2004-07-28

P2P File Sharing is Non-Competitive Use of the Work

As Professor L. Ray Patterson explains:
"The competitor uses the copyright; the consumer uses the work. The copyright owner, by reason of the Copyright Act and the copyright clause, has not only no right to interfere, but a duty not to interfere with the consumer's use of a publicly disseminated work."
In the course of copyright legislation and through a drafting error that occurred at the time of the 1909 act fair use was now being applied to consumers where previously it had only applied to a competitor’s use or piracy:
"As originally promulgated, the fair use doctrine was a fair 'competitive' use doctrine designed to enable a rival author or publisher to use a copyrighted work in preparing another publication. Therefore, the doctrine applied only to competitors, not consumers."
Therefore an individual user should not be liable for copyright infringement unless their actions rise to the level of piracy.

Consumers are not competitors. Copyright laws should not even apply to their use of the work whether that be distribution or downloading; so long as that use is non-commercial.

Commercial P2P file sharing networks are competitors.

The RIAA has initiated lawsuits against file sharers because courts have legitimized P2P file sharing tools. The RIAA is using consumers in its battle against P2P.

Commercial P2P networks are also using consumers in their battle with the RIAA. Commercial P2P networks want to do business with them. The RIAA is holding out.

It is within Congress' power to regulate commerce and therefore enactment of IICA to outlaw commercial file sharing networks is within Constitutional bounds.

The RIAA has drafted an overly broad act (INDUCE Act) not in order to stifle technological innovation, but to engage us. They will accept compromise, and announce a victory for both sides. I believe they will let us keep our iPods and betamax, our legos and silly putty; if only we agree to legislate against P2P.

Enactment of IICA should be narrowly tailored to target commercial P2P file sharing networks.

It should also be prefaced on the dismissal of all suits against consumers and should require that the RIAA return all settlement funds.

Consumers are the ultimate losers in this battle. If Enactment of IICA ends the RIAA's campaign against consumers, then I support it's passage.

I mean we'll still have gmail and non-commercial p2p darknets right?

**update**

Ernest Miller responds (Fair Use, Normal Use, Competive Use and the INDUCE Act (IICA)):

This is why I don't agree with Heller's conclusion. Heller wants the RIAA to promise not to sue consumers if a narrowly tailored (targeting only commercial P2P networks) INDUCE Act is passed. First, you couldn't have such a promise because you couldn't get every copyright holder to agree. The enacting legislation would have to waive liability by statute. Second, and more importantly, even if the commercial systems went away you'd have just as much filesharing with the non-commercial systems. Indeed, with the liability waiver for users, technical development would be rapid and the copynorms would shift, since filesharing would have been legalized.


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