Prof. Niel Schaumann of William Mitchell College of Law has written an interesting paper looking closely at what sort of direct infringement P2P infringers are actually involved in (Direct Infringement on Peer-to-Peer Networks). From the abstract:
Indeed, the alleged primary infringement of P2P users seems to be an example of a phenomenon one sometimes encounters in the common law: A case finds liability, with little or no analysis. A later case also finds liability, with no independent analysis, citing the first case. A third case does the same, citing the first two cases. Before long, the principle of liability is declared to be well-settled, despite an almost complete lack of reasoning supporting the principle. The so-called RAM copy doctrine, discussed below, is a good example of this phenomenon. Direct P2P infringement seems destined to be another: While Napster, the first of the P2P cases, at least briefly discusses the basis for the direct liability of Napster's users, later cases have done little more than mention that P2P users infringe copyright, as if it were self-evident.
An important point, and while I sympathetic to much of Schaumann's article, there are a few points I am hesitant about, such as this blanket statement:
The dominant use of P2P networks is to facilitate the personal copying of recorded music, an activity that in other contexts is indisputably legal. For example, copyright law permits Joe to borrow a CD of recorded music from his friend, Sally, take it home, and copy it to a digital or analog medium for his own personal use.
The citation for this claim is
17 USC 1008, however, I don't believe that is as
clear cut a claim. 17 USC 1008, which was part of the Digital Audio Home Recording Act (DAHRA), does privilege noncommercial copying, but that is only with regard to digital audio recording devices, digital audio recording mediums, analog recording devices, and analog recording mediums, such as DAT. It does not clearly apply to copying a CD to your computer hard drive, which is precisely why the RIO MP3 player was found not to violate the DAHRA. Moreover, there is the doctrine that by explicitly granting that right under DAHRA, the right didn't exist outside it, otherwise why the need for DAHRA.
Of course, I would argue that Schaumann should be right, and that personal use noncommercial copying should not be cause for infringement at all, period. Indeed, Schaumann argues that the bifurcation (DAT copying legal, MP3 copying questionable) is illogical. He's right, but since when has logic had anything to do with existing copyright law?
Schaumann's fair use arguments also seem a bit facile, that downloading is fair use:
To summarize, the copies of musical works and sound recordings made by downloading P2P users should be protected under the fair use doctrine. The first factor is neutral; the second and third weigh in favor of fair use; the fourth weighs at most only slightly against fair use.
I reproduce only his summary here, read his entire argument of course, but I'm not convinced.
Beyond my disagreements, however, Schaumann also seems to be heading in the direction of an argument that I've made time and time again. One of the key distinctions for Schaumann is between private and public distribution: "The important difference is that the Joe’s myriad internet friends make their collections of music available not only to Joe, but to anyone on the P2P network—in short, to the public." As I've said before, "share with friends, not strangers."
Schaumann also talks about the question of distribution in a bit more depth. Again, as I've said before, "it's all about the distribution." The fundamental question of copyright is not about reproductions, but the distribution of information. What does it matter if there are a bazillion copies of a work if they are not distributed? It is the distribution of information that should be the locus of copyright infringement. And, therefore, the question comes down to whether the distribution is public or private.
Schaumann's argument for consistency and precision apply in full force:
If, however, content owners want to enlist the public to help control infringement, the industries must be willing to support propositions of copyright law that make sense to the public. Intelligibility begins with consistency. Content owners, however, have tried to substitute rhetoric of “theft” and “piracy” for intelligible rules. This will surely fail. Public understanding of the rules depends on precision and consistency in determining which rights are infringed by which activities. [footnotes omitted]
Indeed. What could be simpler? Share with friends, not strangers.
via Legal Theory Blog
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
1. Joe Gratz on May 12, 2005 03:32 PM writes...
That's Niels Schaumann, if I'm not mistaken...
This just goes to show that nearly nobody understands the AHRA. Half the time, people think dubbing analog cassettes is illegal; half the time, they think dubbing CDs on a computer is privileged by the AHRA. Neither is, of course, true, but this goes to Schaumann's point -- consistency and at least some connection to copynorms is critical to winning any war that copyright holders want to fight.
Permalink to Comment2. Gordon Mohr on May 12, 2005 10:45 PM writes...
If "share with friends, not strangers" were established as a legally-protected activity, people could use social-network techniques to ensure any media they wanted reached them through strict friend-to-friend sharing. So I don't think it's a distinction that makes any difference in the long run.
Permalink to Comment3. Ernest Miller on May 12, 2005 11:00 PM writes...
Gordon,
You assume that it is trivial to maintain social networks that would be closed. It isn't. It is difficult to keep a social network from being public and to ensure a deep and broad category of works are available. This is a significant cost. Given reasonable pricing for access to a universal jukebox, the system is perfectly workable. Indeed, given that it tracks the ability to enforce (you can't enforce against private networks anyway), it is exceedingly well-designed.
Permalink to Comment4. Gordon Mohr on May 13, 2005 08:53 AM writes...
Not "trivial" exactly. It'd be quite a tricky problem. But it's not intractable, and if such a system had well-established legal protection, it'd be developed, and quite popular/profitable.
People would be able to broadcast, "I wish I had a DVD rip of 'Revenge of the Sith'" to their private 'friends', who would then essentially wish they had it, too (if only to share locally, rather than enjoy themselves). If anyone within X hops has it -- just like Gnutella -- it'll arrive rather soon.
Perhaps you would argue this is a de facto public network, but it would still work even if everyone only connected to true in-real-life acquaintances, never to anonymous strangers. That restriction only adds a little lag -- it doesn't shut off any content -- and that lag would tend towards negligigible as software, bandwidth, and storage improves.
The few people who do choose to pay for access to a universal jukebox would prove very popular as 'friends', too. As long as I have one within X hops, I can get anything by relaying my demand through them. Or do you want to meter access to the "universal jukebox"?
Permalink to Comment5. Ernest Miller on May 13, 2005 09:31 AM writes...
Well, ensuring that such a system only includes actual friends and not strangers is not a trivial problem. Indeed, I imagine that many such networks would either be quite restricted due to paranoia, or would collapse when RIAA narcs got in.
You'd also basically have to have a social group that says "screw the copyright holders." If there is a legitimate and reasonable alternative, why go through the bother?
Permalink to Comment6. Gordon Mohr on May 13, 2005 01:02 PM writes...
Let's assume the ability to enforce true friends relationships is magically solved. No matter, I'm confident there's a "true friend" link from me to 95% or more of all Internet users, if you allow enough hops... and the 'six degrees' research suggests it's not as many hops as we might think.
Let's assume there are lots of well-paid RIAA/MPAA narcs. So what? All that will do is serve to rapidly train people that: if you stick to "friends" you'll be OK. Networks of arbitrary extent with all "true friend" links are still possible. And if some narcs manage to convince you they're your genuine friends, when you relay them copyrighted content, you wouldn't be violating the "friends only" standard.
Nor do you need people to want to screw the copyright holders. I don't think most sharers today on mass StrangerNets want to screw copyright holders. They believe, with some justification, their actions do little harm to copyright holders, compared to the sampling/collecting/pricing benefit generated for them. A legal shield for 'friend-to-friend sharing' would make them feel even more comfortable about their activity: it's legal, how can it be wrong?
That's why I think that explicitly legalizing sharing among friends, given technological adaptations to such a rule, would rapidly approach the same end results as "digital abandonment," the idea that traditional copyrights are no-ops in the digital networked domain.
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