Physical World Assumptions and Software World Realities (and Why There are More P2P Software Providers than Ever Before)

62 Pages Posted: 31 Jan 2012

See all articles by Rebecca Giblin

Rebecca Giblin

Monash University - Faculty of Law

Abstract

Rights holders have been successful in every major copyright action brought against peer-to-peer (P2P) software providers. By 2005, those behind Napster, Aimster, Grokster, Morpheus and Kazaa have each been held liable for their users’ infringements and effectively exited the market. But those successes did not result in any reduction in the availability of P2P file sharing software. In fact, the opposite occurred: soon after the U.S. Supreme Court ruled in favor of rights holders in Grokster, there was exponential growth in the number of P2P file sharing applications available. This Article argues that this came about because the pre-P2P and current U.S. secondary liability laws were and are based on a number of physical world assumptions that are simply not tenable in the software context. After identifying those assumptions, and contrasting them with the relevant software world realities, the Article demonstrates that the explosion in the number and availability of P2P apps can be traced directly to the Supreme Court’s failure to recognize the mismatch between the two paradigms.

Keywords: P2P, secondary liability, inducement, contributory infringement, contributory liability, vicarious infringement, vicarious liability, code is law, then code isn't law, anti-regulatory code, Lessig, Wu, Code wars, Giblin

JEL Classification: O30, O31, O32, O33, O34, O35, O36, O37, O38, O39

Suggested Citation

Giblin, Rebecca, Physical World Assumptions and Software World Realities (and Why There are More P2P Software Providers than Ever Before). Columbia Journal of Law & the Arts, Vol. 35, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=1992711

Rebecca Giblin (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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