Suing individuals for copyright infringement under the Copyright, Designs and Patents Act 1988 (CDPA) was one of the first legal solutions used by the UK music industry to combat piracy and illegal file-sharing. In recent years, the BPI brought around 150 cases against individual infringers. Simon Baggs, a partner at Wiggin LLP in London, comments that "it was a question of pursuing individual file-sharers and seeking undertakings that they would not infringe again, as well as seeking damages". According to Baggs, while this measure has worked to some extent in raising the profile of the problem, it is impractical for the record industry to pursue in the long term, given the number of people engaged in online infringement in this way: "The costs in pursuing every infringer through legal action would be vast. Such actions are expensive and the litigation option is perhaps a blunt tool to use in respect of every infringement."

As an alternative, according to Ben Allgrove, a partner at Baker & McKenzie in London, the UK market saw the advent of what is known as 'volume litigation'. Volume litigation involves copyright owners banding together, and going onto the file-sharing networks to discover the Internet Protocol (IP) addresses that are infringing copyright. The copyright holders will then seek a court order requiring the internet service providers (ISPs) to provide them with the personal details of those infringing customers. The copyright owners will then typically contact those customers (which can number in the thousands) through lawyers, who warn them that they face potential court action unless they pay a large settlement sum. Fines typically range from £500 to £700.

Allgrove says that this method of volume litigation is based on only a percentage of people who are targeted paying the fine, which means "the programme then often becomes self-funding". "The ultimate aim of volume litigation is typically to get publicity, (to act as a deterrant), and some revenue from settlement sums in a cost-effective manner," adds Allgrove.

However, like individual litigation, this method has proved controversial with the media and public. Particularly since the inception of the Digital Economy Act 2010 (see below, Digital Economy Act), there have been fears that innocent households will be targeted and exploited for sums of money they cannot afford. It has also been argued that volume litigation has not actually reduced levels of infringement to any noticeable degree.

The data protection issues surrounding the gathering of information on individual users are also unclear under the Data Protection Act 1998 (DPA). The DPA states that personal data about a subject cannot be processed without a person's consent, unless it falls into one of the exemptions. It is unclear whether one of these exemptions might apply to the rights-holders and ISPs in this case (see PLC IPIT & Communications Practice note, Overview of UK data protection regime).

An alternative to suing individuals is to target the owners of the pirate sites that enable and encourage infringement to occur.

As Enser says, "Rights-holders want to go after the industrial-strength users the people who are facilitating piracy. The challenge is that very few of the websites that facilitate piracy are based in the UK". As a result, litigation needs to be brought locally. There have been some examples of successful litigation within the EU, such as in Sweden against The Pirate Bay, and against Switzerland-based RapidShare in Germany (although RapidShare later successfully appealed) (see PLC Article, Legal responses to file-sharing in Europe, 21 October 2009 and TorrentFreak, Court orders RapidShare to proactively filter content, 24 June 2009). However, with websites based outside the EU, it can be difficult to litigate because of lax copyright enforcement in some jurisdictions. Some possible legal solutions arise in the Digital Economy Act and through other international responses (see below, Digital Economy Act and see box, International piracy solutions).

In June 2009, in response to music industry concerns about the growing problem of piracy and illegal file-sharing, the then Labour government's Department for Business Innovation and Skills (BIS) and the Department for Culture Media and Sport (DCMS) produced a Digital Britain report, which set out the ways in which online copyright infringement could be reduced (see PLC Legal update, Final Digital Britain report published, 16 June 2009 ).

In autumn 2009, the government introduced the Digital Economy Bill, which implemented a number of proposals set out in the Digital Britain report (see PLC Legal update, Government publishes Digital Economy Bill, 20 November 2009). The House of Commons passed the Digital Economy Act (Act) in April 2010 (see PLC Legal update, House of Commons passes copyright provisions of Digital Economy Bill with amendments, 7 April 2010 and Office of Public Sector Information, Digital Economy Act 2010). While the Act moves the law closer in line with technological developments and provides additional solutions to online copyright infringement, it has had its critics.

As in the UK, the US music industry's original means of tackling piracy was to litigate against infringing individuals.

