"Leave Them Kids Alone" A Proposed Fair Use Defense for Noncommercial P2P Sharing of Copyrighted Music Files
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A Proposed Fair Use Defense For Noncommercial
P2P Sharing of Copyrighted Music Files
Jeremy Scott*
I. INTRODUCTION
Technology is, at once, the alpha and omega of copyright law.
The alpha of copyright law was a single invention,2 the printing
press, which spawned a publishing industry that required government
protection from acts of commercial piracy.3 The omega has come, at
various times, in a series of paradigm shifts brought about by new
technologies. These breakthroughs have often forced our legal sys-
tem to revisit outdated rules that were unable to embrace the benefits
of these new technologies in the marketplace.! In fact, we are current-
ly in the midst of such a paradigm shift, and online file sharing is set to
become the omega of a copyright holder's control over noncom-
mercial sharing of his expressive works.
* J.D., 2007, Florida International University College of Law. I would like to thank Pro-
fessor Hannibal Travis for guiding me, ever so patiently, through the ins and outs of copyright
law and the fair use doctrine, and Eddie Rodriguez, for his helpful, knowledgeable and practical
suggestions regarding the best way to go about doing this project. I would also like to extend my
thanks to all of the other members of the FIU Law Review for their patience, support and en-
couragement.
1 Roger Waters, Another Brick in the Wall, Pt. 2, on THE WALL (Sony 1987).
2 There are historical precursors to what we now know as copyright law, but the time
required to hand-copy books before the invention of the printing press served as a substantial
barrier to commercial piracy. See Craig W. Dallon, The Problem With Congress and Copyright
Law: Forgetting the Past and Ignoring the Public Interest, 44 SANTA CLARA L. REV. 365,377-78
(2004). See also discussion infra Part III(a)(i).
3 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417,429-31 (1984).
4 See id. at 430 n.l (noting Congressional responses in copyright law to new technolo-
gies).
5 See, e.g., White-Smith Music v. Apollo, 209 U.S. 1, 18 (1908) (noting that the use of [pi-
ano] rolls, in the absence of statutory protection, enables the manufacturers thereof to enjoy the
use of musical compositions for which they pay no value[,] but holding that such considera-
tions properly address themselves to the legislative, and not to the judicial, branch of the gov-
ernment.); Williams & Wilkins Co. v. U.S., 487 F2d 1345, 1359 (Ct. CI. 1973) (noting that the
advent of the photocopying machine brought grave uncertainty of the coverage of 'copy' in
Section 1 of the 1909 [Copyright Act] and [expressing] doubt [as to] whether it relates at all to
periodicals.).](ViewImageLocal?handle=hein.journals/fiulawr3&div=11&collection=journals&method=preview&ext=.png&size=3)
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"Leave Them Kids Alone" A Proposed Fair Use Defense for Noncommercial P2P Sharing of Copyrighted Music Files
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