The recording industry never sues innocent people, said the recording industry lawyer. Ah, but it threatens networked laser printers, said his fellow panelist.

The recording industry lawyer was, at that instant, arguing for the innocuousness of a strict-liability “making available” right under the 17 USC 106(3) exclusive right of distribution. You don’t need the processing power of a laser printer to poke holes in that argument: consider the case, not so far from one Eben brought up in class, of a computer-illiterate family member (younger child or great-grandmother perhaps) given an old laptop computer cast off by a recent college graduate.

The graduate might have left her carefully-assembled library of tens of thousands of songs on the laptop for her family member to enjoy. She might even have forgotten to turn off her peer-to-peer downloading software, set to automatically run in the background and share those sound recordings when the computer starts up. Even a proven so-called innocent infringement can leave our hapless victim liable for $200 per work, or $2 million for a not-extraordinary library of 10,000 songs.

The RIAA lawyer wants us to rely on what might be called prosecutorial discretion on the part of record labels. Although this discretion might prevent such a case from going before a jury, it has not yet stopped the sending of pre-litigation threats and settlement offers. As unlikely as the benevolence of record label lawyers is, it presents what is likely the most complete solution under the current copyright system.

We cannot fix this troubling situation without completely overhauling copyright as a property right. Applying copyright, a strict liability property right against the world, to intangible property--unlike tangible copyrighted works, one may reproduce, distribute, and perhaps even publicly display a bitstream without knowledge--leads to this result. Although a bookstore owner might unknowingly distribute, for instance, a lawfully-made copy of a tangible book, the doctrine of first sale in 17 USC 109 shields her from liability.

Like any good copyright visionary, I am unencumbered by practical considerations: treaty obligations, interest group influence, and so forth. Although the correct solution might be to rewrite the copyright system to take account of the nature of bitstreams, the imposition of a culpability requirement or the redefinition of “copy” or “tangible medium” might be too hard to swallow. Instead, I propose a solution that would impose a knowledge requirement on bitstream copyright infringement using existing law: amend (or interpret) § 106(3) to refer only to tangible copies.

Assume, for simplicity’s sake, a simple peer-to-peer system where one user (”D”) downloads each whole file from just one other user (”U”). It is clear that D is liable for infringement under 106(1) for reproducing the work. Even without 106(3), which current law would apply to U given evidence that the transfer actually occurred, U is liable for contributory infringement under 106(1). However, for the secondary liability to attach, U must contribute with knowledge of the infringing activity. Our innocent infringers are off the $200 per work hook, but intentional peer-to-peer uploaders remain liable.

When the record labels say they want to prevent the “theft” or “piracy” of music, much of the public is sympathetic. Despite music’s long and distinguished history as culture, in our society music has been commoditized, can be owned, bought and sold. To someone ignorant of recording industry economics, copyright infringement of music can easily be seen as taking money from the mouths of the proverbial starving artists.