Reconsidering the quotes on the front page, If you cant protect what you own-you dont own anything.To promote the progress of knowledge on the Internet, those who are building the Net itself need fair and predictable ground rules. , we may consider there is a certain tension between copyright holders and Internet Service Providers (ISP) concerning the issue of online copyright infringement liability.
As the internet has grown, the problem of online copyright infringement has developed into an economically significant issue. According to the Motion Picture Association of America, U.S. companies are losing millions per year to so called online copyright pirates, and with the current growth of the internet, the content community fears that the amount lost to pirates will only increase [2] . This trend can be illustrated by the decreasing music sales. According to the IFPI, The International Federation of the Phonographic Industry an estimate of 95 percent of all music is downloaded without payment to the right holders [3] . In many of industries illegal reproductions or downloads of their material decrease revenues enormously. As seen of the left the total music sales in the United States have sharply decreased over the past decade [4] (See figure 1). Therefore the music industry and other industries affected by illegal distribution of their material, lobby for legislation in order protect their material.
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Figure 1: Music sales through the years (in U.S. Dollars) (IFPI, 2009)
Obviously, it is complicated to draw boundaries of liability within the area of online copyright infringement, mainly due to the fact that there are several parties more or less involved. In practice, it is hard to point at the guilty party. This is partly due to the interconnectedness that has evolved over recent years. However, the victim is clearly assignable, the copyright holders. In this paper we will try to analyze how lawmakers try to decrease copyright infringement through legislation. Therefore, our research question will be: 'What possibilities are there for lawmakers to decrease copyright infringement through legislation, and who can be held liable?
This paper will consist of four chapters; the first chapter will consider online copyright infringement in a broad extent. It will access the different parties and describe each role within the process of violating copyrights. The second chapter will introduce the technical aspect of downloading. It will emphasize how complicated the system is. The third chapter will zoom in on the liability aspect of the download software. We will introduce the concepts of contributory liability and vicarious liability in order to explain the case of LimeWire, a download intermediary which has been forced to stop its activities in 2010. In chapter 4, we narrow down to actions undertaken by the government which influences the behaviour of the individual. We will introduce briefly some real life examples from the United States, France and Belgium. In the end, we will draw our conclusion and thereby answer the research question.
Chapter 1 The origin of Copyright Law and piracy
In 1710 Queen Anne of Great Britain signed the Status of Anne, represented in figure 2. The increasing technology of printing made it necessary to have legislation for the protection of authors and publishers. The act gave a fourteen year protection of the right to copy a book and could be extended every fourteen years if the author was still alive. [5] This is seen as the first copyright protection for authors and publishers. When people illegally reproduce and/or sell works in copyright this would be seen as 'piracy'. Surprisingly enough, before acknowledging there was something like copyright for authors in 1710, there were already statutes considering piracy, namely, since 1603 [6] . In 1994 the World Trade Organization administered an international agreement named TRIPS that required members to provide for criminal procedures and penalties in cases of copyright piracy on a commercial scale. [7] Figure 2 C:\Users\Melle Bakker\Downloads\Statute_of_Anne_1.jpg
Chapter 2 Online copyright infringement
According to the U.S. Copyright Office, copyright infringement occurs when a copyrighted work is reproduces, distributed, performed, publicly displayed or made into a derivative work without the permission of the copyright owner [8] . When someone violates any of the exclusive rights of the copyright owners, he is guilty for practicing piracy.
This paper is focussing on online copyright infringement, since this is one of the most controversial issues of the last decade in the field of copyright infringement. The world wide web is in constant development, and a relatively new field of legislation. Given the fact there are many parties involving the online network, it is hard to fathom the question of liability.
First of all, we state the existence of ISPs and the portal sites, which provide the basic features of the internet (e.g. e-mail, web-hosting services, the transition of data by internet exchange points and allowing routing of data between each network of down loaders and up loaders). Through the years of booming internet development, there has been a development in other online intermediaries as well. One of them is the specification of file sharing. These so called peer-to-peer (P2P) file sharing software, such as Napster, LimeWire and Bit Torrent, are clearly the intermediaries who enable or assist in the downloading and uploading process of files. However, the P2P software cannot be identified typically as a host itself. Basically, P2P intermediaries usually enable users to swap and share files containing works protected by copyright. Conceptually, they are best seen as "pointing to" infringing material rather than directly hosting it or transmitting it [9] . Contrary to this statement, we have websites like MP3.com, which was clearly a host which enables simple downloading of files and was therefore found liable as being a primary infringer of liability [10] .
