Chasing Echoes of Obscenity Exceptionalism in Copyright: Recent Swarm Cases

24 Pages Posted: 27 Jul 2017 Last revised: 5 Feb 2018

See all articles by James R. Alexander

James R. Alexander

University of Pittsburgh at Johnstown

Date Written: October 28, 2017


Recent district court rulings regarding copyright violations using BitTorrent file-sharing protocols to illegally download pornographic films have been numerous and largely procedural. But some have casually included language challenging the established doctrine of content neutrality in copyright, noting that obscenity exceptionalism might still be within the court’s policy discretion. This article traces these recent rulings and finds little substantive argument on behalf of exceptionalism other than its long-time understanding under common law, now abandoned. It also examines the critical early nineteenth century common law rulings considered seminal in establishing content exceptionalism in copyright and finds that current court references to them in swarm cases appear willing to accept what was believed to be their governing principles without consideration of the cautions expressed by earlier courts.

Keywords: copyright, obscenity, swarm, bittorrent, film, political satire, libel, content exceptionalism

Suggested Citation

Alexander, James R., Chasing Echoes of Obscenity Exceptionalism in Copyright: Recent Swarm Cases (October 28, 2017). Chicago-Kent Journal of Intellectual Property, Vol. 17, No. 1, 2018. Available at SSRN: or

James R. Alexander (Contact Author)

University of Pittsburgh at Johnstown ( email )

Johnstown, PA 15904
United States

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