Direct Infringement on Peer-to-Peer Networks

In 2001, the Ninth Circuit affirmed a trial court decision that some 75 million Americans were infringing copyright by exchanging music files in the MP3 format via a peer-to-peer (P2P) network known as Napster. The breathtaking sweep of this holding - that almost one quarter of the population of the United States was engaging in illegal (and likely criminal) activity - was reason enough to give the case a second look. But most of the scholarly attention lavished on the Napster case focused on Napster's secondary liability for providing the technology of infringement. There has been little analysis of the primary infringement committed by Napster's users. Indeed, the alleged primary infringement of P2P users seems to be an example of a phenomenon one sometimes encounters in the common law: A case finds liability, with little or no analysis. A later case also finds liability, with no independent analysis, citing the first case. A third case does the same, citing the first two cases. Before long, the principle of liability is declared to be well-settled, despite an almost complete lack of reasoning supporting the principle. The so-called RAM copy doctrine, discussed below, is a good example of this phenomenon. Direct P2P infringement seems destined to be another: While Napster, the first of the P2P cases, at least briefly discusses the basis for the direct liability of Napster's users, later cases have done little more than mention that P2P users infringe copyright, as if it were self-evident. In this article, I will analyze the activities of P2P users to determine more precisely which, if any, of their actions infringe copyright. I suggest that one reason courts do not delve more deeply into the question of direct infringement is that in fully-litigated cases, the alleged direct infringers are not before the courts; their rights are being adjudicated in absentia. Moreover, the actual defendants in these cases - the alleged secondary infringers - are poor proxies for the users of P2P networks and have no incentive to promote clear judicial analysis, because clear analysis will result in secondary liability. Yet it is important from a policy standpoint to be clear about which activities infringe and which do not. Part II of this Article will describe the process of copyright lawmaking and the recent evolution of copyright law in response to technology. This discussion will include a brief description of conventional and P2P network technology. A copyright analysis of user activities on P2P networks follows in Part III, which argues that the nature of copyright legislation requires courts to be especially careful and precise in determining the contours of infringing noncommercial conduct by members of the public. The analysis in Part III will lead to the conclusion that copying by P2P users does not infringe copyright, but distribution does. In Part IV, I address some strategic considerations affecting copyright enforcement and P2P networks, and I will argue that the rights of consumers to use copyrighted works are gravely threatened by the current of litigation against secondary infringers. Finally, I propose the reinvigoration of Sony as a way to preserve the public benefit of P2P technology.