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DanielHarrisPaper1 6 - 10 Dec 2008 - Main.StevenHwang
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Open for comments and edits. | | | However, the main argument the recording industry would raise against my proposed reform is one which has so far failed to get much public sympathy. We need a “making available” right under § 106(3), says the argument, because proving infringement under the law is too hard. This argument, however, applies just as easily to cases of tangible copyright infringement on an equivalent small scale. When my classmates in Hong Kong made photocopies of reserve course books, they were mechanically reproducing tangible works and creating new tangible copies. This seems just as impractical to police as does networked peer-to-peer sharing, and it might even be more difficult. Yet, nobody argues that leaving a book on a desk constitutes an infringing act of “making available.” Although some might scoff at the idea that someone would bother to photocopy each page of a book, the majority of my classmates did this--with the aid of student workers, paid by the university, at the campus copy center. I have seen graduate students at Columbia using one of the rare scanners in the Columbia libraries to do functionally the same.
This illustrates a sort of threshold, in the tangible world, between small-scale infringement for personal use and large-scale activities attracting attention of copyright holders and law enforcement. When one user burns a copy of Windows XP and gives it to a friend, Microsoft is clueless (and probably appreciates the market share). When a business outfits an entire office with pirated copies of Windows, or when factories in China press copies for sale on the street, Microsoft takes notice. The assertion of a “making available” right and failure of courts to uphold due process lets the sinking recording industry lash out at the small-scale infringers among its dwindling clientele in a way that was impossible before our world of intangible works. No longer being able to use the lower burdens of § 106(3) as a strict-liability cudgel against small infringers would merely restore the natural balance in copyright enforcement.
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I added a comment box into your page--I hope you don't mind.
I enjoyed reading your essay, and it gives a pretty simple straightforward description of the issues and why they're important. Regarding the knowledge requirement for 106(3)--wouldn't this in practice end the applicability of 106(3) to p2p filesharing, given that sharing is enabled by default and runs in the background? It seems like anyone could claim that they didn't know or intend to share. It's not like other knowledge requirements, where prosecutors can at least show that the defendants "reasonably should have known." Or is it?
Not that it would be a bad thing to effectively kill 106(3) for p2p, but I was just wondering what your thoughts were on actual practicality from the prosecutor's standpoint.
-Steve
-- StevenHwang - 10 Dec 2008
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