June 24, 2004

Derek’s Bothered….. [10:22 am]

And he explains why in two good postings: Things That Bother Me, Vol. 1 and Things That Bother Me, Vol. 2. The first is about Sen Hatch’s misuse of some Berkman Center materials in support of his IICA; the second is about why keeping Betamax as doctrine in this area is so important

[T]he point makes some sense: it is silly that we let Morpheus get a free ride while Napster had to be shut down. Unlike Hatch, however, I certainly don’t think that this inconsistency demands a rule such that that Morpheus is also liable. Indeed, I think we can still leave Napster liable while avoiding the “tech mandate”/tech ban problem. To create a more consistent and beneficial doctrine, we should tweak - but not eviscerate - the Napster decision.

Interpreted broadly, Sony stands for the principle that we should let new technology develop completely unconstrained from secondary liability. As I have discussed elsewhere, I think Sony rule should actually be interpreted a little narrower. Sony stands for not using secondary liability to force tool-makers to modify how their tools operate, but secondary liabilty could apply to the tool-maker’s conduct in relation to the tool-user.

[...] [W]hat change would not affect non-infringing uses, definitively? We don’t know, and no weighing can properly take into account these undefined and thus indeterminately impacted uses. Sony understood this point - that by constraining the way a tool functioned, we risked impairing legitimate uses. The VCR ushered in “time-shifting,” a use that most people probably did not conceive of prior; it, and other technologies, could also usher in other untold uses, which would have been impacted by any change to the tools themselves. Telling Napster to respond to notices of infringement is consistent with this rule as well as with a rule that forces Morpheus to do nothing. One could sever Napster’s infringing uses from the non-infringing uses, known or not; by addressing their conduct only, new uses of the technology could continue to evolve. In so doing, we could get rid of the de facto “tech mandate” that effectively bans centralized P2P and thus no longer “reward inefficiency.”

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