LIABILITY FOR CLOUD COMPUTING UNDER COPYRIGHT LAW

Transcription

1 LIABILITY FOR CLOUD COMPUTING UNDER COPYRIGHT LAW BY MR. SORAWAT WONGKAWEEPAIROT A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS IN BUSINESS LAWS (ENGLISH PROGRAM) FACULTY OF LAW THAMMASAT UNIVERSITY 2011

2

3 ABSTRACT Cloud computing is a development of technology that closely relates to the development of the Internet. It is a metaphor of tremendous computing resources comprise of hardware and software that exist over the Internet. As a result, cloud computing implicates the sense of location independence. The users of cloud computing can access to the software or hardware wherever by using any computer that is connected to the Internet. Cloud computing consists of variety of services from a simple online application to the incredible online computing performance. According to the nature of the cloud computing service providers who allow their users to store their data on the cloud, it has brought the concern to the copyright realm, that is to say, the cloud computing services may be used by its service recipients as a tool to conduct copyright infringement. Unsurprisingly, cloud computing service providers may face secondary copyright infringement claim from the copyright owners. Thus appropriate provisions of law are required to deal with such issue to ensure the cloud computing service providers of their possible liability for copyright infringement, and to control them from contributing to the infringement activities on its system. In addition, in the case where cloud computing service providers fails to comply with the law, appropriate litigation procedure is required in order to facilitate the copyright owners to successfully recover from their loss. Said procedure includes the acquisition and admissibility of electronic evidence since everything e.g. the contract and data on the cloud are stored in electronic form. In the light of the location independence of cloud computing services, the copyright owners may be obstructed from filing a claim against the cloud computing service providers since such providers may not exist within the same jurisdiction as the copyright owners. As a result, although the copyright owners are entitled to bring lawsuits in their jurisdictions, they may still face problems in enforcing the court judgments in the other jurisdictions where cloud computing service providers are located. The study of the laws of foreign countries, namely the US and the UK, shows that both countries have appropriate and effective provisions of laws or regulations to deal with the issue of liability for copyright infringement of cloud computing service providers. At the same time, both countries also have appropriate provisions of laws to facilitate the copyright owners in proving infringement of cloud computing service providers. Though the court in both countries have advanced their jurisdictions to be able to establish jurisdiction over the cloud computing copyright infringement cases, the enforcement of their judgments are still considered problematic. i

4 As to Thailand, it is clear that its copyright law is yet undeveloped to appropriately deal with the liability for copyright infringement of cloud computing service providers. In addition, due to specific issue of evidence law, the copyright owners may face difficulties in proving infringement of the cloud computing services provider. Furthermore, although Thai court may be able to establish the jurisdiction over such cases, the copyright owners who received the judgments in their favors still face the difficulties in enforcing such judgments in the countries where cloud computing service providers exist. Therefore, it is essential that Thailand advance its laws in order to catch up with the current technological advancement of cloud computing. ii

5 ACKNOWLEDGEMENTS This thesis is part of Master of Laws in Business Laws (English Program), Faculty of Law, Thammasat University. The achievement of this thesis would not have been possible without the support of many people. First and foremost, I would like to express my warm and sincere thanks to Mr. Paiboon Amonpinyokeat, who introduced me to this very interesting thesis topic. He has enlightened me with the legal issues which may arise from this very new technology. I would like to express my deep gratitude to Professor Jumphot Saisoonthorn, my thesis advisor, whose encouragement, guidance and support from the initial to the final level enabled me to develop an understanding of the thesis. I owe my most sincere gratitude to Professor Anan Chantara-opakorn, Professor Jumphot Saisoonthorn, Professor Amnat Wongbandit and Professor Satyapon Sachdecha for devotion of their valuable time as my Thesis Committee and instructions of useful guidance and advice for the completion of my thesis. My warm thanks to all friends of mine who are always there for me to give me support, comfort, and encouragement through duration of this thesis. Lastly, I would like to express my love and gratitude to my beloved families for their understanding, support and endless love. The success of this thesis is devoted to them. Mr. Sorawat Wongkaweepairot Thammasat University Year 2011 iii

