Statutory limitation of liability of internet service providers in decentralized peer to peer file sharing

Abstract

A study is done on the protection of sound recordings in the decentralized peer-to-peer (DP2P) file sharing in the United States, the United Kingdom and South Africa. This study reveals that because sound recordings have unique features different from other copyright works, the illegal sharing of sound recordings can ordinarily be filtered, identified, and detected by the Internet service providers (ISPs) before granting access to users and without infringing the users‟ right to privacy. However, the ISPs have failed in this regard, hence, they are strictly held liable under the contributory, vicarious and inducing infringements notwithstanding the statutory law which prohibits ISPs from monitoring, and intercepting their networks. In fact and law, the terms filtering, identifying and detecting on the one hand and monitoring and intercepting on the other hand are different in relation to sound recordings and as such ISPs are not prohibited from filtering, identifying and detecting illegal sound recordings on their networks, thus, ISPs are not protected under the limitation law as it is generally believed. However, several recommendations are made for reform, inter alia: a review of the limitation law to include the terms filtering, identifying and detecting in pursuance of the terms monitoring, and intercepting, if the intention of the legislators was meant to include the latter terms; protection of access right in digital sound recordings, protection of the neighbouring rights of ISPs in the digital world, imposing levies on all recording equipment, the insurability of sound recordings and ISPs‟ signals, and bandwidth.