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Abstract

This article explores the copyright principle of media neutrality in the context of three sets of cases dealing with videogame enhancements, database compilations, and peer-to-peer file sharing. In each set of cases, at least one court produces a judgment which relies heavily on technological distinctions among electronic storage and retrieval systems, in apparent contravention of the media neutrality principle. Media neutrality confers fairly broad authority on courts to extend protection to copyrighted content distributed through new technologies. However, judicial concerns about the relative institutional competencies of Congress and the courts, most clearly expressed in the Sony decision, rightly impose limitations on the courts' authority to expand copyright protection where important countervailing policies are in play. The article proposes that courts employ a balanced analysis which accords like legal treatment to functionally equivalent technologies, requires that doctrine be formulated in technology-neutral terms, and gives greater weight to overarching policies regarding fairness, incentives, and innovation than to technological specifics. In the pending Grokster case, such an approach would suggest that centralized and decentralized file sharing systems should receive like treatment under the law; that the Supreme Court should affirm the traditional, technology neutral "knowledge or reason to know" standard for contributory infringement; but that the court should also apply the limiting principles of Sony's staple article of commerce doctrine, weighing the importance of technological innovation against the need for copyright incentives.

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