Peer-to-Peer Technology: Analysis of Contributory Infringement and Fair Use

By: Giovanna H. Fessenden


The following is an excerpt of this article, which first appeared in IDEA - The Journal of Law and Technology, Vol. 42, 3 (2002).

The film and music industries (“the Industries”) have a history of prematurely trying to circumscribe new technologies, even though history
shows that new technologies help expand their markets.  For example, in the early twentieth century, music publishers sought to prevent the distribution of a new sheet music format, the piano roll.  Additionally, they attempted to control the market for phonogram recording equipment and phonograph players.

Similarly in the early 1980s the music industry lobbied to require manufactures of analog tape recorders and blank audio tapes to pay a royalty fee on each machine and blank tape, and the royalty fee would be added to the price consumers would pay for the product.  The music industry argued that these devices were only useful to create illegal copies of copyrighted material, and that people would stop buying music because they would have the technology to make their own copies.  However, home taping increased the Industries’ market share because it promoted and helped to distribute music to a wider audience.  As a result, the number of fans increased and more customers purchased tapes.

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