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

AuthorThomas Southey Capel
S.S.L.R Fighting the file-sha ring w ar th roug h not ice-and-takedown
Fighting the file-sharing war through notice-and-
takedown regimes: Plunging a sword of copyright
through the heart of freedom of expression on the
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-an d-takedown regim es as
a method of copyright enforcem ent against file-sh arin g technologies.
The topic is characterised as one of conflicting interests, bet ween the
right holders’ econom ic interests in their copyright, and th e file-
sharer s’ free exp ression int erests. Th e notice-and-takedown procedur e
further mu ddies this picture by introducing a thir d stakehold er , the
Internet Service Provider (‘ISP’). An argum ent is constructed on t he
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 addr essing that thesis, the traditional justifications for copyright are
exam ined, wit h 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 requirem ent , is pu t forward. The pap er next analyses the
notice-and-takedown r egimes in action in the United Kingdom and
United States of America in the context of their respective freed om of
expression laws. In this regard it is con clu ded that the regim es
dispr op ortion ately value the rights of copyr igh t holders ahead of
freedom of expression interests. An argument is made as to why the
balan ce should be redr essed in favour of freedom of expression. This
will be su pported by an an alysis of the legitimacy of n otice-an d-
takedown procedur es, focussin g on the role played by ISPs, and
questioning the role of copyright as a destru ctive swor d of ‘imm aterial
imperialism’. The discussion here takes into account a broader range of
consid erations, exam ining the legitimacy of the procedures in the ligh t
of concerns about the overall r egu lation of the Intern et. Th e them e in
this part of the argu m ent is one of policy, an d the legit im acy of
copyrigh t as a tool to suppress the developm ent of technology. The
paper is characterised by the notion of ‘creative capital’ and econ omic
[2012] Sou tha mpto n Stud ent Law Review
Vol. 2
interests conflicting with in terest s of freedom of exp ression. This them e
follows into the closing recom m endation of m arket reform as a
constru ctive solu tion to the ‘file-sh arin g war’.
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 concep t of copyright is cen turies old, an d yet it h as never faced a
cha llenge as great as t hat posed by the In ter net. Much like copyright
itself, t his in tangible, evolving con cept has not reached the point where
its limits can or should be defined, bu t its facilitation of communicat ion and
shar ing of id eas and cu lture, both copyr ight prot ected an d not, appe ars t o be at
odds wit h the protection gr anted by this intellectu al property (‘IP’) right. A
highly emotive issue in cont emp orary society, copyright infringem ent through
file-sharing sees a clash of ideals and rights between right holders and file-
shar ers.
The idea for this pap er stems from the landmark ju dgment of the High Cou rt
in Twentieth Century Fox v BT (‘Newzbin2), whereby a group of Hollywood
stu dios were granted an in junction to force BT to block a file-sh aring website,
Newzbin2. Th is case represents the first tim e a British Int er n et Service
Provider (‘ISP’) has been order ed to block such a site. It brings many issues to
the fore, but I wish to focu s on the fun ction of copyright in such notice-and-
takedown orders. Th e legitimacy of this apparent court-ordered cen sorship of
the Intern et and the nature of Internet regulation will also be discussed. The
result of th e case appear s to place the copyright rights of the studios ahead of
the principles of freedom of expression, wh ich I subm it underpin the very
exist ence an d purpose of the Int er net and copyright. As such, this paper will
proceed on the basis of the following hypothesis: the not ice-an d-takedown
appr oach to cop yright enforcem ent disproportionately values th e r igh ts of
copyright holders ahe ad of the values of fr eedom of expression .
In order to addr ess this hypothesis, I will first put forward a con ception of
copyright that I suggest is most appropriate in the digital age (Chapt er I). In
Chapter II I will exam in e the law relating to ISP liabilit y for copyright
infrin gement in Amer ica and the United Kingdom, and in par ticular the
implementation of their notice-and-takedown mech anism s 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 wh ere th e balan ce of freedom of expression

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