However, according to John Delaney, a partner from Morrison & Foerster in New York, like in the UK, litigation in the US has moved away from focusing on individuals to focusing on those who facilitate piracy. Volume litigation has also decreased in favour of focusing on facilitators. For example, in late December 2008 the Recording Industry Association of America (RIAA) announced, after a long and negatively received litigation campaign against individuals, that it would stop the practice of volume litigation (see Wall Street Journal, Music industry to abandon mass suits, 19 December 2008).

According to Slotnick, "the methods of dealing with piracy and illegal file-sharing have become more sophisticated". There are companies that provide services to copyright owners to track any online infringements of their copyright. The companies provide statistical models and evidence, "so that when the inevitable happens, which seems to be a lawsuit, the copyright owners are armed with better and more sophisticated information to explain to a court why it is a copyright infringement that is taking place," says Slotnick.

However, while litigation is the most popular avenue for copyright holders to enforce their right, the success of cases brought has been mixed.

LimeWire. Building on the successful 2005 lawsuit against the p2p site Grokster (see US Copyright Office, MGM Studios v Grokster, 27 June 2005), in May 2010 the RIAA won a copyright infringement case brought against LimeWire, a p2p network where users could swap content (see Wired, LimeWire crushed in RIAA infringement lawsuit, 12 May 2010). LimeWire was found to have induced, encouraged and assisted this copyright infringement. Thorland comments that although this was a big victory for the US music industry, LimeWire was a traditional p2p site, whereas a lot of the new cyber-locker sites which allow users to store or upload content might be more difficult to litigate against, as it can be harder to locate where the infringing files originate from.

Veoh. Veoh, an online video service, was sued by the Universal Music Group (UMG) for copyright infringement of music and video content that had been uploaded onto its site. In a controversial decision, the federal court ruled that Veoh was protected by the 'safe harbor' provision in section 512(c) of the Digital Millennium Copyright Act 1998 (DMCA) (see Wired, Online video-sharing sites score copyright victory, 6 January 2010).

The 'safe harbor' protection states that a website will not be liable for copyright infringement if all of the following apply:

UMG is currently appealing to the 9th US Circuit Court of Appeals.

Delaney notes that the scope of the safe harbor provisions, as applied to emerging internet technologies and business models, remains unclear, as such provisions were drafted over a decade ago, when the internet was still in its infancy. Thorland agrees, and states that the Veoh case was "a pretty big loss for the music industry. Courts are setting a very difficult standard, where copyright owners have to prove that they waved a red flag that should have put those sites on notice of infringement". She states that the 'safe harbor' provisions can make cases "pretty tough; not unwinnable, but very difficult to win".

Google. Google, the search engine, was recently sued by Blues Destiny Records for contributory copyright infringement because it allegedly benefitted from its users' queries into infringing material. Although the record label eventually withdrew its lawsuit, it stated that it may re-file at another time. Google therefore sought to clarify with the US District Court in Northern California that it qualified under the DMCA safe harbor protections, because it had removed access to any infringing links when it was notified about them. However, in June 2010, after the record label agreed that it would not pursue a claim against the search engine, Google withdrew its claim (see The Hollywood Reporter, Google withdraws lawsuit against record label, 16 June 2010).

YouTube. The online video service, YouTube, has been the subject of many copyright lawsuits. The most recent and high-profile case against it was brought by Viacom in 2007, where Viacom accused it of infringing the copyright of its programmes. In June 2010, Viacom's case was dismissed by a US District Court judge (see below, Developments in television piracy: The television industry's response and FT.com, Viacom loses $1bn copyright case to YouTube, 24 June 2010).

As in the UK and Europe, the US music industry has tried to build alliances with ISPs to get them more involved in the process of notifying customers who are infringing copyright. Thorland comments that the music industry has been encouraging ISPs to send graduated notifications to infringing users, with the final sanction being termination of their internet account. She notes that research in the US has shown that users will often stop infringing once they have been notified that the ISP and copyright owner are aware of the infringement.

However, Slotnick thinks that the European-style "three-strikes" concept looks unlikely to be codified at present in the US (see box, Three-strikes legislation around the world). Laurie Self, a partner from Covington & Burling's Washington DC office, thinks that a more likely scenario is a more consensus-based voluntary approach between the music industry and ISPs to terminate accounts of repeat infringers.

