Pioneering Peer-to-Peer and Other Disruptive Dual-Use Technologies
Prof. Michael Carrier, Rutgers University School of Law
Question: What do the VCR, computer, CD burner, iPod, TiVo, and peer-to-peer (P2P) file-sharing software have in common?
Answer: They can be utilized (1) to create revolutionary new forms of interaction and entertainment or (2) to facilitate widespread copyright infringement. While these dual-use technologies offer pathbreaking innovations, they have been continually under assault in U.S. courts’ analyses. They are evaluated in their infancy when their capabilities can barely be discerned. And they do not stand a chance against the widespread, concrete instances of infringement offered by copyright holders. This presentation will discuss these issues. And it will explain why the tradeoff between innovation and creativity is not as intractable as most courts and scholars have thought.
The presentation concludes by recommending a return to the test the U.S. Supreme Court offered in Sony v. Universal, which required that a technology need only be capable of a substantial noninfringing use to avoid copyright liability. Such a test would benefit P2P technology, offering benefits for distribution, the “long tail,” and promotion. More generally, it would promote the radical, disruptive innovation that consumers relish, that challenges the entrenched copyright industries, and that is barely visible in the tip of the innovation iceberg.