The Progress and Freedom Foundation has recently published a study of secondary liability for P2P filesharing systems. Read the press release: P2P File-Sharing: Balancing Creativity & Innovation. Read the study: Liability of P2P File-Sharing Systems For
Copyright Infringement By Their Users [PDF].
Unsurprisingly, the study concludes that secondary liability should be attached to most P2P systems. Much of the paper is correct on it summation of current law. However, I have a serious problem with the paper's claim that it would be relatively easy to distinguish between bad technology and good technology. I'm not sure that many of the technologies that are common today would have survived the scrutiny the paper proposes.
For example, one difference between the Napster and Sony decisions is that "the balances between infringing and noninfringing uses were dramatically different. The VCR is predominantly used for noninfringing activity, while the Napster business was built almost entirely around servicing users’ infringing." But something very interesting is going on here with verb tenses. The VCR is predominently used for noninfringing activity. Indeed. But the case wasn't nearly so clear when the VCR was first introduced. Is the lesson then that copyright industries should sue before a particular technology matures?
Later in the paper this point is reiterated: "Similarly, VCRs overwhelmingly serve noninfringing uses; the result in Sony has been vindicated." Easy to see in hindsight, not so easy to see when Valenti was decrying the VCR as "the Boston Strangler." The use of the term "vindicated" sort of concedes the point that the issue wasn't clear when the decision was entered. Of course, if Sony had gone the other way, Hollywood would be proclaiming the overwhelmingly noninfringing present uses of the VCR were a result of the initial finding of contributory infringement.
Similarly, the paper argues that, "In contrast, the CD burner was clearly designed and introduced for legitimate purposes, although it can also be used to make infringing copies of CDs." Was this issue so clear when CD-ROM burners were introduced? Heck, at the beginning of the CD-R era the 650MB you could store on a CD-R was more than the average computer's entire hard drive. Tape backup was widely available ... and cheaper. And even if the ability to burn CD-ROMS was clearly a legitimate purpose at the time, really, why did the CD burners have to have the capability to burn the Red Book audio format? Couldn't the RIAA have sued to prevent the sale of CD burners or associated software that could burn Red Book audio? Seems to me that there was a pretty good argument that when consumer CD burners were first sold, the Red Book audio capability alone had overwhelmingly infringing uses. Imagine also if the internet had taken off a few years earlier, before a large installed base of CD burners existed. Wouldn't the overwhelming use of CD burners have been piracy (at least, isn't that the argument Hollywood would have made)? From a policy perspective, it also wouldn't have been very difficult for CD burner manufacturers to make sure their systems couldn't burn audio CDs.
I sort of wonder if the File Transfer Protocol, still an enormous source of piracy, could have survived this sort of scrutiny. After all, couldn't the protocol have included various filtering mechanisms and authentication?
What of BitTorrent? Isn't it overwhelmingly used for piracy right now? Of course, the benefits of BitTorrent for anyone wishing to distribute legitimate large media objects is obvious, to me. Eventually, I imagine BitTorrent (or similar swarm systems) will become significant ways for legitimate distribution of all sorts. But, as the paper refers to other P2P systems, "at present, those noninfringing uses are quite small relative to the use of these systems for widespread Internet piracy." Moreover, would my clear view of the value of BitTorrent necessarily be obvious to a judge? Who would defend Bram Cohen if Hollywood had sued when BitTorrent was first introduced?
I remain unconvinced that we can permit extensive secondary liability because it will be relatively easy to target the "bad" technologies without unduly burdening innovation.
via Furdlog