Sony, Tort Doctrines, and the Puzzle of Peer-to-Peer

Abstract

This Article analyzes and reconstructs the law of third party copyright liability as it applies to providers of peer-to-peer technology. By doing so, the Article accomplishes three things. First, it identifies doctrinal tension between broad third party copyright liability endorsed by lower courts and the Supreme Court’s skepticism of such liability as expressed in Sony Corporation of America v. Universal City Studios. Second, it describes how existing interpretations of the law fail to direct judicial attention to important considerations that ought to influence the third party copyright liability of peer-to-peer providers. Third, it uses concepts borrowed from common law torts to improve the law by resolving doctrinal tension and directing judicial attention to important considerations that are presently overlooked. An effective doctrinal analysis of the peer-to-peer puzzle has proven elusive because the existing law of third party copyright liability does not cogently analyze facts important to the liability of peer-to-peer providers. As an intuitive matter, the third party copyright liability of any technology provider ought to depend on two things. First, it matters why the defendant created or distributed the technology. A defendant who creates technology and hopes that others will use it to infringe becomes culpable in a way that strongly supports liability. By contrast, a defendant who acts to facilitate noninfringing behavior is far less culpable if it turns out that others deliberately misuse the defendant’s technology to infringe, and the case for his liability would be debatable. Second, it matters what the social costs and benefits of a particular technology are. Peer-to-peer technology obviously causes copyright infringement, but there are social benefits associated with the technology as well. People can use peer-to-peer networks to distribute copies of their own work, public domain works, and works they have permission to distribute. Peer-to-peer networks are also relatively easy to maintain and reliable because they frequently operate with little reliance upon a central actor whose disruption will destroy the network. These relative costs and benefits need to be measured, and it is likely that they will vary with the design of particular peer-to-peer systems. Liability makes more sense when the infringement associated with a particular system seems large in relation to any anticipated social benefits, and it makes less sense when the amount of infringement seems small in relation to those benefits. Unfortunately, the doctrinal elements that govern third party copyright liability do not direct judicial attention to these considerations. Vicarious liability depends on a defendant’s control over and financial interest in another’s infringement, while contributory liability depends on a defendant’s knowledge of and contribution to another’s infringement. These elements may affect the desirability of third party liability, but they do not get to the heart of the matter. Courts will therefore find it almost impossible to construct an effective solution to the peer-to-peer puzzle without reconstructing the law of the third party copyright liability. This Article will show that the application of common law tort principles accomplishes the necessary reconstruction. In so doing, the Article does not argue for a particular result in any particular case. The point is simply to demonstrate that principles drawn from intentional torts, negligence, respondeat superior, and strict products liability do better than existing doctrine at accounting for the motivations of defendants and the social costs and benefits of peer-to-peer technology. If courts were to use these principles to analyze peer-to-peer cases, their analysis of peer-to-peer cases would become more responsive to basic policy concerns and the wisdom of Sony. This increases the likelihood of decisions that serve the greater public good.