File sharing involves a combination of legitimate distribution and illegitimate copying, and the two cannot be separated. The prevailing argument in the Ninth Circuit's Napster opinion, that he infringement is not in the distribution or the sharing, but in the copying, ignores the merger of copying and distribution. This article analyzes the economics of intellectual property, and applies that economic analysis to Napster as an alternative mechanism for the distribution of music. This article suggests that owners of file sharing systems like Napster privatize their economic interests through intellectual property law, by obtaining business method patent protection for file sharing systems.
Turning Gray into Green: Some Comments on Napster,
23 Hastings Comm. & Ent.L.J. 563
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol23/iss3/3