P2P File Sharing
Since the late 1990s one of the nation's
most intense legal battles has focused on so-called "peer-to-peer"
— or "P2P" — digital file sharing over
the Internet. Napster and dozens of like businesses distributed
software that allowed individual computer users to search
other users' computers for specified digital content and then
to download that content — without paying. The technology
is a tremendous tool for sharing information. The problem,
however, was that the files most often "shared"
were copyrighted music and video.
Legally speaking, it's been clear that copyright
owners may sue individuals who download (copy) protected content
without permission and without paying. Article I, Section
8 of the U.S. Constitution authorizes Congress to enact copyright
protection, and the First Congress did so. The copyright law,
as revised several times over the years, gives the authors
of creative content the exclusive right to market their material
for a specified time. The purpose of this special form of
property protection is to encourage creative enterprise.
Because P2P downloaders essentially usurp
copyright owners' right to sell and distribute their products
as they see fit, the downloaders clearly commit copyright
infringement. But what was much less clear was whether the
providers of P2P software also could be sued as "contributory"
infringers for knowingly making the tools of infringement
available. In the much-watched and hotly debated case of MGM
v. Grokster the Supreme Court in 2005 said yes — in circumstances
where the P2P business distributes its software with the clear
intent of fostering copyright infringement by its users.
With this ruling it might appear that no
legal battle remains. But globally, online theft of music
and video continues in huge numbers. Dozens of P2P networks
are alive internationally, and billions of illegal music downloads
occur annually. For copyright owners — even big music
and film companies — it's an enormous logistical challenge
to pursue enough legal claims against P2P companies and their
users to curb the infringement.
Furthermore, a broader, philosophical debate
still rages and is likely to continue for many years. On one
side are those artists and entertainment companies who see
strict enforcement of creative property rights as morally
correct and as an essential prerequisite to serious investment
in creative projects. On the other side are many consumers
who see application of copyright law to the Internet as a
suffocating force against their own expressive rights to sample
and share pieces of popular culture.
In a number of cases litigants have alleged
that aspects of federal copyright law violated the First Amendment
rights of consumers to reproduce, share and adapt others'
creative works. But these arguments have been unsuccessful,
partly because the copyright law itself has built-in accommodations
for free speech. One of these is that copyright distinguishes
between ideas and expression; there is no ownership protection
for ideas, only for creators' original manner of expression.
Another free-speech safeguard is the "fair use"
provision that allows copyrighted material to be used in limited
fashion, without consent, for such productive purposes as
criticism, news reporting, teaching and research.
