UIC Review of Intellectual Property Law


Ke Steven Wan


For over a decade, copyright infringement using peer-to-peer ("P2P") file sharing has plagued the content industries. Response came in the form of massive lawsuits against file sharers and the use of technologies including digital rights management and technical protection measures. However, illegal P2P file sharing is still rampant. Increasingly, internet service providers ("ISPs") have begun to monitor network traffic with deep packet inspection. Under the Digital Millennium Copyright Act ("DMCA"), ISPs are usually only responsible for their own direct copyright infringing acts. To mitigate potential liability, some ISPs have agreed to partner with copyright owners to serve warnings to subscribers before the ISP suspends a subscriber‘s internet access. While these agreements may result in greater copyright enforcement and a corresponding decrease in illegal file sharing, ISPs acting as "copyright cops" raises many legal and social concerns. The legislation on ISP liability in mainland China and Hong Kong mirrors section 512 of the DMCA. Considering that ISPs in mainland China are state-owned while those in Hong Kong are not, this article examines whether it is desirable to impose a duty to filter packet content for illegal file sharing on ISPs in mainland China and Hong Kong, and whether other technologies such as the notice-and-notice procedure and the joint use of digital fingerprinting and digital watermarking may more efficiently reduce illegal file sharing.