Some comments on the VSDA brief.

From page 5:

Accordingly, “peer-to-peer distribution” in the present context is a misnomer under the Copyright Act, for nothing is being distributed.

This is in reference to peer to peer "distribution". I guess that section raises a good point, that this is more reproduction than it is distribution, since there is nothing tangible being distributed.

They also argue that "file-sharing" is a misnomer:

This is simply not a case in which two or more people make use of the same copy or phonorecord. Rather, each file “shared” results in an additional copy.

This I have to say is a bit problematic. Per Merriam-Webster:

Sharing: 2 a : to partake of, use, experience, occupy, or enjoy with others b : to have in common

Clearly this would qualify as sharing. I could also see a p2p system where a token is transfered with the file being shared that would indicate who has "the" copy at a specific moment, to ensure that the additional copy does not really count as one.

Later they discuss the following:

2. Remedies that preserve the noninfringing uses are permissible

It is said that for every legal right there is a legal remedy when that right is infringed, Marbury v. Madison, 5 U.S. 137 (1803). The problem in Sony was that the remedy being sought – a complete ban on sales of the Betamax machine – would itself infringe the rights of others. In such case, the remedy (and with it the liability) could be denied. In effect, the burden (B) of completely enjoining the Betamax recorder was greater than even a high probability and gravity of copyright infringement (PL). In this case, in contrast, if Respondents’ software can be modified to make infringing use less probable, it may be feasible to lessen the use of Respondents’ peer-to-peer systems for infringing reproductions without burdening lawful reproductions.

So let me get that straight, are they saying that there was no way to make the Betamax recorder less likely to be used for copyright infringement, but that it is possible to do so in peer-to-peer system? How about binding a tape with a device? That would have enabled the people using the betamax to tape shows and only be able to replay them on their own machine. As for the p2p software, what is proposed here? Most likely it has some holes as well, especially cases of "false-positives". They address this a few lines later:

In Sony, the potential remedy was limited. The plaintiffs sought a complete ban on the recording function and, in any event, a lesser remedy would have given the copyright owners power over a device beyond the congressionally established limits of the copyright.

Ah so really the issue is that any remedy would be a problem with the congressionally established limites of the copyright, no matter what they were. Of course for p2p, no such protection:

The district court should be given an opportunity to determine whether relief from the infringing uses may be attainable without over-burdening Respondents, the lawful, constitutionally protected uses to which their peerto- peer systems are placed, or the competitive benefits of Respondents’ technology.

This is essentially their conclusion:

Because the courts below failed to inquire into any available remedies, they also failed to properly balance the relevant harms, leaving no room to consider the reasonableness of imposing a duty to help prevent infringement.

So they describe a world where p2p software has "something" built in to prevent it being used to perform some illegal activity. I think I would have liked it better if, instead of just stating this view, the VSDA had actually proposed a solution. Of course their goal is to see this discussion happen, even if no solution is found it's better to have this "extra chance" since the way the ruling is at this point is quite favorable for p2p software.