By 12 June 2009 | Categories: feature articles


P2P file-sharing is about bypassing the middle-man. There is no need for a
client-server – a single server dealing with all information ­requests – in P2P networking, as users operate on a distributed computing model. It’s democracy at work, with all users created equal. While P2P file-sharing is not illegal, all too often users share protected material such as music, movies and books.

The law

P2P file-sharing has been a contentious legal issue as far back as A&M Records v. Napster in 1996 (US). The issue is currently generating high levels of public interest across the globe, the ­Pirate Bay – a BitTorrent tracking site – operators having recently been convicted of secondary copyright liability.

It is viewed by copyright holders as a threat to their rightful income, invariably causing them to file legal suits – in the US at least – against alleged violators, in the hope of curbing further violations.

Arousing still more interest is the upcoming US federal case, RIAA v. Joel Tenenbaum, an accused illegal file-sharer. His lawyer, Harvard professor Charles Nesson, is building a rather daring defence, claiming that P2P sharing is simply “fair use”. While there have been no cases against illicit file-sharing in South Africa, we couldn’t help but wonder if such a defence would hold up on this side of the planet.

Attorney Herman Blignaut, partner at intellectual ­property specialists Spoor & Fisher, points out that while there is a similar provision to “fair use” as exemption from copyright infringement in South Africa, that “the unauthorized reproduction of a song, computer program or film will not be covered by the defence of fair dealing even if it was copied for the sole purpose of research or private study or for the users’ own personal private use”. This is a result of the fact that, “[t]he [Copyright Act, No. 98 of 1978] only makes provision for certain specified works as subject-matter in which copyright can subsist with the exemption of “fair dealing” not even applying to all of these”. So the answer is basically no, it wouldn’t.

Playing catch up

What is apparent is the fact that the law has still to catch up with the times as it is ill-equipped to deal with P2P file-sharing – even if it is clear on the fact that it is illegal.

Tenebaum’s case raises a number of issues: firstly P2P ­file-sharing is not generally done for profit. Furthermore, protected material is not actively distributed. Lastly it is not distributed from one person to another; it is distributed from one to many. With this in mind, why should the same heavy penalties as ­applied in more conventional infringements, apply in P2P cases?

This is a rather complex question that is best left for the courts to decide. What Blignaut does point out is that, “Peer-to-peer file sharing networks should generally be fairly ­resistant to legal attacks.” He points out that it would “not make economic sense for a rights owner to prosecute copyright infringement proceedings against each and every ­person in a network of users that may have unlawfully copied digitally stored information whether it is in the form of a film, book, song etc.”

Moving beyond the legal realm, file-sharing is also an ethical issue. So we put it to you; is P2P file-sharing right or wrong? Share your thoughts by emailing us on


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