1. Copyright holders and peer-to-peer network users: an uncompromised relationship?
Archontoula Kapsi
Attorney at Law
LL.M New Technologies - Information Law
4th International Conference on Information Law
Thessaloniki, 20th & 21st May 2011

2. Introduction
23rd of January 2011, Cannes, a study conducted by HADOPI:
49% of all Internet users in France seem to use cultural content illegally
years old  70%
25-39  55%
over 40 years old  32%
4th International Conference on Information Law
Thessaloniki, 20th & 21st May 2011

3. Topics
Arguments and conflicting interests of peer-to-peer users “vis-à-vis” those of the copyright holders
In search of balance
The conviction issued by the courts
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

4. The conflicting interests
a. The technical architecture and the key to the success of peer-to-peer networks
Two types of peer-to-peer networks
the centralized model:
centralizes all the files provided by network users, allowing all Internet users to conduct a research of files through a central database
Napster
the decentralized model:
establishes a connection with one or more peers using the same software
Gnutella, Kazaa, Grokster, eDonkey and Morpheus 
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

5. The conflicting interests
New peer-to-peer networks
combination of centralized and decentralized systems
The request of a file of each user is directed to a computer that holds its own database but it can also search the requested file through other machines.
Once the file requested is found, the user who submitted the request can download it directly from the user's computer that provides it. 
Bittorrent
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

6. The conflicting interests
services of peer to peer networks:
training and teaching processes
cooperation and collaboration between the employees of a company
instant messaging, chats and online games
data-processing security
storage services
multimedia streaming services
downloading of contents
reasons leading to the downloading of files through peer-to-peer networks:
the cost of the original work
the wide variety and extent of availability of contents
discovery of new artists and products who are not yet promoted by the current regime of trade
the need to ‘test the product’
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

7. The conflicting interests
b. The Intellectual Property Rights, applied in the digital environment
The moral right
the right to decide on the disclosure of the work
the right to the respect of the work
the right to the respect of the author's name
the right to repentance and withdrawing
The right to the exploitation of the work
 the right of reproduction of the work
 the right of representation of the work
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

8. The conflicting interests
Application of IP rights on peer to peer technologies:
The operation of uploading
a work is made available from the hard disk of a user to all Internet users having installed the necessary software
all works
once downloaded, are automatically made available to other users
are made available through digitalization of the work
The operation of downloading
storage on the hard disk of a computer = an act of reproduction
registration in the hardware part of a computer, and/or
burning files to a Cd platform
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

9. In search of balance
a. A reconciliation based on technical protection measures and the exceptions to copyright
The prohibition of illegal exploitation of works by users is effected through international legal instruments
Member-States are obliged to take technological measures against any activity disigned to cancel the protection of works
article 11 of the the WIPO Treaty adopted in Geneva on December 20,1996
article 6 of the Directive 2001/29/EC
The protection and security granted to the authors by technological measures is limited:
legal instruments introduce exceptions in relation to the exploitation of a protected work, through a ‘three-step test’:
article 5 of the Directive 2001/29/EC
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

10. In search of balance
b. A regime of legal downloading and strict legal measures, a response to internet piracy?
The French example
July 2004 : the signature of an ‘anti-piracy charter’
September 2007 : “Commission Olivennes”
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

11. In search of balance 12 June 2009  Hadopi Law
HADOPI :administrative authority in charge of supervising and controlling illegal downloading
requires all the information necessary  identify the infringer
sends a first warning to the user
sends a second warning accompanied by a certified letter
suspends internet access of the offender
other internet service providers are prohibited from providing an internet connection to the offender
28 October 2009 : Hadopi Law 2
establishes the framework for the offence due to negligence
the judges decide for the suspension of the user’s access to the internet
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

12. The conviction issued by the courts
a. The conviction of software distributors
Grokster and Morpheus case, Supreme Court of the United States, June 2005
Sherman Licence Holdings Ltd case, High Court of Australia, September 2005
b. The conviction of peer to peer users
Jammie Thomas case, court of Minnesota, October 2007 : sets the legal basis for the condemnation of peer to peer users in America
Cour d’appel de Paris, 13ème chambre, section B Arrêt du 27 avril 2007 rejected the argument of the exception for private use of copies
Cour d’appel de Montpellier 3ème chambre correctionnelle Arrêt du 10 mars 2005 : the user was acquitted for its act of distributing cultural works  the acts of the accused were based on the exception of private copy
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

13. CONCLUSION instability characterizes the judicial crisis
conviction of peer to peer users can be subject to diverse opinions with regard to its effectiveness against copyright piracy through the internet
development of new practices of copyright infringement (i.e. YouTube, Dailymotion or Myspace etc.)
harmonization of different interests seems to be more complicated or even unrealistic
for all governmental institutions the solution to the problem can be found in the application of the law
maybe the solution can be found on our individual moral principles and respect of others
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

14. “The right to swing my fist ends where the other man's nose begins”
Oliver Wendell Holmes, Jr., jurist
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011

15. Thank you for your attention !
4th International Conference on Information Law Thessaloniki, 20th & 21st May 2011