Criminal Copyright Enforcement Against Filesharing Services

52 Pages Posted: 7 Mar 2013 Last revised: 11 Feb 2014

Date Written: October 2013


The high-profile prosecution of the popular online storage website Megaupload for criminal copyright infringement is the latest in a series of recent criminal prosecutions of online filesharing services. This Article addresses what pushes a legitimate online file-storing business over the edge to criminal enterprise, and how criminal copyright enforcement differs from civil enforcement. The Article first explains the history of criminal copyright enforcement in the United States. It then addresses why “secondary” theories of infringement apply in the criminal, as well as civil, context and why the DMCA “safe harbor” defense is a red herring in criminal copyright actions. It concludes by suggesting guidelines for prosecutorial discretion in enforcing criminal copyright law against filesharing services, proposing that prosecutions be limited to theories of liability already established in civil case law, and that prosecutors target only prominent filesharing-service operators that openly defy civil enforcement actions.

Keywords: copyright law, copyright, criminal copyright, criminal law, filesharing services

JEL Classification: K14, O34, O31, K10, K19, K41, K40, K49, K30, K39

Suggested Citation

Martin, Benton C. and Newhall, Jeremiah Robert, Criminal Copyright Enforcement Against Filesharing Services (October 2013). 15 North Carolina Journal of Law and Technology 101 (2013), Available at SSRN: or

Benton C. Martin (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Jeremiah Robert Newhall

Independent ( email )

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