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Tuesday, January 3, 2006

Article on P2P File Sharing in Southern Illinois Law Journal

Michael Botein, Professor of Law, New York Law School, and Visiting Professor, Southern Illinois University Law School, and Edward Samuels, an intellectual property consultant in New York City, are publishing "Compulsory Licenses in Peer-to-Peer File Sharing: A Workable Solution?" in volume 18 of the Southern Illinois University Law Journal. Here is the introduction.

Peer-to-peer sharing of creative works over the Internet poses a particularly thorny issue for copyright law. On the one hand, full copyright liability may seem inappropriate in such an environment, since it might inhibit the broad dissemination of creative works promised by the new technology. On the other hand, carte blanche immunity from copyright liability might erode the commercial value of creative works.

In an effort to chart a course between the two unsatisfactory extremes, some commentators have recently proposed a compulsory license to authorize and regulate the peer-to-peer distribution of copyrighted works, primarily over the Internet.

We are sympathetic with the goals of such a compromise, and believe that the issues need to be fully aired. Nevertheless, we remain skeptical about the feasibility of implementing such a system. To this end, we think it worthwhile to take a brief look at the history of compulsory copyright licenses in a number of different settings. As will be seen, compulsory licenses have been less than successful in implementing public policy goals.

To begin with, compulsory licenses are not new to intellectual property. They have been invoked to resolve several troublesome technological issues, primarily in the past quarter of a century. Some compulsory licenses have been moderately successful, but their general track record is disappointing. At best, these licenses should be viewed as interim arrangements to preserve a balance between the extremes of full and no liability during periods of technological or other change. But such arrangements are not as successful as, and should yield as soon as possible to, private systems of compensation. Even after 210 years of copyright law in this country and in the face of new technologies, private arrangements still best serve the public interest in encouraging both the creation and dissemination of new works.

As a backdrop for considering a new license in the peer-to-peer environment, this paper reviews existing compulsory licenses. We first discuss the audio compulsory licenses: (1) the original compulsory license for mechanical reproduction of phonorecords, established in the Copyright Act of 1909 and preserved in section 115 of the current Act;(2) the jukebox compulsory license, enacted as section 116 of the 1976 Copyright Act, and repealed in 1993; (3) the digital audio home recording royalty, established in 1992 in chapter ten of the Copyright Act; and (4) the digital performance right in sound recordings license, established in 1995, set out in section 114 of the current Act.

Because the technology and the economics of the video market are different from those of the audio market, however, we will review separately the television compulsory licenses, primarily focusing upon (5) the cable compulsory license, adopted as section 111 of the 1976 Act. We also will briefly consider: (6) the public broadcasting license established in section 118; (7) the satellite retransmission license enacted in 1988, as set forth in section 119; and (8) the local-to-local retransmission license enacted in 1999 as section 122 of the current Act. We will conclude by considering other aspects of the copyright system that should be borne in mind as we contemplate the adoption of yet another compulsory licensing system.

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