In both the UK and US, the legal remedies available to television rights-holders are the same as those available to the music and film industry.

Litigation. Some recent examples of litigation have raised the public profile of the problem of television piracy. For example, in the US in 2007, the TV series '24' was leaked on YouTube. Twentieth Century Fox immediately filed a subpoena against YouTube to find out the details of the individual responsible for leaking the content. Following this, US law enforcement were able to prosecute the person responsible (see Newsfactor.com, Fox goes after YouTube for '24' leak, 26 January 2007).

Thorland states that although TV studios do have this avenue open to them, many have instead been focusing on strategically pursuing websites who encourage or facilitate piracy, and seeking co-operation from the ISPs in limiting piracy by notifications to users or otherwise. For example, in 2007 Viacom began a high-profile US$1 billion lawsuit against YouTube for copyright infringement of its programmes. Court documents were released in March 2010 revealing that Viacom had uploaded much of its own content, which it had then demanded YouTube take down. There were also revelations that the founders of YouTube had been aware of copyright infringement taking place, with one of them even putting up infringing material onto the site (see FT.com, YouTube 'knew of copyright violations', 18 March 2010). In June 2010, a US District Court judge found that YouTube had not infringed Viacom's copyright because it had removed the clips when it had been informed about them, and was therefore protected by the 'safe harbor' regulations (see FT.com, Viacom loses $1bn copyright case to YouTube, 24 June 2010). Viacom is likely to appeal the decision.

However, as with music and film, the main legal avenues of litigation against individuals and websites are often used only for the most severe cases of piracy - often when programmes have been leaked before they have been aired on television.

The illegal streaming of live sports events continues to form a large part of television piracy. In the US, Delaney says that stopping this sort of piracy can be difficult, but that the pirated experience, perhaps coming from a handheld camera, would inevitably be a poor substitute for the real thing. The other method of pirating a live event involves intercepting the broadcast airwave on which the event is being transmitted. This is difficult to achieve because most sports are broadcast on encrypted channels, but it does still occur.

Peets says that a lot of illegal live sport streams are intercepted from China. She notes that "it is a real challenge to investigate and prosecute them. Investigation requires constant monitoring, because obviously with a live broadcast, the real value of the broadcast is real time". Rights-holders therefore need to act very quickly to take it down the content once it begins streaming. Working with a local office in China can help where the technology providers are based in that market.

Digital Economy Act. In the UK, the television industry can also make use of the Digital Economy Act, which will enable it to monitor frequent infringers and get ISPs to notify them of their infringement. The Act could also enable television rights-holders to obtain injunctions against websites that are particularly serious copyright infringers (see above, Digital Economy Act).

Television has been reasonably quick to capitalise on the changing ways in which viewers want to watch programmes. However, "one of the biggest challenges facing the television industry is not necessarily piracy alone, but the proliferation of time-shifting and place-shifting devices," according to Delaney.

Time-shifting enables viewers to watch programmes when they want to, rather than when the channel has scheduled it. In the US, the television and film industry challenged the move away from traditional viewing methods 25 years ago, with a landmark Supreme Court case regarding video cassette recorders (VCRs). In that case, the Supreme Court permitted the VCR, one of the first time-shifting devices, to be sold to US consumers, against the objections of copyright owners (see Cornell University Law School Legal Information Institute, Sony Corporation of America v Universal City Studios Inc, 464 US 417 (1984)). Technology has since moved on to offer both time-shifting and place-shifting, with new devices such as Slingbox that allow programmes to be viewed at different times and in different locations.

Many copyright owners have successfully used video-on-demand services to compete with websites showing pirated copies of their programmes. In the US in 2009, Time Warner and Comcast announced a concept called 'TV Everywhere', which consisted of its television programmes being made available on the internet (see Time Warner newsroom, Time Warner Inc announces widespread distribution of cable TV content online, 24 June 2009). The beta version of TV Everywhere was initially rolled out in December 2009 to current Comcast subscribers. It received a mixed response, and a new version was rolled out in May 2010 with an easier process to log in and access the service (see NewTeeVee, Comcast to revamp its TV Everywhere service, 11 May 2010).

