“Music,” he explained, “is different” from other intellectual property. Not Karl Marx different – this isn’t latent communism. But neither is it just “a piece of plastic or a loaf of bread.” The artist controls just part of the music-making process; the audience adds the rest. Fans’ imagination makes it real. Their participation makes it live. “We are just troubadours,” Tweedy told me. “The audience is our collaborator. We should be encouraging their collaboration, not treating them like thieves.”
He uttered this with the passion of a teacher explaining the most fundamental truths. Words echo in this poet’s mind many times before they are spoken. These words had echoed many times before. But when I asked him to explain the extremism in this war, passion faded and disbelief took its place. Commenting on a court decision to ban all music sampling without a license, he said one word: racism. And he seemed genuinely confounded by those who use the courts to punish their fans. “If Metallica still needs money,” he almost whispered, “then there’s something really, really wrong.” He would protest this extremism, he explained, by living a different life. By inviting, by creating, by inspiring music, and by ignoring wars about plastic.
If this war is to end, it needs authentic voices. We have had enough preaching. The outrage is beginning to wear thin. It will take bands like Wilco, who live a different example and whisper an explanation to those who want to hear. Peace takes a practice. One that only artists can make real.
CoCo points to two SSRN papers on P2P
Sony, Tort Doctrines, and the Puzzles of Peer-to-Peer by Alfred C. Yen
From the abstract
Unfortunately, the doctrinal elements that govern third party copyright liability do not direct judicial attention to these considerations. Vicarious liability depends on a defendant’s control over and financial interest in another’s infringement, while contributory liability depends on a defendant’s knowledge of and contribution to another’s infringement. These elements may affect the desirability of third party liability, but they do not get to the heart of the matter. Courts will therefore find it almost impossible to construct an effective solution to the peer-to-peer puzzle without reconstructing the law of the third party copyright liability.
This Article will show that the application of common law tort principles accomplishes the necessary reconstruction. In so doing, the Article does not argue for a particular result in any particular case. The point is simply to demonstrate that principles drawn from intentional torts, negligence, respondeat superior, and strict products liability do better than existing doctrine at accounting for the motivations of defendants and the social costs and benefits of peer-to-peer technology. If courts were to use these principles to analyze peer-to-peer cases, their analysis of peer-to-peer cases would become more responsive to basic policy concerns and the wisdom of Sony. This increases the likelihood of decisions that serve the greater public good.
When a minimum statutory damage award has a large punitive component, the danger arises that the award’s punitive effect, when aggregated across many similar acts, will become so tremendous that it imposes a penalty grossly excessive in relation to any legitimate interest in punishment or deterrence. The substantive due process principles laid out by the Supreme Court in BMW of North America v. Gore provide a roadmap for evaluating whether an aggregated punitive effect has become unconstitutionally excessive.
The recent copyright infringement lawsuits targeting illegal file-sharing create the context in which these factual predicates exist: A statutory damage award with a substantial punitive component, a large number of like-kind violations, and fairly low reprehensibility as assessed under the relevant Gore guidepost. Thus, massively aggregated awards of even the minimum statutory damages for illegal file-sharing will impose huge penalties and can be constitutionally infirm like the punitive damage award of Gore itself.