Chapter 9: Can the Secondary Liability Law Respond to Code’s Revolutionary Nature?
So far this book has told the story of the beginning of the P2P file sharing era, tracing the way in which the law and technology evolved in response to efforts by rights holders to end the resulting infringement, and explaining how, after a decade of ostensibly successful litigation, there came to be more P2P file sharing software providers than ever before. It de-masked the revolutionary nature of software code, and highlighted how the physical world assumptions on which the existing law is based cripple its ability to respond to the P2P phenomenon. This final chapter now asks whether the secondary liability law can be reformulated in a way that better responds to the challenges posed by code-based distribution technologies. Starting point: the reasonable alternative design standard Its starting point is the reasonable alternative design standard proposed in 2007 by Menell and Nimmer in one of the most serious, far-reaching and principled attempts to date to fix the problems that permeate the existing secondary liability law. Their proposal has the stated aim of providing “a more flexible framework for addressing the challenges of new technology”.1 Menell and Nimmer persuasively argue that, instead of importing patent law principles to resolve the Betamax case, the 1984 Supreme Court should have adopted a “reasonable alternative design” model like the one incorporated into the US products liability law. This would have been consistent with prior evolutions of the law governing secondary liability for copyright infringement: like contributory and vicarious infringement, the origins of...
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