Taking Down Bit Torrent Website:
Not an Effective Solution for Copyright Infringement
LL.M. Dissertation (Summer 2009)
University ofAberdeen
By
Chanehai Arreewittayalerd
Student~:08993886
Introdumsm
.A.l1egedly, over 90 percent of global internet bandwidth has been used for peerpto-peer
file-sharing l • Arguably, most of the files shared on peer-to-peer are illegal copies of
copyrigbted materials, including films and music tracks2 • Napster was alleged that it
distributed songs more than music industry had ever done since its existence3. There exists an
opinion ':hat suing individual infringers is a 'teaspoon of solution to an ocean problem4l • Some
courtS states that bringing lawsuits against file-sharing service providers6 were the 'only
practical' way to enforce copyright Entertainment industry has been trying many other
solutions7, including educating internet users copyright laws, putting low quality copies of
copyrighted contents into peer-to-peer network and suing direct individual infringers, thus
ended up on suing those service providers as it seems to be the best solution for them. It
eventually became the trend of entertainment industry to enforce its copyright by bringing
lawsuit against persons who operate websites providing peer-to-peer file sharing service.
Lawsuits of entertainment industry against The Pirate Bay and Columbia Pictures against
ISOHum.comll are recent examples of this ongoing trend.
At first glance, it seems clearly rational as these web sites more or less facilitate or
involve in infringing activities. However, taking down file sharing websites (FSW) is more
complicated and need more scrutiny than it seems especially in an area where current legal
framework cannot apply. Because, by introducing new legal principle, it affects not only
1 Daniel Emery, 'Cash for Pirate Bay file-sharers' (1 July 2009) .
5 Metro-Goldwyn-Mayer Studios, Inc., et al. v. Grokster; Ltd, et aI., 545 U.S. 913 (2005).
6 Becaw,e of the successful outcomes ofthis kind oflawsuit are often a large amount of damages, the service
provid.:rs are effectively forced to shut down, thus bringing this kind of lawsuit is usually referred to as
'taking down' [the service providers.]
7 Robert P. Merges, Peter S. MeneH & Mark A. Lemley, 'Intellectual Property in the New Technological Age'
(4* Edition. Aspen Publishers, New YOlk 2(07), pp.608.
8 Columbia Pictures v. Gary Fung, 2007 U.S. Dist. LEXIS 97576.
those web sites, but also the public (including legitimate users of those websites) who might
be unnecessarily harmed by such principle. Most importantly, if the improper principle
stands, it will be a stepping stone for another deprivation ofrights and freedom of the public
eventually.
This paper will not argue that sharing copyrighted materials over file-sharing network
is or should be legitimate but it will argue that a FSW should not be held liable for copyright
infringement either directly or indirectly, merely because its users involve in infringing
activities using its provided facilities, especially without weighing relevant public interests
that are in conflict
Finally, this paper will be based on laws and regulations applicable to the United
Kingdom, in areas where other jurisdictions' laws are more developed, cases and precedents
of such jurisdictions will also be discussed.
Guidelines
This paper will be laid out in the following pattern:
(1) Analysing whether current legal framework can be applied to Bit Torrent
web!iites.
(2) In case that current legal framework cannot be directly applied, analysing
whether it should be extended to cover Bit Torrent website.
,GmimU Back&mund
Peer-to-Peer file-sharin~ technoloBY
Conventional file sharing on the internet is the situation when a user
downloads files from a server hosting that file. This method of file sharing requires the server
to host the entire file being shared throughout the sharing process. The biggest disadvantage