May 2008

By Robert W. Clarida and Robert Jay Bernstein

In the entertainment industry’s efforts to stem the infringement of sound recordings and motion pictures on the Internet, more than 20,000 infringement actions have been commenced against individuals, mostly in connection with their use of peer-to-peer (P2P) services to share recordings with other P2P users. The legal basis for these actions is often misunderstood, however, by commentators — and sometimes even by the courts. This article discusses several recent P2P cases that deal directly with a central element of most P2P cases, namely the allegation that users violate the plaintiffs’ distribution rights under 17 U.S.C. Sec. 106 whenever they place a digital recording or video in a “share” folder that other P2P users can access.

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