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MislavMataijaSecondPaper 3 - 12 May 2009 - Main.JonathanBonilla
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The Flea Market and the Public Square – Giving the First Amendment a Say in Copyright | | | I found the comparison of flea markets and public squares a very useful and interesting way to structure your argument. It presents the way the courts look at intellectual property, and how they ought to look at it. However, at the end you bring up the "public benefit" discussion, which is an entirely separate paper by itself. Patent and copyright laws may have started out as an attempt to enrich society through giving monopoly rights, but that cost-benefit analysis is absent from today's decisions. It is nice that language from a 1948 case discusses the ideal of public benefit, but I am not sure it gets us anywhere unless we are able to completely restructure the way copyright laws are applied. This goes beyond the technology differences between VCRs and file-sharing, and must be a fundamental change in the way all copyright laws function. You are right to suggest that this ought to be a consideration in copyright law, but this suggestion seems to be tackling far larger issues than you originally presented. If you want to include this part, it seems a little more explanation would be required to explain that this is an issue for intellectual property rights as a whole.
-- MattDavisRatner - 12 May 2009 | |
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"First of all, it is based on a world of physical objects and places. An important assumption of the Sony safe harbor is that, once you own a thing (a VCR and a TV), you should be able to use it as you like"
I'm not so sure the physical / digital divide is a significant factor for whether the courts find secondary liability. A&M Records v. Abdallah found contributory liability where one sold audiotapes with pre-set lengths, for the purpose of others to use to illegally copy music, even when the defendant had no further part in the infringement that later occurred. The justification was that the defendant knew the tapes were being used for a largely illegal purpose, despite the fact that the tapes could have been used legally. I don't see this being too far away from file-sharing, with Abdallah acting like the network, held liable for the actions of others, some of which are non-infringing.
In any event, I think you might be interested in the ongoing (as far as I can tell) litigation of Arista v. Lime Group. Limewire is being sued under Grokster-type-liability theories, but unlike Grokster, Limewire was not stupidly-blatant about promoting the infringing use.
-- JonathanBonilla - 12 May 2009 | | |
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