Comment: Copyright\u27s Public-Private Distinction

Abstract

I would like to focus my remarks on the question of user privacy. In her fascinating paper for this Symposium, Professor Litman expresses a guarded optimism that in its forthcoming decision in MGM v. Grokster, I the Court will retain the staple article of commerce doctrine that it first articulated in Sony. She opines, however, that the user privacy strand of the Sony decision is a lost cause. I don\u27t believe that it\u27s possible to retain the staple article of commerce doctrine while abandoning user privacy. At least in the realm of networked digital technologies, the two concepts are inextricably linked. To explain why, I would like to begin by examining a concept that I\u27ll call copyright\u27s public-private distinction. This distinction does not concern the presence or absence of state action, but rather the presence or absence of conduct triggering legal accountability

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