Edited by Alain Strowel
Chapter 2: Legal issues in peer-to-peer file sharing, focusing on the making available right
Michael Schlesinger* The Internet must not become a high-tech Wild West, a lawless zone where outlaws can pillage works with abandon or, worse, trade in them in total impunity. – Nicolas Sarkozy, President of France I think the failure of ISPs to engage in the fight against piracy, to date, has been the single biggest failure in the digital music market. – Paul McGuinness,1 manager, U2 OVERVIEW Peer-to-peer file sharing has had a profound effect on the copyright industries in recent years, especially the music industry, creating legal questions surrounding liability for illegal distribution of copyright materials online. Indeed, in many countries, existing exclusive rights under copyright, or slightly modified rights, comprise all the chief activities undertaken in the course of a P2P transaction – largely through implementation of the interactive ‘making available’ * Michael Schlesinger is Of Counsel to the law firm of Greenberg Traurig LLP in Washington, DC. Mr. Schlesinger also serves as Professorial Lecturer in Law at George Washington University School of Law and is a Lecturer at the Munich Intellectual Property Law Center (MIPLC). He represents the International Intellectual Property Alliance (IIPA). The views expressed in this chapter are solely those of the author, and are not necessarily endorsed by Greenberg Traurig LLP, GWU School of Law, MIPLC, or the IIPA. Mr. Schlesinger can be reached at SchlesingerM@gtlaw. com. 1 One more quote could be added to these, that of John F. Smith, President, International Federation of Musicians (FIM): ‘ISPs are the gatekeepers of the Internet – they have...
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