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 Joes myriad internet friends make their collections of music available not only to Joe, but to anyone on the P2P networkin 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