BitTorrent에 의한 저작권 침해: 누구에게 책임을 물을 것인가? - 미국 최근 판례를 중심으로 -

BitTorrent is one of the most popular peer to peer (p2p) file sharing protocols used for distributing large amounts of data. As BitTorrent has been used to download and distribute copyright infringing material such as music, movies and software, copyright owners seeking legal remedies for copyright infringement brought lawsuits against alleged infringers including BitTorrent users, torrent site providers and Internet service providers. Recently, a group of copyright owners filed lawsuit against hundreds or thousands of BitTorrent users as defendants in a single copyright infringement lawsuit. ".torrent" files can be downloaded by users all over the world and it is difficult to locate and identify anonymous unknown defendants. Therefore, the massive lawsuits against the "John Doe" defendants are likely to be dismissed because of the improper joinder and improper jurisdiction issues. The massive copyright infringement lawsuit could be misused by the copyright owner to threaten BitTorrent users and eventually settle with the individual defendants for certain amount of money. Torrent site providers should not be excluded in the BitTorrent copyright infringement lawsuit. In order to locate ".torrent" files containing the content that they wish to download, BitTorrent users must visit a torrent site which maintain indexes of available torrent files, or users may upload torrent files to share with others through the torrent sites. In Grokster, the U.S. Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression of other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." In determining the torrent site provider's contributory liability on inducement, the U.S. court considered evidence of clear expression of other affirmative steps of the unlawful objective to promote infringement such as the message or the features to stimulate others to commit infringements, technical assistance to users seeking copyright works, explicit statements by defendants. On February, 2011, the Australia court found that Internet service providers (ISPs) are not liable for what their users do with the services the ISPs provide them. However, after this decision, several major Australian ISPs have refined their approach to piracy infringement warnings. The current trend in copyright infringement lawsuits against BitTorrent users and the developed theory of contributory liability or inducement infringement suggests the constructive analysis of the transmission right under our copyright act.