Much like copyright
itself, this intangible, evolving concept has not reached the point where
its limits can or should be defined, but its facilitation of communication and
shar ing of id eas and cu lture, both copyr ight prot ected an d not, appe ars t o be at
odds with the protection granted by this intellectual property (‘IP’) right. A
highly emotive issue in contemporary society, copyright infringement through
file-sharing sees a clash of ideals and rights between right holders and file-
shar ers.
The idea for this paper stems from the landmark judgment of the High Court
in Twentieth Century Fox v BT (‘Newzbin2’), whereby a group of Hollywood
studios were granted an injunction to force BT to block a file-sharing website,
Newzbin2. This case represents the first time a British Internet Service
Provider (‘ISP’) has been ordered to block such a site. It brings many issues to
the fore, but I wish to focus on the function of copyright in such notice-and-
takedown orders. The legitimacy of this apparent court-ordered censorship of
the Internet and the nature of Internet regulation will also be discussed. The
result of the case appears to place the copyright rights of the studios ahead of
the principles of freedom of expression, which I submit underpin the very
existence and purpose of the Internet and copyright. As such, this paper will
proceed on the basis of the following hypothesis: the notice-and-takedown
approach to copyright enforcement disproportionately values the rights of
copyright holders ahe ad of the values of fr eedom of expression .
In order to address this hypothesis, I will first put forward a conception of
copyright that I suggest is most appropriate in the digital age (Chapter I). In
Chapter II I will examine the law relating to ISP liability for copyright
infringement in America and the United Kingdom, and in particular the
implementation of their notice-and-takedown mechanisms in combating file-
shar ing sites. Cha pter III will see the discussion s of the preceding two ch apters
tied together in order to examine where the balance of freedom of expression
T

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