Law in the Internet Society

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DanielHarrisPaper1 9 - 17 Dec 2008 - Main.AndreiVoinigescu
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 Of course, I'd be delighted to effectively kill 106(3) for these small-time peer-to-peer cases. It would not definitively kill it, though--evidence of knowledge is still there and discoverable. Who installed the software (peoples' Kazaa usernames, as suits have shown, aren't always creative), who owned the computer when, when did the files get there, what is the user's sophistication, is the program "quiet?" Answering these questions requires effort and resources beyond the *AA's current shotgun approach to due process, but not prohibitive effort.

-- DanielHarris - 17 Dec 2008

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Daniel, I'm not convinced that eliminating "making available" or even 106(3) entirely would have any effect on the RIAA's litigation strategy.

As you point out, knowledge is still discoverable. The RIAA could seek discovery from hosts or seeders on allegations of contributory infringement. Rule 11 only requires that factual allegations "will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." While the RIAA has sent take-down notices to printers in the past, a fair proportion of the people they sue do probably share copyrighted content knowingly. That may not have been true 8 years ago, but fewer people today are truly clueless about the technical and legal details.

So long as we're modifying the copyright law anyway, why not simply lower the statutory damage minimum to $1 per work for non-commercial infringement?

-- AndreiVoinigescu - 17 Dec 2008

 
 
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Revision 9r9 - 17 Dec 2008 - 17:16:26 - AndreiVoinigescu
Revision 8r8 - 17 Dec 2008 - 06:38:09 - DanielHarris
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