6 TABLE OF ABBREVIATIONS 17 U.S.C. Title 17 of the United States Code (the United States Copyright Act) Amazon EC2 Amazon Elastic Compute Cloud CDPA EDI IaaS IP address ISP OSP PaaS SaaS SLA TCP VAN WCT WIPO WPPT The Copyright, Designs and Patent Act Electronic Data Interchange Infrastructure as a Service Internet Protocol address Internet Service Provider Online Service Provider Platform as a Service Software as a Service Service Level Agreement Transmission Control Protocol Value-added Network WIPO Copyright Treaty World Intellectual Property Organization WIPO Performances and Phonograms Treaty iv

7 TABLE OF CONTENTS Page Abstract... i Acknowledgements... iii Table of Abbreviations... iv Chapter 1. Introduction Background and Problems Hypothesis Objectives of Study Scope of Study Methodology Expected Results Background of Cloud Computing and Legal Problems regarding Copyright Infringement Meaning and Scope of Cloud Computing Meaning of Cloud Computing Meaning Characteristics... 7 a. On-Demand Self Service... 7 b. Broad Network Access... 7 c. Resource Pooling... 8 d. Rapid Elasticity... 8 e. Measured Service Service Models... 9 a. Software as a Service (SaaS)... 9 b. Platform as a Service (PaaS)... 9 c. Infrastructure as a Service (IaaS) v

8 Deployment Models a. Private Cloud b. Community Cloud c. Public Cloud d. Hybrid Cloud Implications of Cloud Computing Security Availability and Reliability Privacy Benefits of Cloud Computing Benefits to the Business Sector Benefits to the General Users Benefits to the Education and Scientific Research Benefits to the Environment Nature of Cloud Computing regarding Copyright Infringement Primary Copyright Infringement Users Concerns a. Uploading Infringing Contents b. Downloading Infringing Contents Cloud Computing Service Provider Concerns Secondary Copyright Infringement Contributory Infringement Vicarious Infringement Inducement Infringement Balance of Copyright Protection between Copyright Owners, Public, and Internet Service Providers Significance of Problems of Liability for Copyright Infringement of Cloud Computing Service Provider Copyright Infringement regarding Cloud Computing in Foreign Countries vi

9 3.1 Protection of Copyright Acquisition of Copyright Acquisition of Copyright under the US Law Acquisition of Copyright under the UK Law Protection of Copyrighted Works Protection of Copyrighted Works under the US Law Protection of Copyrighted Works under the UK Law Infringement of Copyright Infringement of Copyright under the US Law Primary Infringement under the US Law Secondary Infringement under the US Law Infringement of Copyright under the UK Law Primary Infringement under the UK Law Secondary Infringement under the UK Law Proof of Infringement Acquisition of Electronic Evidence Acquisition of Electronic Evidence under the US Law Acquisition of Electronic Evidence under the UK Law Admissibility of Electronic Evidence Admissibility of Electronic Evidence under the US Law Admissibility of Electronic Evidence under the UK Law Liability for Infringement General Principle of Liability for Infringement General Principle of Liability for Infringement under the US Law vii

10 General Principle of Liability for Infringement under the UK Law Exception of Liability for Infringement regarding Cloud Computing Service Provider Exception of Liability for Infringement regarding Cloud Computing Service Provider under the US Law Exception of Liability for Infringement regarding Cloud Computing Service Provider under the UK Law Jurisdiction of Copyright Infringement Jurisdiction of Copyright Infringement under the US Law Jurisdiction of Copyright Infringement under the UK Law Enforcement of Liability Enforcement of Liability under the US Law Enforcement of Liability under the UK Law Copyright Infringement regarding Cloud Computing in Thailand Protection of Copyright Acquisition of Copyright Protection of Copyrighted Works Infringement of Copyright Primary Infringement Secondary Infringement Secondary Infringement under Copyright Act B.E Secondary Infringement under Civil and Commercial Code Proof of Infringement Acquisition of Electronic Evidence viii

11 Acquisition of Electronic Evidence under Computer Related Crime Act B.E Acquisition of Electronic Evidence under Rules for Intellectual Property and International Trade Cases B.E Admissibility of Electronic Evidence Liability for Infringement General Principle of Liability for Infringement Exception of Liability for Infringement regarding Cloud Computing Service Provider Jurisdiction of Copyright Infringement Enforcement of Liability Conclusion and Recommendations Conclusion Recommendations Bibliography ix