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Can the Riaa Survive Substantial Non-Infringing Uses?

51 Pages Posted: 11 Jan 2005  

James Brian Beckham

affiliation not provided to SSRN

Date Written: June 2004


In light of the precedent established in Sony, and in response to recent litigation regarding P2P networks, the question arises: Is substantial non-infringing uses still a viable standard in the information age? More specifically, is substantial non-infringing uses still a viable standard in the P2P context, i.e. can the goals of copyright law - to promote creativity while expanding the public domain - be reconciled with this new technology?

This submission discusses Peer-to-peer (P2P) file-sharing cases as they relate to rights in digital media. The recent problems involving P2P stem from the Supreme Court Sony-Betamax case of 1984, which held that a device which facilitates copyright infringement by end-users will not create vendor liability if it is capable of a non-infringing use. This piece takes issue with the scope of the Sony decision, and beginning with an overview of the applicable legal terrain, and several notable cases in this context, moves on to discuss the proper standard to be applied in cases involving a charge of contributory copyright infringement. The paper next discusses the recent Grokster and Aimster cases, and the standards applied in those recent cases alleging manufacturer liability for contributory copyright infringement. My position is that the Seventh Circuit gives the Sony case a more plausible reading by taking a balancing approach to the intent of software distributors and the harms to rights holders - something mandated (and certainly to be revisited by the Supreme Court) by Sony, and that the Ninth Circuit glosses over the import of their decision, and employs a misplaced reliance on Sony.

From Sony to present, part II of this comment will explore some of the cases using substantial non-infringing uses as a defense and phenomenon which led to this discord in copyright jurisprudence between the rights of content owners and consumers. Part III will explore cases on opposite sides of the spectrum for finding of liability for vicarious or contributory copyright infringement and suggest that courts faced with the defense of substantial non-infringing uses employ a fact intensive approach utilizing the balancing of interests mandate given by the Court in Sony, or in the alternative, that legislative action may be necessary. Part IV will conclude with some final remarks about the direction of the doctrine, and possible solutions content owners can implement to stave off unauthorized distribution of protected works.

Keywords: RIAA, Sony, p2p, filesharing, substantial non-infringing uses, fair use, music, downloading

Suggested Citation

Beckham, James Brian, Can the Riaa Survive Substantial Non-Infringing Uses? (June 2004). Available at SSRN: or

James Beckham (Contact Author)

affiliation not provided to SSRN

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