Some US sites such as Hulu, which allow a number of programmes from different channels to be viewed for free, supported by advertising revenue, have been successful. Thorland points out that Hulu has been particularly good at drawing viewers away from watching short fragments of programmes illegally posted on YouTube. However, there have been reports that Hulu, while successfully gaining viewers, has not been as successful with its revenues. Also, some companies, such as Viacom (which owns the channel Comedy Central), have taken their programmes off the site and onto their own official sites (see Advertising Age, Hulu's a towering success- just not financially, 29 March 2010).

In the UK, video-on-demand services such as BBC iPlayer have increased the flexibility and choices for viewers. New sites such as SeeSaw offer a range of programmes from different UK and US broadcasters to watch for free or to rent. In addition, some broadcasters are beginning to realise the commercial and technological potential of broadcasting over the internet and are using p2p networks to disseminate their programmes. The EU has also invested in the development of a p2p network called P2P-Next, a project aimed at redeveloping and boosting TV broadcasting on the internet.

However, Enser notes that there is a limit to how effective video-on-demand can be. He cites the BBC programme, Top Gear, as one of the most illegally downloaded shows on the internet, thanks to its demographic and popularity in the US, and because it is only available on the iPlayer for seven days. He comments that "legitimate services can only get you so far because often you cannot make programmes available at all times for rights reasons".

According to some lawyers, the biggest challenge to the industry now is how to control where and when content is being accessed, particularly for content which may not be authorised for viewing in certain jurisdictions (such as US programmes that may have exclusive broadcast deals with specific channels in Europe). Some note that place- and time-shifting devices have become powerful and could potentially cut into the revenue streams of content providers. Commentators think that the question of whether unauthorised time- and place-shifting is copyright infringement or fair use is unclear under US law. However, many do think that litigation will be inevitable with these place- and time-shifting devices, to establish what effect and harm they do to the original copyrighted work.

Delaney thinks that content owners are certainly becoming more interested in getting their content viewed online and on new platforms, such as the Apple iPhone and iPad. He says, "It is a brave new world, where the big issue is how we will be consuming TV programming five years from now." An example of this in the UK could include free-to-view internet-connected TV, which the industry is hoping will be the next technological step up from the current Freeview set-top boxes. The BBC, ITV and Channel 4, as well as a number of other channels, have been discussing and negotiating this possibility, and have called the venture Project Canvas (see Digital Spy, Project Canvas: TV's next evolution?, 2 July 2010). This scheme would enable viewers to connect internet-enabled set-top boxes to their televisions, to allow them to watch content from the internet directly on their TVs. The plan has attracted criticism from satellite and cable broadcasters, however, and in May 2010, the Office of Fair Trading ruled that it did not need to be investigated for UK competition law breaches (see FT.com, Watchdog gives go-ahead to free internet-TV joint venture, 20 May 2010). Since this announcement, one of the UK's terrestrial broadcasters, Channel Five, dropped out of the project, but there have also been indications that the UK mobile phone and broadband operator, Orange, would be interested in being involved (see The Guardian, Orange in talks to join Project Canvas, 14 July 2010).

As with the music, film and television industries, the gaming industry is able to use litigation against individuals and websites that encourage and commit video-game piracy. However, litigation can be costly and takes time to undertake. Further, targeting individual gamers, many of whom are also legitimate customers, is also an unattractive proposition for the gaming industry.

In spite of these drawbacks, there have been some important cases for the gaming industry in the UK, where individuals have been found to have infringed copyright by selling modchips that enabled pirated games to be played. One case in 2009 (R v Christopher Gilham [2009] EWCA, Crim 2293, 9 November 2009), also established that playing games enabled by a modchip involved a substantial breach of copyright (see PLC Legal update, Court of Appeal upholds modchips conviction and considers substantial part copyright test, 9 November 2009).

In the UK, the Digital Economy Act will affect illegally copied and pirated software and games in much the same way as music, film and television programmes. The Act will ensure that there is greater co-operation between ISPs and copyright holders, and that ISPs will provide details of infringing gamers and websites to the games publishers and copyright holders. However, there are doubts about how exactly the Act will be implemented, and details are unlikely to be available for several months. Cairns notes that "this is a fast-moving industry and, by next year, things may well have moved on in terms of technology". Instead, Cairns thinks that one effective solution to piracy is to make more content available online, and for the industry to move more of its sales online.

