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Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement

Annemarie Bridy

University of Idaho College of Law

April 16, 2010

Oregon Law Review, Vol. 89, p. 81, 2010

At the end of 2008, the music industry ended its five-year campaign of litigation against individual peer-to-peer file sharers and announced that it would be shifting its online copyright enforcement efforts to a model known as graduated response. The most widely publicized form of graduated response is a “three strikes and you’re out” model, in which a user’s Internet access is suspended or terminated by his or her ISP following that user’s receipt of three successive notices of copyright infringement. As it has been presented by entertainment industry trade groups, the enforcement paradigm embodied in graduated response forgoes litigation and statutory mandates in favor of voluntary cooperation between rights owners and Internet access providers - parties that have long been at loggerheads with each other in the war on piracy.

This article seeks to explain, in the context of evolving network management technology and its impact on intermediary liability rules, why the time may be ripe for broadband providers and corporate rights owners to renegotiate their respective roles in the project of online copyright enforcement. Following an analysis of the turn to private ordering and technology-based mechanisms for policing copyrights online, this article proposes a set of principles to guide the implementation of graduated response regimes so that consumers, who have come to rely on uninterrupted Internet access for everything from banking to blogging, do not fall victim to immature filtering technologies and overzealous enforcement.

Number of Pages in PDF File: 52

Keywords: copyrights, piracy, graduated response, ISP, broadband, DPI

JEL Classification: K12, K39, L96

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Date posted: March 5, 2010 ; Last revised: October 28, 2010

Suggested Citation

Bridy, Annemarie, Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement (April 16, 2010). Oregon Law Review, Vol. 89, p. 81, 2010. Available at SSRN: http://ssrn.com/abstract=1565038

Contact Information

Annemarie Bridy (Contact Author)
University of Idaho College of Law ( email )
875 Perimeter Dr.
MS 2321
Moscow, ID 83844-2321
United States
(208) 885-7056 (Phone)
HOME PAGE: http://www.uidaho.edu/law/faculty/annemariebridy
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