TIPS^®  Taiwan Intellectual Property Special

Split District Court Decisions regarding P2P File Sharing Platform

The legal systems around the world dispute the copyright infringement liability of the P2P file-sharing platform. Taiwan joined the trend and the district courts issued 2 decisions in this regard, holding totally conflict with each other.

On June 27, 2005, Taiwan Shih-Lin District Court ruled that the representative of ezPeer, a peer-to-peer (P2P) file sharing software company, does not constitute criminal copyright offense. The major reason that Criminal Tribunal of Shih-Lin District Court ruled ezPeer is not criminally liable for copyright infringement is that ezPeer itself did not engage in illegal public transmission and reproduction, neither was it an accomplice with the person(s) who actually engaged in illegal public transmission and reproduction. However, the Court made it clear that this is a criminal decision, and whether ezPeer shall be responsible for civil liability for copyright infringement was not discussed in the present case. Besides, the Court also believes that, in terms of its use, P2P is a new method of Internet communication, which shall enjoy certain degree of fair use and criminal immunity, and does not create “a risk that is unbearable under the criminal law.” Such communication tool provide the Internet users with the key technology and assistance for legal, as well as illegal, activity on the Internet, but there is no regulation in Taiwan that requires the Internet service providers should carry out the duty to screen the content.

A few months later, Taiwan Taipei District Court issued a decision on September 9, ruling to the contrary that KURO, a famous music file sharing website in Taiwan, is liable for criminal copyright law violation. Taipei District Court found that KURO is aware of the fact that the software and service it provides is capable of copyright infringement, and still induces users to join its service. As a result, the Court found that the direct infringement of the end users does not contradict to the intent of KURO, who then became the co-offender. Moreover, the Court reasoned that, where a software provider gains profits from providing the software and is capable of controlling the infringement activities of the end users, the software provide should be held liable for the infringement.

Both of the decisions will be appealed to Taiwan High Court. We expect the High Court will reach a decision to represent the view of the legal community toward the P2P file-sharing issue.