Acupressure: The Emerging Role of Market Ordering in Global Copyright Enforcement

Abstract

Copyright owners facing ineffective legal enforcement for widespread infringements in emerging markets are turning to strategies frequently used to curb environmental, human rights, and labor abuses: compel influential third parties to pressure wrongdoers into legal compliance. Enforcement by market pressuring occurs against the backdrop of copyright law, but does not rely on enforcement through courts or government agencies. Rather, the approach enlists key intermediaries to police their supply chains for infringement or to compel infringers, by manipulating vital economic pressure points, to cease infringement. Under this approach, the infringers’ cessation is not precipitated by fear of legal liability and the potential damages, fines, or injunctions that might result from judicial or administrative copyright enforcement. Instead, infringers fear losing access to key markets and contracts.

Such alternative global enforcement strategies are widely discussed and analyzed in other legal fields but have received less attention from IP scholars. This Article aims to fill that gap by analyzing two in-depth case studies of actual market-pressure enforcement strategies. The first describes Chinese video streaming websites’ recent remarkable and abrupt transition from notorious pirate sites to copyright licensees after copyright owners pressured the sites’ major advertisers. The second canvasses U.S. software producers’ novel strategy of combining U.S. unfair competition law and market pressures to curb overseas manufacturers’ widespread use of pirated enterprise software. Building on these case studies, this Article proposes a framework for evaluating and improving market-pressure strategies aimed at redressing copyright infringement in markets where enforcement is lacking. The Article draws from scholarship on private ordering, secondary liability, and social norms to argue that market-based pressuring can be normatively desirable and an effective copyright enforcement strategy, but success largely depends on whether the strategy effectuates meaningful changes in the infringer group’s copyright compliance norms.

Keywords: copyright law, IP, intellectual property, Chinese copyright law, China, piracy, copyright enforcement, international copyright, international law, private ordering, supply chain