An historical solution to the legal challenges posed by peer-to-peer file sharing and digital rights management technology

Abstract

US cases concerning Peer-to-Peer technologies (hereafter ‘p2p’) and Digital Rights Management (‘DRM’) mechanisms have placed considerable emphasis upon the financial interests of right holders, in particular the markets for their copyright works. The reason for this is historical – courts have often emphasised the interests of the right holder, and furthermore, assumed the interests of the right holder are synonymous with encouraging new creative copyright works. However, in the context of p2p and DRM, the interests of right holders, authors, and content recipients are in pronounced conflict. For this reason, the historically market orientated approach of the courts ultimately over emphasise the interests of right holders. This paper suggests that an alternative historical approach to copyright infringement in the UK can go some way to restoring the copyright balance.