Code Wars

Code Wars

10 Years of P2P Software Litigation

Rebecca Giblin

With reference to US, UK, Canadian and Australian secondary liability regimes, this insightful book develops a compelling new theory to explain why a decade of ostensibly successful litigation failed to reduce the number, variety or availability of P2P file sharing applications – and highlights ways the law might need to change if it is to have any meaningful effect in future.

Chapter 8: Endgame: More P2P Software Providers than Ever Before

Rebecca Giblin

Subjects: law - academic, intellectual property law


Battles won. War lost. By late 2005 rights holders had litigated their way to an excellent position. Under US law, they had brought about the creation of a strong cause of action that could be used against any party that they could demonstrate had “bad intent”. And under Australian law, they had discovered an attractive and flexible cause of action that had the potential to be much more advantageous than its US counterparts where no evidence of bad intent could be found. However, Sharman and Grokster effectively marked the end of the litigation campaign against P2P software providers. In part, this can be attributed to the fact that most of the existing commercial operators had overwhelmingly engaged in the same kind of badacting behavior as that which had supported the finding of inducement in Grokster. Seeing the writing on the wall, most of them quickly negotiated settlements and quietly exited the market.1 Lime Group LLC was the only major holdout in this category, and the last scalp claimed in the P2P litigation campaign: as chronicled in Chapter 5, the District Court engaged in a straightforward application of the inducement doctrine, and this time had no hesitation in granting summary judgment in the plaintiffs’ favor.2 But this is not to say that P2P software development ceased after those decisions were handed down. In fact, the opposite is true: there was actually an explosion in the number of P2P file sharing programs available for users to download. By 2007, online software repository...

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