The video-games industry has an advantage over other content industries when it comes to fighting piracy, because many video-games require an online interface. "This means that console companies can ensure that gamers who want to play online with others need to have unmodified and legal versions of games and consoles," says Baggs. For example, Microsoft's Xbox 360 provides an online interface, where gamers can play against other gamers from around the world. Baggs comments that "an important aspect of gaming is that there is an ongoing relationship, unlike in film or music where you buy the content and then you can watch it how you want; with gaming you continue to have an interaction with the gaming provider". This ongoing relationship and online community therefore provides "a real opportunity for gaming and a really powerful answer to piracy", according to Baggs. Without a legitimate copy of a game, many users simply cannot get involved in the full experience of playing it.

Creating an online interface and online community emphasises the superior quality of authentic products over their pirated versions. "It is very difficult, if not impossible, for pirates to replicate these advantages," says Delaney. Cairns agrees, and thinks the best option for the industry is to create something extra "that gamers are willing to pay for."

In addition, Cairns notes that the gaming industry is increasingly turning to technological methods to stop pirated consoles and games from being used, rather than outright litigation. Microsoft has started using a method that detects and blocks gamers from accessing the Xbox online services if they have modified their Xboxes with modchips. The company carries out an annual check on its machines, and stops those that have been tampered with from accessing the network. Although this does not stop the console from working, it does hinder users from taking advantage of the interactive element that is important to a lot of gamers (see The Guardian, Microsoft cutting off up to 1m gamers with modified Xbox 360 consoles, 11 November 2009).

There have been a few instances of pirates scanning and uploading pages of books onto the internet, although this appears to be a niche and rather laborious method of pirating books (see The Millions, Confessions of a book pirate, 25 January 2010). Because these instances are rare and the digitisation of books has not yet become widespread, there have not yet been any major instances of copyright litigation.

However, rights-holders claim that sites such as Sribd contain a lot of content that infringes copyright, and it has already attracted a lawsuit from a US author for copyright infringement (Elaine Scott v Scribd Inc, Case 4:09-cv-03039) (see The Guardian, Book sharing site Sribd rejects claims of copyright infringement, 21 September 2009). Although legal actions have not yet been widespread, Slotnick thinks that it will be a matter of time before publishers and authors begin to pursue this option. This could particularly be the case when e-readers become more popular, although it is not year clear whether piracy will become widespread for digital books (see The Guardian, Who's afraid of digital book piracy? 18 February 2010).

The publishing industry has reaped the benefits of being one of the last industries to be digitised and to go online. As a result, publishers will be keen to capitalise on the range of new commercial and technological opportunities that are presenting themselves. Thorland comments that, in the US, publishers are deciding "how to copy-protect their files when they do distribute them legitimately".

Potential solutions include digital rights management (DRM), which would allow the file to be read only on the device on which it was originally downloaded. However, DRM proved very unpopular in the past with music and video-game consumers, and led to iTunes and Amazon selling DRM-free music tracks which could be played on any device and music player after they were purchased.

Allgrove does not think UK publishers will go down the DRM path; "The model seems to be moving towards content on any platform, driven by what the consumer wants". However, he also notes that enabling content to be viewed on all media does not always lead to the best consumer experience. "The attraction, from a consumer point of view, is when content is optimised for your particular device - however, regulators and consumer groups are indicating that we should be able to use content on all devices", he explains.

Already, publishers and authors are considering the ways in which their books can be made available online. In the US, there have been disputes between authors such as Kurt Vonnegurt and William Styron's estate, and their publishing houses, regarding who owns the rights to publish the digital copies of their novels (see Los Angeles Times, Random House settles e-books lawsuits, 5 December 2002 and New York Times, Random House cedes some digital rights to Styron clan, 25 April 2010). So far it appears that, generally, authors have been successful in those cases. However, some commentators anticipate a wave of book publishing companies suddenly not having the rights to books that they want to license for use on the iPad or Kindle (see New York Times, Legal battles over e-book rights to older books, 12 December 2009).