A Bit Liable - A Guide to Navigating the U.S. Secondary Liability Patchwork
2008; Routledge; Volume: 25; Issue: 1 Linguagem: Inglês
ISSN
0882-3383
Autores Tópico(s)FinTech, Crowdfunding, Digital Finance
ResumoI. INTRODUCTION Since Napster heralded the advent of the peer-to-peer (P2P) file-sharing era almost a decade ago, a public war has waged. Content owners have fought to hold P2P providers liable for the infringements of their users. Those providers have responded, successfully in many cases, by releasing new software designed to fall just outside the existing law. U.S. courts have struggled to apply often inapposite precedent to these rapidly-shifting technologies, to reconcile the mutually exclusive interests of the parties, and to safeguard the broader interests of industry and consumers. After almost a decade of being pulled in these competing directions, U.S. secondary liability law has become a ragged patchwork. Frayed by internal and cross-jurisdictional contradictions, its policy patches join together haphazardly or not at all, and loose threads are threatening to unravel its entire fabric. This article seeks to tease out these loose threads by identifying the law's most significant uncertainties and controversies in a single coherent collection. Their potential consequences are highlighted via a detailed walkthrough of the way in which the secondary liability regime might apply to the creator of BitTorrent, an innovative, popular, and as-yet unlitigated P2P file-sharing technology. Part II begins by introducing and defining the BitTorrent technology. Part III introduces the tort of inducement, one of three secondary liability doctrines that exist within U.S. federal copyright law. After identifying the most significant uncertainties to affect its application, it gives detailed consideration to BitTorrent Inc.'s potential inducement liability. Parts IV and V then engage in a similar exercise with regard to the remaining two secondary liability doctrines, contributory and vicarious infringement. Part VI concludes. The rhetoric underpinning existing formulations of U.S. secondary liability law tends to be strongly technology-protective. However, this article argues that the failure of the courts and legislature to clarify the increasing uncertainties that surround that law's proper scope and content disproportionately dampens technological innovation and investment--effectively abrogating those protections by stealth. II. BITTORRENT BitTorrent was unleashed by software developer Bram Cohen in 2002. (1) Legend has it that it was developed as a solution to the difficulties faced by members of the jamband community, who struggled to download authorized copies of the large, high-quality music files that are the focus of their hobby. (2) One of the community's initiatives was to create etree, an online music community that promoted the lawful circulation of high-quality jamband recordings. (3) Finding etree's existing distribution processes very painful to watch, Cohen set out to create a better way to cheaply and efficiently transfer large files. (4) The resulting technology indeed improved the transfer of jamband recordings, and has since been widely used to facilitate the legitimate distribution of a great deal of other content, including software, (5) computer games, (6) and music. (7) Its adopters have included such high-profile content-owners as Warner Brothers, 20th Century Fox, and MTV. (8) However, the characteristics that made it invaluable for the legitimate distribution of large files inevitably caused it to become the tool of choice for unauthorized distribution of movies, software and television shows. (9) BitTorrent traffic has been estimated to comprise between 35% and 67.5% of all global Internet traffic. (10) A quick search on any Internet search engine results in torrent files linking to a cornucopia of infringing movies, music, television shows, and computer games. (11) Torrent hosting websites display statistics showing that popular movies and television shows are regularly downloaded via BitTorrent tens or even hundreds of thousands of times each. …
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