Chapter 5: Global networks and domestic laws: some private international law issues arising from Australian and US liability theories
Graeme W. Austin INTRODUCTION ‘[S]ervices that employ peer-to-peer technology create vast, global networks of copyright infringement’,1 observed the United States Register of Copyrights in a recent Congressional hearing on copyright law. While the networks are global, the law applicable to P2P networks remains tethered within domestic borders. Even so, the application of the law may have significant extraterritorial effects. This chapter explores the international character of the emerging law on P2P networks in two common law jurisdictions: Australia and the United States. P2P networks are ‘global’ in many respects. Users of P2P products and services are present in many different jurisdictions. Technology entrepreneurs and their business partners are often geographically dispersed, and business structures can be ‘split’ to leverage advantages provided by different national legal systems. And the digital content, whose ‘sharing’ is facilitated by these products and services, regularly traverses back and forth across international borders. The global character of P2P networks makes it helpful to consider some of the private international law issues that may be raised by liability theories that are emerging in the P2P context. The discussion in this chapter focuses on three recent cases: two from the Federal Court of Australia, the 2005 decision in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd,2 and the 2006 decision of the Full 1 ‘Protecting Innovation and Art While Preventing Piracy: Hearing on s 2560, The Intentional Inducement of Copyright Infringement Act of 2004, Before the Subcommittee on the Judiciary’, 109th Cong (2004)...
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