Justice found between protection of infringers’ privacy and enforcement of producers’ copyrights UID: 3035066936
The University of Hong Kong
This paper is prepared for Cyberspace Crime, CCST 9029, taught by Professor Dr. K. P. Chow and tutored by Raymond Chan. Abstract
This study evaluates a 2006 Court of First Instance case, Cinepoly Records Co Ltd & Others v Hong Kong Broadband Network Ltd & Ltd. It examined how the copyright of music producers could be infringed via P2P software and how might infringers be caught using IP trace back. The case revealed how the hurdles set up by the Personal Data (Privacy) Ordinance could be overcome to protect owners’ copyright under the Copyright Ordinance. Moreover, it led to the discussion of whether it is ethical to upload or download free files online.
7 music companies (Plaintiffs, ‘Ps’) conducted an online investigation and discovered 22 internet users infringed their copyright by uploading their music files via WinMX. Ps decided to sue civil wrongs against the uploaders but Ps only got their IP addresses. Therefore, they sought Norwich Pharmacal relief against 4 Internet service providers, (ISP) (Defendants, Ds) for the HK ID card number and home address of the uploaders, who are Ds’ subscribers. Ds refused as the information sought was ‘personal data’ under Personal Data (Privacy) Ordinance so the disclosure might breach the Data Protection Principle . Technical Aspect
P2P file sharing software
The 22 subscribers shared the music files on WinMX, which is a peer-to-peer (P2P) file sharing software. It was famous for downloading music files as it had a search function and was available in many languages (WinMX, 2012)
The advent of P2P causes rampant copyright infringement because its download speed is faster than that in the traditional client-server model. In client-server model, there is a central server. The server sends files and clients receive them, not vice versa. It is a one-to-one connection. When there are hundreds or even thousands of downloaders at the same time, the download would be slow as there is only one server.
In a P2P network, all users are equal peer nodes. They are both server and client. They can perform download and upload simultaneously. Once a search is performed, a list of available peers will be sent to the user. A ‘multi-point download’ is performed if there is more than one peer. Users download small bits of the file from different peers, which enables efficient download. The transmission of data is set up between peers without a central server (Peer-to-Peer versus a Client-Server, 2000).
IP Trace Back
Another reason people use P2P communication is because their true identity is hidden. The only identity online is their Internet Protocol (IP) address. Yet, infringers can still be tracked down through IP trace back. ISPs assign an IP address to their subscribers whenever they connect to the Internet. The IP address assigned to the same user may be different at different time (‘dynamic IP address’) or the same at all time (‘static IP address’). So ISPs will keep track of the connection records with the personal data of user like his name and home address as well as the time. It is possible for ISP to track an IP address at a specific time and find out who he is (What is an IP Address, n.d.).
Norwich Pharmacal relief
To reveal the uploaders’ true identities, Ps asked Ds to perform IP trace back. Ps did so by seeking Norwich Pharmacal relief against Ds. Norwich Pharmacal relief is applicable when innocent parties (Ds) are involved in the tortious or wrongful activities of others (the 22 uploaders), thus facilitating the continuation of such activities, justice may require the innocent persons to disclose full information of the wrongdoers in order to...