Chapter 3 Liability for P2P software
The complications of the prosecution of the P2P intermediaries lies within its complicated system. In this chapter, we will analyze the system of Bit Torrent (BT), which is one of the latest and most popular P2P intermediary of the last decade. According to Schulze and Mochalsky (2009), BT accounted for roughly 27% to 55% of all internet traffic as estimated in February 2009 [11] .
The users of BT find lists of so called torrents using ordinary websites, such as The Pirate Bay, not by using search facilities built into the BT software (so therefore, there is no speak of a hosting service). As explained by Edwards and Waelde (2005), the BT intermediary works as follows: In simple terms, a particular file is not just downloaded by one user A from just one other identified user B, but instead, it is fetched from any other user who is sharing that file. Not only that, but the file is split into parts, each of which can be transferred independently, so that user C may be sharing the second half of a file while they download the first part, while user A is doing the opposite, each of them supplying the part the other lacks. In fact this can scale up to hundreds of users downloading files that may have thousands of parts.
Torrent files themselves contain no copyright content but simply direct to the "tracker" (central computers which keep track of all the users downloading a particular file and allow them to find each other) . The BT approach means that it is difficult or impossible to identify any one file as having been copied directly from any particular single user, which complicates the copyright situation further.
There has been an ongoing challenge for the entertainment companies to find a legal standard by which the P2P software could be found liable for the transmission of works protected by copyright between P2P service users. However, in some jurisdictions it has not been possible to charge the program with primary copyright infringement as they do not make copies of the works. Factually, the users of P2P software make those copies. Thus, rather than primary infringement of copyright, secondary liability has been the focus of attention, most notably in the United States. Secondary liability can be distinguished in contributory liability and vicarious liability. Contributory liability requires that the infringer have knowledge of the infringement and that he/she make a material contribution to it. Vicarious liability assumes that the infringer receives some financial benefit through having some direct or indirect relation to the infringing conduct that he/she has the right and ability to supervise the infringer [12] . Unlike contributory infringement, vicarious liability does not require that the secondary infringer knew or even should have known about the infringement. Instead, the infringer should have had the right and ability to exercise control over the direct infringers and he should have had a financial interest in the resulting infringement.
Recently, copyright holders have succeeded to hold P2P intermediaries liable for secondary copyright infringement. The U.S. District for the Southern District of New York has found both LimeWire and its owner, Mark Gorton, vicariously liable for copyright infringement [13] . Copyright holders have tried to hold P2P intermediaries liable for copyright infringement for a long time. In many cases, they have argued that making the recordings available online, whether they were infringer or not, was not enough to hold a P2P intermediary liable for either primary or secondary infringement. In the case of LimeWire, they were probably to reckless. They came up with a "Conversion Plan", which encouraged users to join the site for free so which enables them for uploading and downloading files illegally. Hereby, could convert these users into paid subscribers and promote sales in their online library. In this plan, they needed to promote more infringement first [14] .
First In the US, the recording industry association sued LimeWire for $150.000 per track and counted around 10.000 tracks being shared through LimeWire. [15] In New York the judge ordered LimeWire to stop distributing their software. [16] However, LimeWire could not be held liable for contributory infringement because they were not exercising meaningful control over their users.
Besides the case of LimeWire, there have been various other lawsuits against P2P intermediaries. Since the beginning of the 21st century, there has been an ongoing wrangling amongst P2P intermediaries and copyright holders. The first one was Napster, found both contributory and vicariously liable for the infringement by its users in 2001. Thereafter, Aimster was held contributory liable in 2003. A year after, Grokster changed the technology of downloading again. They decentralized the system, from a central host to a network downloading from all users, like the P2P system as explained above. Apparently, it proved to be difficult to effectively force the company to cease operations. However, after several lawsuits from 2003 till 2005, with positive and negative outcomes, Grokster was held liable by the supreme court and this decision leads to shutdown [17] .
