Peer-to-Peer Technology as Infrastructure: An Economic Argument for Retaining Sony's Safe Harbor for Technologies Capable of Substantial Noninfringing Uses

Journal of the Copyright Society of the U.S.A., p. 329, 2005

16 Pages Posted: 23 May 2005  

Brett M. Frischmann

Yeshiva University - Benjamin N. Cardozo School of Law

Abstract

In Metro-Goldwyn-Mayer Studios v. Grokster, the Supreme Court will decide the future of Betamax - not the technology, which is already dead, but the Betamax decision issued by the Supreme Court in 1984. As frequently occurs in copyright law, it is a new, disruptive technology - this time, peer-to-peer (p2p) technology - that tests the boundaries and soundness of existing copyright doctrine.

This essay makes two basic points. First, the Sony rule, which precludes secondary liability in situations where a technology is capable of substantial noninfringing uses, properly limits the scope of copyrights and prevents them from impeding access to and development of infrastructural technologies, such as p2p systems. Second, commercial significance is an inappropriate metric for gauging the substantiality of noninfringing uses; commercially insignificant but socially valuable noninfringing uses should be recognized as substantial. For the most part, the parties and amici have presented the Supreme Court with the arguments it ought to evaluate. I do not aim to recount or rehash those arguments in this essay. Instead, I aim to articulate an economic argument for retaining the Sony rule that has not been made fully.

Keywords: copyright, grokster, napster, peer-to-peer, p2p, noninfringing use, Sony, infrastructure, contributory liability, vicarious liability

JEL Classification: D60, D62, D80, K10, K11, K13, K39, O30, O31, O34

Suggested Citation

Frischmann , Brett M., Peer-to-Peer Technology as Infrastructure: An Economic Argument for Retaining Sony's Safe Harbor for Technologies Capable of Substantial Noninfringing Uses. Journal of the Copyright Society of the U.S.A., p. 329, 2005. Available at SSRN: https://ssrn.com/abstract=726413

Brett M. Frischmann (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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