Sharing and Stealing

AutorJessica Litman
Páginas453-491
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SHARING AND STEALING
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Anuario Andino de Derechos Intelectuales.
Año III - N.º 4. Lima, 2008
Sharing and Stealing
JESSICA LITMAN*
Sumary: Introduction. I. Someone Knows What I Want to Know.II. Formalities and Default Rules. III.
Digression: The Music of Room A-9. IV. Resetting the Default Rules.V. Sharing and Hoarding.
INTRODUCTION
The purpose of copyright is to encourage the creation and mass dissemination of
a wide variety of works. Until recently, most means of mass dissemination required a
signif‌i cant capital investment. Disseminators needed printing presses, trains or trucks,
warehouses, broadcast towers, or communications satellites. It made economic sense to
channel the lion’s share of the proceeds of copyrights to the publishers and distributors,
and the law was designed to facilitate that.1 Digital distribution raises the possibility of
mass dissemination without the assistance of professional distributors, via direct author-
to-consumer and consumer-to-consumer dissemination. Digital distribution, thus, invites
us to reconsider the assumptions underlying the conventional copyright model.
We are still in the early history of the networked digital environment, but already
we’ve seen experiments with both direct and consumer-to-consumer distribution of
works of authorship. Direct author distribution – by itself – has not yet garnered a lot
of attention because the most publicized efforts have been less than wholly successful.2
* Professor of Law, Wayne State University. Jon Weinberg’s suggestions greatly improved this paper. I’m also
grateful to Jane Ginsburg, Justin Hughes, David Lametti, Lydia Pallas Loren, Kevin Marks, Neil Netanel,
Richard Stallman, and Fred Von Lohmann, who gave me very helpful comments on earlier drafts, and to
Mike Carroll, Anupam Chander, Peggy Radin, and Tim Wu, whose criticism of a much earlier version
persuaded me to take a different approach. All URL citations are up to date as of September 20, 2004. Este
artículo fue publicado en P.S. Berman, editor. In Law and Society Approaches to Cyberspace, 421. The
International Library of Essays in Law and Society. London: Ashgate, 2007. (Originally published under
the same title in Hastings Comm. & Ent. L.J. 27, N.º 1 (2004-2005): 1-50.). Se reproduce con expresa
autorización del autor.
1 See Benjamin KAPLAN, An Unhurried View Of Copyright 75 (1966); Jessica LITMAN, Digital Copyright
104 (2001); see, e.g., American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir. 1994) (“the monopoly
privileges conferred by copyright protection and the potential f‌i nancial rewards therefrom are not directly
serving to motivate authors to write individual articles; rather, they serve to motivate publishers to produce
journals, which provide the conventional and often exclusive means for disseminating these individual
articles”).
2 Stephen King’s The Plant has been the most famous example of the direct distribution model. Stephen
King promised to keep writing the novel so long as three quarters of the individuals who downloaded
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When direct author distribution is augmented by consumer-to-consumer distribution,
though, the combination has the potential to revolutionize the distribution chain. That
potential has not escaped the attention of professional distributors. Consumer-to-con-
sumer dissemination, especially in the form of peer-to-peer f‌i le sharing, has been met
with hostility and panic.3 Legislation pending in Congress seeks to deter consumers
from engaging in peer-to-peer f‌i le sharing.4 Meanwhile, representatives of the music,
recording and f‌i lm industries have sued the purveyors of peer-to-peer f‌i le sharing soft-
ware,5 the Internet service providers who enable consumers to trade f‌i les,6 and more
than 5000 individual consumers accused of making recorded music available to other
consumers over the Internet.7
In this paper, I propose that we look for some of the answers to the vexing problem
of unauthorized exchange of music f‌i les on the Internet in the wisdom intellectual pro-
perty law has accumulated about the protection and distribution of factual information. In
particular, I analyze the digital information resource that has developed on the Internet,
and suggest that what we should be trying to achieve is an online musical smorgasbord of
comparable breadth and variety.
Ten years ago, an inf‌l uential government task force proposed enhancing the scope of
intellectual property rights in the digital environment as a device to encourage investment
in the infrastructure underlying a national digital network.8 As the task force explained,
the cost of constructing such a network was beyond the federal government’s ability to
fund, and the construction would need to be undertaken by the private sector. The private
each chapter paid a dollar for it. Initially, 76% of the people who downloaded chapters paid. After 4
chapters, the percentage of paying readers dropped to 46%, and King dropped the project. See M.J. Rose,
Stephen King’s “Plant” Uprooted, WIREDNEWS, Nov. 28, 2000, at http://www.wired.com/news/cul-
ture/0,1284,40356,00.html. While 46% probably exceeds the percentage of paying readers of a typical
work of King f‌i ction published in book form (allowing for book borrowers, used book purchasers, etc.),
it fell below King’s announced minimum.