Chapter 4 Actions against down loaders / up loaders
Unlike that there is a clear agreement that criminal procedures are provided in cases of copyright piracy on a commercial scale, there is no clear agreement on piracy when copyright is misappropriated by consumers. When someone buys an illegal DVD or downloads an illegal MP3 there is no clear agreement on whether they are liable.
Since most file-sharing is carried out by users pseudonymously or anonymously, this had lead to a corollary growth in litigation around whether, and under what circumstances, ISPs and hosts should reveal the true name and personal details of file-sharers. However, as P2P services have developed, it is almost practically impossible to reveal users, brought by the complicated process of thousands of leechers and seeders as explained in chapter 2.
Therefore it can be effective to have legislation to demotivate them from downloading illegally. Many countries do have their own solutions to enforce people not to download illegally or compensate the damages of copyright holders.
Copyright holder
Three strike rule
Consumer B
Internet Company
Consumer A
A sells to B and is criminally liable, piracy
Figure 3: Schematic representation of the three strike rule.
In France Nicolas Sarkozy introduced a three strike rule. A schematic representation of the following rule is shown in figure 3. Internet users, in our case Consumer B would get two warnings and after a third warning Consumer B would have their internet connection be shut off. The so called HADOPI is responsible for enforcing this law. When they receive a complaint from a copyright holder the first warning is by email, second is by letter and after that the internet service provider will be required to suspend the internet access. [18] Problems however are that if children download music their parents' internet would be suspended, however that is the responsibility of the parents.
Some countries, like Belgium also have a tax on storage devices. [19] According to studies this is not effective and the revenues are hard to share amongst copyright holders. [20] When people know they have paid a tax on storage devices they might have even more incentives to download material illegally. On the other hand it is also very hard to share the revenues over copyright holders.
Copyright holders have lobbied for legislation to make people who download and share copyrighted material liable for theft; however an infringer of copyright cannot be held liable for theft. The case Capitol v. Thomas in 2009 was the first file-sharing lawsuit in the United States. Many copyright holders tried before the jury and Jammie Thomas, in our case Consumer A had to pay $1.5 million in statutory damages for the 24 songs she shared through internet program Kazaa. [21]
Conclusion
First of all, let's reconsider our research question: What possibilities are there for lawmakers to decrease copyright infringement through legislation, and who can be held liable? This paper has delved into the concepts of online copyright infringement and piracy. The downloading by P2P intermediaries seemed to be the main issue, considering its large share in internet traffic (roughly 27% to 55%). We may conclude that this is an evolved version of the authentic download process. Narrowing down to the complicated process of P2P, we get insight to the extent of anonymity in this field. Thousands of users download thousands of pieces and bits from each other, together providing one larger file. The division of the P2P downloading process makes it (almost) practically impossible to prosecute some user as strictly liable. Therefore, policy makers mostly aim their arrows on the intermediaries. Companies like Napster, Aimster, Grokster and LimeWire. This has proven to be more efficient. However, considering the ongoing process of development, and the evasive behaviour of the software, it is still difficult to take action against P2P intermediaries and its users. Thereby, policy makers try to fight copyright infringement in several other ways, concerning the Belgian and French cases. We doubt if this compensates the losses made by copyright holders, but it is at least a start.
Discussion
We would suggest policy makers to fight online copyright infringement by prohibiting access to sites like The Pirate Bay, or pass anonymous information of down loaders through to copyright holders. This could probably be arranged by collaborating with ISP's, for instance Ziggo and XS4ALL (the Netherlands). However, ISP's are in no juridical way obliged so it is not very likely that they will behave according to the will of copyright holders [22] .
The fact that the world wide web has been in a constant development for the last decade has been devastating for copyright holders. They had several successes, but each and every time, the infringers of copyright succeed to find another way to avoid the law concerning copyright. We question if this wrangling will end in the near future, if the relationships do not change drastically amongst ISP's and copyright holders.
