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.
In this article, I will analyze the activities of P2P users to determine more precisely which, if any, of their actions infringe copyright. I suggest that one reason courts do not delve more deeply into the question of direct infringement is that in fully-litigated cases, the alleged direct infringers are not before the courts; their rights are being adjudicated in absentia. Moreover, the actual defendants in these cases – the alleged secondary infringers – are poor proxies for the users of P2P networks and have no incentive to promote clear judicial analysis, because clear analysis will result in secondary liability. Yet it is important from a policy standpoint to be clear about which activities infringe and which do not.
And from the conclusion:
In short, as matters stand, the right of the public to make noncommercial copies of recorded music for personal use, agreed to by the affected industries in 1992, is directly threatened. This is the consequence of the Napster court’s lack of care in analyzing and describing the specific nature of the infringement taking place on the Napster P2P network. Napster should indeed have lost the case, but not for the reasons given by the Ninth Circuit, which was far too quick to conclude that consumer copying, rather than distribution, was the problem. Courts must realize that copyright cases like Napster are not just copyright business as usual; they instead represent a new trend toward adjudicating the rights of the public in cases where the public is unrepresented before the court and the parties that are represented are a poor proxy for the public interest. In a copyright regime where the statutes are drafted by affected industries, and the courts adjudicate the rights of the public without the public being present, it is questionable whether the “progress of science and the useful arts” can be well served.
Finally, although this Article focuses on direct infringement of P2P users, the secondary liability of P2P providers may threaten P2P technology itself. The exchange of copyrighted materials, including recorded music, on a P2P network is inevitable. Some users will use P2P technology to infringe. If that alone is enough reason to shut down the technology, then we have sacrificed technological progress for the sake of pop music, a poor choice of technology policy at a time when technology has never held more promise.