KaZaA and Punishment

[Dave Farber <dave () farber net>]

> Date: Thu, 11 Sep 2003 07:13:37 -0700
> From: Mary Hodder <>
> Subject: KaZaA and Punishment
> To: dave () farber net
>
> 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.)

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