Copyright Enforcement: The Graduated Response Takes Centre Stage

• Jurisdiction: South Africa
• Author: Caroline B Ncube
• Published date: 25 May 2019
• Date: 25 May 2019
• Citation: (2012) 24 SA Merc LJ 133
• Pages: 133-147

Articles

Copyright Enforcement: The Graduated

Response Takes Centre Stage

CAROLINE B NCUBE*

University of Cape Town

1 Introduction

A signif‌icant portion of copyright infringement in the digital environment is

carried out through f‌ile sharing.

1

Litigation by copyright-holders against

individuals and the providers of online f‌ile sharing or peer-to-peer (P2P)

platforms has failed to stem the tide of large-scale infringement.

2

The pur-

suit of individuals has been nothing short of a ‘public relations disaster’

because of the disproportionate remedies sought.

3

For example, in the United

States, Jamie Thomas-Rasset’s case, based on her sharing of 24 songs,

resulted in a f‌ine of US$1.92 million in 2009, which was reduced to

US$54 000 in January 2010 and then f‌ixed at US$1.5 million by a third jury

trial in November 2010.

4

Thereafter it was reduced to US $54 000 in July

2011.

5

An appeal was f‌iled against that reduction in August 2011, oral

* LLB (UZ) LLM (Cantab) PhD (Cape Town). Senior Lecturer, Department of Commercial Law,

University of Cape Town. E-mail: caroline.ncube@uct.ac.za.

1

F Oberholzer-Gee & K Strumpf ‘File-Sharing and Copyright’ (2009) 10 Policy 1 at 6 describe f‌ile

sharing as follows:

‘File sharing relies on computers forming networks to allow the transfer of data. Each computer (or

node) may agree to share some f‌iles, and f‌ile-sharing software allows users to search for and

download f‌iles from other computers in the network. Individual nodes are called clients if they

request information, servers if they fulf‌ill requests, and peers if they do both.’

Whilst this technology is essentially neutral in that it may be used for sharing non-infringing

materials of all kinds, this article focuses on its use to share infringing music and movies. For

commentary on the extent of infringing f‌ile sharing, see Miaoran Li ‘The Pirate Party and the Pirate

Bay: How the Pirate Bay Inf‌luences Sweden and International Copyright Relations’ (2009) 21 Pace

International LR 281 at 281; Jonas Andersson ‘For the Good of the Net: The Pirate Bay as a Strategic

Sovereign’ (2010) 10 Culture Machine 64 at 69.

2

Joe Karaganis ‘Rethinking Piracy’ in: Joe Karaganis (ed) Media Piracy in Emerging Economies

(2011) 1 at 30.

3

Idem at 26; Peter K Yu‘The Escalating Copyright Wars’ (2004) 32 Hofstra LR 907.

4

Karaganis op cit note 2 at 25–6n21; Thierry Rayna & Laura Barbier ‘Fighting Consumer Piracy

with Graduated Response: An Evaluation of the French and British Implementations’ (2010) 6

International Journal of Foresight and Innovation Policy 294, also available at http://papers.ssrn.com/

sol3/papers.cfm?abstract_id=1713146 (visited on 24 April 2012); page references in this article are to

the SSRN version.

5

Capitol Records v Thomas-Rasset Case 0:06-cv-01497-MJD-LIB Memorandum of Law & Order

Civil File No. 06-1497 (MJD/LIB), 22 July 2011, available at http://ia700504.us.archive.org/21/items/

gov.uscourts.mnd.82850/gov.uscourts.mnd.82850.457.0.pdf(visited on 10 July 2012).

133

(2012) 24 SA Merc LJ 133

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