others, enabled copyright works to be easily and perfectly copied and then shared via theInternet.
The ever-widening availability of broadbandand continual advances in P2P
technology has made file sharing easier, faster and more prevalent, with increasing downloadspeeds making the distribution of movies, TV series, albums and other copyright worksincreasingly popular.
The disruptive impact of file sharing digital media has destabilised the business models of thedominant copyright owners and undermined the efficacy of our existing copyright laws.While copyright owners have aggressively pursued litigation in an attempt to prevent theunauthorised distribution of their intellectual property via the Internet, they have had limitedsuccess.
The Internet has meant it is no longer feasible to control distribution, yet copyrightlaw is premised on enabling exclusive distribution privileges. Copyright enforcement wasmore effective when there were a finite number of publishers, but the Internet has broughtabout a paradigm shift whereby every consumer can also be a creator and distributor of digitalmedia. In this context attempts at enforcement are like shooting fish, unlucky for the fish thatget shot, but the fish population remains unaffected.
Copyright holders’ attempts to policethe duplication of binary digits in the digital domain has become increasingly nonsensical andhad little effect.
These failings point to the need for reform of our copyright regime. The global economyincreasingly depends on effective mechanisms for the generation, protection and exploitationof intellectual property. Inappropriate, defective or dated copyright laws will only stiflefurther innovation, productivity, technology, growth and our quality of life. This essay willconsider the case for reform of our copyright laws to better balance the protection of thelegitimate interests of copyright owners vis-à-vis the collective benefits that flow fromcollaboration and the free flow of knowledge and expression of ideas with particular reference to the disruptive impact and potential benefits for society brought about by theInternet.
MP3 is abbreviation for “Moving Picture Experts Group-1 Audio Layer 3”, AVI is abbreviation for “Audio Video Interleave” and MPEG4 is abbreviation for Moving Picture Experts Group 4. SeeBuskirk, V. (2005) “Top five ways MP3 has changed the world? <http://reviews.cnet.com/4520-6450_7-6266276-1.html?tag=txt> (22 August 2009).
The ARIA Survey (Footnote 1) reported that in Australia the primary software used for file sharingwere Bit Torrent; 37%, Limewire; 33%, Kazaa; 2%, BearShare; 1% and a variety of others; 27%.
The significant copyright cases will be examined including
Sony Corporation v Universal City Studios Inc
464 US 417; 104 S Ct 774; 78 L Ed 2d 574 (‘
Australian Tape Manufacturers Association Ltd v Cth
(1993) 176 CLR 480,
University of New South Wales v Moorhouse
Metro-Goldwyn-Mayer Studios, Inc v Grokster, Ltd
(04-480) 545 U.S. 913 (2005) 380 F.3d 1154,
Universal Music Australia Pty Ltd. v Sharman License Holdings Ltd
 FCA 1242,
Universal Music Australia Pty Ltd v Cooper
 FCA 972, and
Roadshow Films & Ors v iiNet (Nov 2008).
Critics largely view the litigation as ineffective.
Intellectual property expert Alan J. Hartnick offers onesuch negative assessment, stating: “The lawsuits had little effect, as unlawful downloading continues.”Sarah McBride and Ethan Smith, “Music Industry to Abandon Mass Suits,” The Wall Street Journal,December 19, 2008. <http://online.wsj.com/article/SB122966038836021137.html.> (23 August 2009).Also Alan J. Hartnick, “Has the Recording Industry Really Abandoned Unlawful Downloaders?” NewYork Law Journal, April 9, 2009.
There appears to be an arbitrary element to the prosecutions, for example the case of the Minnesota32-year-old mother of four ordered to pay $1.92 million to the four major labels after downloading andsharing 24 songs. See Majors Welcome P2P Win, But $1.92M Award Could Make For Bad PR, BenSheffner, 18 June 2009 <http://www.billboard.biz/bbbiz/content_display/industry/e3i6c3a49109c5609 b6bcd108368c36b406> (23 August 2009).
The record industry continues to pursue Digital Rights Management, digital fingerprinting and other tracking technologies to monitor copyrighted content and is counting on partnerships with ISPs tomonitor file sharing activity and potentially cut off service to offenders. They are also pursuing partnerships with universities to incorporate music subscription fees (of about $5 per student) intostudent tuition bills. If successful, a similar ISP-based fee could be implemented for the general public.See Eliot Van Buskirk, “Three Major Record Labels Join the ‘Chorus,’” Wired Epicenter.<http://blog.wired.com/business/2008/12/warner-music-gr.html> (24 August 2009).