P2Pの憲法学的考察 : グロックスター連邦最高裁判決を受けて
2005 年 42 巻 1 号 p. 52-71
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2005 年 42 巻 1 号 p. 52-71
Grokster case was decided in June, 2005. Before this case, at Boalt Hall, Berkeley, School of Law, there were two arguments over the prevention of the direct and indirect infringement of copyright. One is argued by Professor Pamela Samuelson who proposes the solution by Congress. The other is Professor Peter Menell who proposes the solution by Judiciary. They think Sony Beta case differently, which was decided in 1985. In face of this battle, the Supreme Court took the middle approach and clarified what indirect infringement is. Although this case is going to be analyzed by other distinguished scholars, it is important to say that the American scholars recognize that this P2P issue includes interpretation issue of Constitutional law. However, unlike the U.S., there are not so many arguments in Japan that discuss Constitutional law issue about P2P. In this article, I like to discuss this issue focusing on the interpretation and the battle between Congress and Judicial approach. The main point is that P2P issue includes the First Amendment rights of the technology inventor, the sender of the information and the copyright holder. Unless the explanation how to solve the P2P by the government, the balance of these three shall not be kept.
