WASHINGTON, D.C. - Going to the heart of the online digital piracy controversy, a new study by Progress & Freedom Foundation Senior Policy Counsel William F. Adkinson, Jr. underscores the need for effective digital copyright protection that does not harm innovation. His suggestion: “a pragmatic approach that shows proper deference to technological innovation while recognizing the need to thwart efforts to promote piracy.”

One of the most practical tools of digital copyright enforcement is secondary liability, according to Adkinson, because “alleged contributory infringers may be in the best position to prevent or police violations.” But he adds that “secondary liability can create disincentives to innovation and entrepreneurship” and that “products have legitimate uses as well as infringing ones.”

Acknowledging that past “dire predictions” about the impact of analog copying technologies cause certain content industry claims to “be viewed with some skepticism,” Adkinson says the digital environment is different. He maintains that the rise of music file-sharing over P2P networks has led to “a dramatic impact on illegal copying.” Thus, “holding P2P systems liable as contributory infringers is appropriate, even essential, to making copyright protection a reality on the Internet. Otherwise the scale of piracy over P2P networks could render protection illusory.”

“Based on the current uses of P2P file-sharing systems, the policy arguments for holding them secondarily liable for the infringements of their users are very strong,” he writes. “These systems are used for legitimate purposes…[but] at present, those non-infringing uses are quite small relative to the use of these systems for widespread Internet piracy.” But “noninfringing uses…are likely to be developed over time.” This means “liability and especially remedies should be carefully tailored to limit interference with the development of noninfringing uses.”

Adkinson hopes legal incentives will create and improve protection and expand remedial options: “If it is possible for P2P file-sharing systems to modify software and systems, or to monitor and police infringements on their systems, imposing such obligations through secondary liability is a potentially attractive option,” he writes. “It can provide protection for content while still permitting noninfringing uses.”

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.