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Is Online Copyright Enforcement Scalable?

Annemarie Bridy

Affiliate Scholar, Stanford Law School CIS

June 8, 2011

Vanderbilt Journal of Entertainment & Technology Law, Vol. 13, No. 4, pp. 695-737, Summer 2011

This article examines P2P file sharing and the copyright enforcement problem it has created through the lens of scalability. Writing about the growth and governance of the Internet, David Post observed that "scaling problems - the problems that arise solely as a consequence of increasing size or increasing numbers - can be profound, and profoundly difficult to solve." Both the Internet’s designers and the designers of P2P networks solved difficult problems of scale in their effort to revolutionize the distribution of information goods. In doing so, however, they created a problem of scale in the form of "massive infringement." How to approach solving that problem of scale is the subject of this article.

Part I traces the evolution of peer-to-peer (P2P) networks from Napster to BitTorrent, with a focus on the relative scalability of successive architectures. Part II takes up the difficult question of the scale of P2P infringement and its harms, examining the strategic number-crunching that underlies industry data on piracy, the government’s credulous acceptance of that data, and the risk of letting industry hyperbole drive copyright policy and law enforcement priorities. Part III evaluates the efficacy of the Digital Millennium Copyright Act (DMCA) as a policy mechanism for scaling up online copyright enforcement. I argue in Part III that the DMCA has proven to be remarkably scalable for enforcing copyrights in hosted content but has altogether failed to scale in the context of P2P file sharing, leading to the dysfunctional workaround of mass John Doe litigation. Part IV weighs the costs and benefits of more scalable alternatives to mass litigation, including a potential amendment of the DMCA’s pre-litigation subpoena provision and a pair of administrative dispute resolution systems - one hypothetical, the other real - for streamlining adjudication of P2P infringement claims.

Number of Pages in PDF File: 43

Keywords: copyright, infringement, P2P, peer to peer, file sharing, DMCA, HADOPI, graduated response, piracy

JEL Classification: K00, K19, K39, K42, L82

Accepted Paper Series

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Date posted: January 16, 2011 ; Last revised: April 12, 2014

Suggested Citation

Bridy, Annemarie, Is Online Copyright Enforcement Scalable? (June 8, 2011). Vanderbilt Journal of Entertainment & Technology Law, Vol. 13, No. 4, pp. 695-737, Summer 2011. Available at SSRN: http://ssrn.com/abstract=1739970

Contact Information

Annemarie Bridy (Contact Author)
Affiliate Scholar, Stanford Law School CIS ( 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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