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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.
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Chapter 2: Applying the Pre-P2P Law to Napster

Rebecca Giblin


Since Napster Inc did not itself engage in any direct infringement, the lawsuits against it alleged that it was secondarily liable for the third party infringements being committed by its users. Since secondary liability is not directly covered by the terms of any international copyright treaties, laws dealing with it differ considerably between jurisdictions. This chapter outlines the scope and content of the US secondary liability law as it existed immediately before the advent of P2P file sharing technologies, and highlights its underlying physical world assumptions. It then describes how that law was applied to Napster Inc. Its focus is on the ways in which the failure of courts to recognize the ways in which P2P file sharing technologies differed from their physical world predecessors triggered full-blown exploitation of the physical world/software world divide.

The pre-P2P US copyright law allowed secondary liability to be imposed on a defendant in accordance with two main doctrines – contributory and vicarious infringement. Historically, the two have often been combined and confused.1 However, while they can overlap where the facts satisfy the elements of each, they are now accepted as constituting wholly independent doctrines.2

The modern formulation of vicarious liability for copyright infringement developed from respondeat superior, a legal doctrine which is concerned with the liability of employers for the torts of their employees.3 Its roots lie in the tort theory of enterprise liability,4 which holds that enterprises should internalize losses that are caused by their existence as...

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