That is the position taken by Chicago Law Professor Douglas Lichtman in a recent Wall Street Journal article, according to A Copyfighter's Musings' Derek Slater (Sue the Services, Not the People?). Prof. Lichtman apparently argues that indirect copyright liability for technology providers is often a better way to deal with copyright infringement than directly suing infringers. In other words, make Kazaa liable, not the people uploading music files. I haven't read the article because I don't have a subscription to the Wall Street Journal and the article is not freely available online. The position taken by Prof. Lichtman doesn't surprise me, however, since he has signed an amicus brief [PDF] in the Kazaa case urging something similar and he has also co-authored a Harvard Journal of Law and Technology article on the same issue (Indirect Liability for Copyright Infringement: An Economic Perspective [PDF]). Derek does a good job raising the concerns regarding the effect such a position would have on the development of and innovation in new computer software.
Frankly, I'm not sure how the internet could have developed had Prof. Lichtman's position been adopted back in the 70s. Heck, I'm not even sure if the personal computer (the world's greatest copying device) could have evolved as it has, were such a broad definition of liability adopted. Seriously, would computers have been allowed to have CD drives that didn't incorporate DRM? Would computers have been allowed to have CD-R drives that could produce Red Book compatible CDs? I highly doubt it, and I don't think that would be a good thing. Many more criticisms can be made of Prof. Lichtman's proposal and perhaps I'll make them, if I get a chance to see the WSJ article.
UPDATE: We've received permission to post the text of Lichtman's article. Also, the Legal Theory Blog has some comments on this issue (Lichtman on the RIAA Litigation Offensive).
Lichtman Article:
KaZaA and Punishment
The federal courts have over the past two years struggled to understand why Grokster, KaZaA, and related Internet entities should be held accountable for their role in online music piracy. On Monday, and in no uncertain terms, the music industry answered the question: if the courts refuse to hold Internet intermediaries adequately accountable, copyright holders will have no choice but to file suit against the individuals who use those intermediaries to infringe.
Courts have been reluctant to impose liability on Grokster and its ilk for the simple reason that these entities do not directly commit the alleged bad acts. Just as a steak knife can be used both to facilitate the consumption of a good meal and to separate a businessman from his wallet, Grokster and KaZaA have both legal and illegal applications. Why hold providers of tools and services responsible, and perhaps inadvertently interfere with legitimate activity, when it is the individual users who have final say over whether steak knives and peer-to-peer technology are used for good or ill?
That logic has appeal, but it inevitably leads to the events of Monday morning: 261 lawsuits filed against specific individuals randomly chosen from among the millions who have engaged in the unauthorized distribution of copyrighted music online.
The better approach from a public policy perspective would be for the law to immunize these individuals from liability and facilitate instead meaningful litigation between the bigger parties. Such an approach would bring before the court those entities best positioned to articulate the complicated tradeoffs inherent in applying copyright law to the Internet. That is, KaZaA and the music industry can both afford to hire fancy lawyers who can in turn lay bare central issues; and litigation between these two behemoths is sure to at the same time attract the helpful attention of public advocacy organizations like the Electronic Frontier Foundation who can further ensure that the public interest is represented in court. Individual defendants, by contrast, lack the resources necessary to put up this good fight, and they face enormous pressure to preserve their bank accounts by quickly and quietly settling.
Moreover, lawsuits against individuals have a disquieting randomness to them, and that should give the legal system serious pause. To hold accountable only a handful of the individuals who swapped songs without permission -- to extract steep damages from those unlucky few while leaving millions of equally culpable peers untouched -- smacks of unequal justice. Admittedly, sometimes judicial inequality is a necessary evil; where intermediaries can effectively be held accountable, it is not.
In short, let KaZaA and Grokster profit from their technology and then pay their due. And let the college student, whose offense is something between an arrogant disregard for existing law and a praiseworthy enthusiasm for the technologic future to come, walk free.
Douglas Lichtman is Professor of Law at the University of Chicago
Reprinted with permission of The Wall Street Journal © 2003 Dow Jones & Company, Inc. All rights reserved.