Jon Pareles’s Times piece last Friday about music downloading offers a useful perspective on how quickly peer-to-peer technologies are being normalized, even while they are still being demonized. Pair the Third Circuit’s decision in the Pennsylvania Internet Child Pornography Act case and the Copyright Office’s support for legislative efforts to limit the value of the Supreme Court’s Betamax opinion and you see a related duality. Can we be living in both universes at the same time?
I’m reminded of this division by other developments of recent days: EFF has posted a pdf of the Copyright Office’s proposal regarding the INDUCE Act and codification of secondary liability in the copyright statute. I’m not going to be the one to argue that the language proposed by the Office could make the Internet illegal — because offering ISP service is “a cause of infringing public dissemination of copyrighted works” and at least one of the three additional qualifying conditions would often apply. But the proposal comes with tremendous risk: Even “normal” Internet use leads to copyright infringement, as a technical matter. Demonizing that use isn’t the goal of the Copyright Office, and it’s not the goal of the law. But the goals of the copyright statute and sensible application of the copyright statute are often in tension with one another. Normalization of a technology often brings implicit but strong limits on how it is used. Demonizing that use can disrupt that process. For the most recent example of that principle, look to Bridgeport Music v. Dimension Films, from the Sixth Circuit.