In Spain, a court has decided a filesharing case in favor of the operators of a site linking to infringing content posted on other sites. The court’s focus rested on the fact that no infringement occurred on the actual site. However, as part of its reasoning, the court noted that filesharing is similar to the borrowing and lending of print materials. While it’s good to see a court sticking up for technology over traditionalism, this analogy seems wrongheaded and could make it more difficult to make sense of the interaction between the law and the digital world.

Reading the linked article, one gets the impression that such a decision is common sense. In fact, there is still an unresolved debate regarding what the proper analogy for the digital world is and, as a result, whether or not there should even be a cyberlaw. While it should be clear to any observer that traditional laws do not fit the Internet well, it is not immediately clear how they can be made to fit, or if new laws should be built from scratch.

Although the typical intent of filesharing is a sharing of information similar to borrowing and lending, the actual effect is quite different. With physical items, there is always one item. When it is lent out, only the borrower can make use of it, and only until it is returned to the lender. With digital items, sharing creates multiple copies, and anybody who has possessed the item at any time can use it at any time. Thus, digital sharing has a substantially higher possibility of harm to the seller of the item.

This is not to say that filesharing should be automatically illegal. That would be too simplistic of a solution. Filesharing is a reality of the world that we live in, and the law, as well as associated business practices, should be geared towards steering innovation in the right direction rather than thwarting it. What it does say is that, just as an email cannot be treated like a letter, BitTorrent cannot be treated like a library.

- Steven Reilly

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One Response to The Law of the Horse 2: The Legend Continues

  1. Miquel Peguera says:

    Nice post!
    I’ve just posted an analysis of the ruling on my blog:
    http://ispliability.wordpress.com/2010/06/16/p2p-lending-books/

    Best,
    Miquel