|Should P2P Website Operator Be Responsible for the Crime of P2P Downloader under Joint Criminal Enterprise Liability Doctrine? – A Comment on ezPeer and Kuro|
|P2P services, P2P website operator, co-perpetration, coperpetrator, joint criminal enterprise liability, unauthorized reproduction|
|Recently, the most important criminal copyright case is Kuro, in which the
Kuro operators and a downloader were found guilty as co-perpetrators in the
commission of the unauthorized reproduction offense. The Kuro court’s decision
is important not only because it discusses the issue of the liability of peer-to-peer
(P2P) downloader but because it is different from the ezPeer decision concerning
the liability of P2P website operators. Unquestionably, the split between the
ezPeer and Kuro cases has generated many debates. The focus of inquiry in the
article is whether P2P website operators shall be punished as a co-perpetrator in a
joint criminal enterprise directed to commit the unauthorized reproduction
offense. For purposes of simplicity and clarity it is assumed here that a P2P
downloader commits the unauthorized reproduction offense.
This article begins with a discussion of the meaning of “Co-perpetration”
within Article 28 of the Taiwan Penal Code, providing an understanding of joint
criminal enterprise liability as a background for the following case discussions.
In addition to the two requirements, including agreement to reach a common goal by coordinated co-operation and joint control over the criminal conduct, this
article further proposes the following requirements for criminal enterprise
liability: (1) the intent to commit with the other perpetrators; (2) the intent to
make use of the other perpetrators’ commission of an offense; (3) material
contribution to the execution of criminal conduct.
Next, this article reviews the opinions of the ezPeer and Kuro cases in
determining the criminal joint liability of P2P website operators. It then argues
that the Kuro court fails to prove, beyond a reasonable doubt, an agreement
between the Kuro operators and a downloader. It concludes that the mere fact that
the P2P operators provide P2P services with knowledge of unauthorized
reproduction no longer will suffice to generate criminal enterprise liability.