3 It is not yet clear whether peer-to-peer f‌i le sharing of music recordings decreases or increases sales of
CDs. Compare Felix Oberholzer & Koleman Strumpf, The Effect of File Sharing on Record Sales: An
Empirical Analysis (March 2004), available at http://www.unc.edu/~cigar/papers/FileSharing_March2004.
pdf (concluding that f‌i le sharing does not reduce and may increase sales), with Stan Liebowitz, Will MP3
Downloads Annihilate the Record Industry? The Evidence So Far (June 2003), available at http://www.
utdallas.edu/~liebowit/intprop/records.pdf (attributing decline in CD sales to P2P f‌i le sharing). See also
Lawrence LESSIG, Free Culture 68-73 (2004).
4 See H.R. 2572, 108th Cong.. (2003); H.R. 2517, 108th Cong. (2003); H.R. 4077, 108th Cong.,(2004); S.
2560, 108th Cong. (2004).
5 See MGM v. Grokster, 380 F.3d 1154 (9th Cir. 2004); A&M v. Napster, 239 F.3d 1004 (9th Cir. 2001); In
re Aimster, 334 F.3d 643 (7th Cir. 2003)
6 See RIAA v. Verizon, 351 F.3d 1229 (D.C. Cir. 2003). . .
7 See RIAA, Recording Industry Begins Suing P2P File Sharers Who Illegally Offer Copyrighted Music
Online, Sept. 8, 2003, at http://www.riaa.com/news/newsletter/090803.asp; Jefferson Graham, Freeze!
Drop the song! File-swappers targeted, USA TODAY, October 8, 2004, at 3B.
8 See Information Infrastructure Task Force, Intellectual Property And The National Information Infrastruc-
ture: The Report Of The Working Group On Intellectual Property Rights 7-17, 218-38 (1995).
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sector, however, would be reluctant to invest its resources unless it saw prof‌i ts to be made.
The network would be commercial only if large numbers of people could be persuaded
to subscribe to digital network services, which would require a killer application to draw
people online. In the view of the task force, that application was the possibility consumers
could enjoy movies, music and other content on demand. Enhanced copyright protection
would be needed to persuade the producers of movies, music and other content to make the
investment in making their material available over the national digital network. In order
to create a viable online information and entertainment resource, the task force concluded,
the United States needed to promise the distributors of copyrighted works a larger share
of the copyright pie – only then would they invest the resources needed to develop digital
content that would be suff‌i ciently compelling to convince ordinary consumers to pay for
Internet access.9
With the benef‌i t of hindsight, it’s become clear that most of the assumptions under-
lying that argument were wrong. Greatly expanded copyright has not yet encouraged
movies or music online – there is an enormous variety of music and movies available over
the Internet, but the overwhelming majority of what’s there is there over the vehement
objections of the content owners. Nonetheless, the network has grown at an unbelievable
rate. The killer application that fueled the growth of the Internet wasn’t digital movies,
after all. Instead, it was communication – email, chat, online forums and personal web
pages. It turns out that people want to communicate with one another, and that they love
to share. The information space that has grown up on the World Wide Web is largely
the result of anarchic volunteerism – not to build the pipes, which have been constructed
by telephone and cable companies to meet consumer demand for broadband Internet
access,10 but to supply the information that runs through them. Anecdotal evidence
indicates that at least for some material, untamed digital sharing turns out to be a more
eff‌i cient method of distribution than either paid subscription or the sale of conventional
copies. If untamed anarchic digital sharing is a superior distribution mechanism, or
even a useful adjunct to conventional distribution, we ought to encourage it rather than
make it more diff‌i cult.
Part I of this essay explores the burgeoning digital information space that has
grown up on the Internet in the last two decades. In Part II, I review the legal obstacles
preventing us from simply treating digital music the way we treat digital information.
Amendments to the copyright law enacted over the past 30 years have erected legal
barriers to consumer-to-consumer distribution that make lawful exchange of copyrig-
hted material extremely diff‌i cult. Part III tells a true story about my son’s third grade
classroom, and spends a brief moment looking at his teacher’s use of the resources she
f‌i nds on the Internet. Part IV suggests that we look to the digital information space
described in Part I as a model for crafting a solution to the controversy over peer-to-peer
9 Id.; LITMAN, supra note 1, at 89-100.
10 See, e.g., Jim Hu, Broadband Numbers Show Heightened Demand, C|NET NEWS.COM (October 31,
2003), at http://news.com.com/2100-1034-5100321.html; Matt Richtel, Fast and Furious: The Race to
Wire America, N.Y. Times, Nov. 16, 2003, § 3 at 1.

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