Yesterday, I gave a talk in Canberra for the ACT Society for Technology and the Law (thanks for the invite, guys) about P2P file-sharing and liability for copyright infringement. One of the things I mentioned in that talk was the LimeWire suit, and one of the questions I got was about how our law of authorisation of copyright infringement mapped against US law. For people wondering about that question, one very good source is the paper by Jane Ginsburg and Sam Ricketson, Inducers and Authorisers: A Comparison of the US Supreme Court’s Grokster Decision and the Australian Federal Court’s KaZaa Ruling.

But it’s also worth looking at this post by William Patry, and the associated papers: the filing in the RIAA v LimeWire case, in which the RIAA are pleading each different form of liability that arises under the US law. One point that Patry makes is that:

‘my objection to the Grokster opinion (which is not a defense of Grokster the company), is that it only added to the conceptual morass begun with Sony by creating a new, third category of third-party liability, and without any perceived need for it by the parties, Congress, or anyone else. It was, I believe, merely a way to paper over the court’s inability to do the job it took upon itself: determine how to apply Sony to the Internet. When the Court shirked that responsbility, it apparently felt it too had to something to show it was tough on pirates (you’re not alone Mr. Attorney General!), hence the inducement theory.’

I wonder whether this ‘conceptual morass’, however, is any worse or better than the Australian law, in which we have one, umbrella form of ‘authorisation liability’ in which courts throw a series of factors in the mix (s36(1A)), and come out with a conclusion? Is it better to have different, distinct forms of secondary liability – or a general action where courts have to make a judgment call?

update: Rothnie comments on Patry’s post here.