Intellectual Property Thoughts

On file sharing and Wal-Mark, the Commenters seem to be handling things reasonably well. Here are just a few thoughts.

First, file sharing of copyrighted material via P2P systems can be legal. Among other things, section 107 of the Copyright Act (the famous, or infamous) fair use provision, applies to all forms of reproducing, distributing and modifying copyrighted works. That said, it strikes me as implausible that making thousands of mp3s accessible to users of the Grokster system (to pick just one example) could be characterized as fair use. But the RIAA overreaches when it asserts that file sharing is per se illegal. It's not, and no appellate court -- even the Napster and Aimster cases -- has ever held that it is.

Second, everyone should be very careful around terms and phrases like "piracy" and "theft." These are metaphors, and metaphors are complex things. I suspect that it's enough to point out that habitually burning copies of DVDs that you get from NetFlix is just wrong.

Third, there's no question that the recording industry has lost money on account of use of P2P networks. How much money has been lost is open to question. And whether law and public policy should care about those losses (or some of them) is also open to question. Publishing industries lose money all the time. Copyright law sometimes says: that's just fine.

Fourth, the CMU student who criticized Wal-Mart would have been better off legally if he'd been funny, or if he'd created his own images. But we shouldn't have a legal rule that says you can't criticize unless you're funny, and we shouldn't have a legal rule that says you can't criticize using the target's words and images. We criticize people all the time without being funny, and we frequently do so using techniques of mindless repetition. Free speech sometimes means the right to say, "Me, too." (If you want an example, think about voting, which may be the ultimate act of free speech.) The real problem in the CMU case was that Wal-Mart could use a copyright law sledgehammer to deal with a small-potatoes potential problem that trademark law has relatively little trouble with.