Date: Thu, 11 Sep 2003 07:13:37 -0700
From: Mary Hodder <>
Subject: KaZaA and Punishment
To: dave@xxxxxxxxxx
Please remove just my email address. TX
KaZaA and Punishment
By Douglas Lichtman
488 words
10 September 2003
The Wall Street Journal
A24
The federal courts have over the past two years struggled to understand why
Grokster, KaZaA, and related Internet entities should be held accountable
for their role in online music piracy. On Monday, and in no uncertain terms,
the music industry answered the question: If the courts refuse to hold
Internet intermediaries adequately accountable, copyright holders will have
no choice but to file suit against the individuals who use those
intermediaries to infringe.
---
Courts have been reluctant to impose liability on Grokster and its ilk for
the simple reason that these entities do not directly commit the alleged bad
acts. Just as a steak knife can be used both to facilitate the consumption
of a good meal and to separate a businessman from his wallet, Grokster and
KaZaA have both legal and illegal applications. Why hold providers of tools
and services responsible, and perhaps inadvertently interfere with
legitimate activity, when it is the individual users who have final say over
whether steak knives and peer-to-peer technology are used for good or ill?
That logic has appeal, but it inevitably leads to the events of Monday
morning: 261 lawsuits filed against specific individuals randomly chosen
from among the millions who have engaged in the unauthorized distribution of
copyrighted music online.
The better approach from a public policy perspective would be for the law to
immunize these individuals from liability and facilitate instead meaningful
litigation between the bigger parties. Such an approach would bring before
the court those entities best positioned to articulate the complicated
trade-offs inherent in applying copyright law to the Internet. That is,
KaZaA and the music industry can both afford to hire fancy lawyers who can
in turn lay bare central issues; and litigation between these two behemoths
is sure to, at the same time, attract the helpful attention of public
advocacy organizations like the Electronic Frontier Foundation who can
further ensure that the public interest is represented in court. Individual
defendants, by contrast, lack the resources necessary to put up this good
fight, and they face enormous pressure to preserve their bank accounts by
quickly and quietly settling.
Moreover, lawsuits against individuals have a disquieting randomness to
them, and that should give the legal system serious pause. To hold
accountable only a handful of the individuals who swapped songs without
permission -- to extract steep damages from those unlucky few while leaving
millions of equally culpable peers untouched -- smacks of unequal justice.
Admittedly, sometimes judicial inequality is a necessary evil; where
intermediaries can effectively be held accountable, it is not.
In short, let KaZaA and Grokster profit from their technology and then pay
for their crimes. And let the college student, whose crime is something
between an arrogant disregard for existing law and a praiseworthy enthusiasm
for the technologic future to come, walk free.
---
Mr. Lichtman is a professor of law at the University of Chicago Law School.
(Copyright (c) 2003, Dow Jones & Company, Inc.)