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Ernest Miller 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 @

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June 01, 2005

The Benefits of Copyright Leakage

Posted by Ernest Miller

Derek Slater responds to my post on lawsuits against filesharers at UCLA (Whiny Bruins Have a Point) and expands upon one of the points I make regarding the RIAA's responsibility for the success of the original Napster (Ernest on Lawsuits and Leakage). Slater argues that "leaks" in copyright (whether infringing or not), can perform a positive role in creating competition and driving innovation.

With respect to this constructive role, it's also worth setting it within the context of a broader viewpoint about copyright: a leaky copyright can be a good copyright. That's not just the case in file-sharing. It's a crucial aspect of fair use. Allowing copying and copying technologies ultimately can help create new markets for copyrighted works, provide people with greater access, more flexibility and more enjoyment in how they use copyrighted works, and in total improve social welfare. If the screws of copyright were tighter, if it did not leak in this way, we wouldn't benefit from the flood of benefits from various copying technologies.
Absolutely. Textbook publishers may not like used bookstores, but they function to keep the cost of textbooks at least somewhat in check. Thank you, first sale doctrine!

So, copyright "leaks," even illicit leaks such as much filesharing, can have a positive effect. The rise of P2P likely pushed members of the RIAA to adopt legitimate filesharing much sooner then they otherwise would have. But Slater asks, however, how far should we acknowledge/tolerate this positive effect of filesharing? "Perhaps a part of the reconcilition is a sense that, whatever may have been the meritorious effects of file-sharing during Napster's birth, now competition in legitimate services can become good enough that it's time to call off the dogs."

Well, blatant copyright infringement was never cool. Yet, I don't think that were filesharing to go away, copyright would be in balance. For example, I'm a big fan of eliminating the right of reproduction and focusing on the public/private distribution distinction; "share with friends, not strangers." Part of my argument in favor of the public/private distribution distinction as the focus of copyright law is that it provides a clear means for "leaks." If the RIAA keeps music prices too high, people will engage in more private distribution. When prices are reasonable, there will be less private distribution.

Similarly, I think that the DMCA shifts the balance for leaks in ways that are counterproductive.

I will continue to counsel against infringing public distribution via filesharing systems. Yet, I don't believe that there can be true reconciliation until copyright law is better balanced.

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