Abstract

The heated rhetoric surroundingdigital copyright in general, and peer-to-peerfile sharing in particular, has inspired greatconfusion about what the copyright law does anddoes not prohibit. Most of the key legalquestions are still unsettled, in part becausecopyright defendants have run out of money andgone out of business before their cases couldgo to trial. In that vacuum, some copyrightowners are claiming that their preferred rulesof conduct are well-established legalrequirements. But those claims are strategic;those rules have never been endorsed by thecourts. They are made-up rules. There's adifference between our obligation to followreal rules, and our obligation to followmade-up ones. There may be an ethicalobligation to follow real rules, even when theyseem unreasonable. But we don't have anyethical obligation to follow made-up ones. Indeed, in this context, we may have an ethicalobligation to resist them. Some copyrightowners believe the law ought to enable them tocontrol essentially all significant uses oftheir works. The law has never said that, butit gets closer and closer every day. If webehave as though the made-up rules wereactually the law, we will make that day comemuch sooner.