Toward a Regulatory Model of Internet Intermediary Liability: File-Sharing and Copyright Enforcement

Swartout, Christopher M. | January 1, 2011

One of the major problems presented by digital content and the internet has been the failure of traditional copyright enforcement mechanisms to adequately address infringement that takes place via online file-sharing. Recently, laws that would introduce a new copyright enforcement paradigm have been proposed in numerous countries and have received strong support from content industries seeking a more effective enforcement regime. These laws are often referred to as “graduated response” policies. Although there is some variation, graduated response laws typically impose requirements on Internet Service Providers (ISPs) to cooperate with rightsholders and government in policing illegal file-sharing. ISPs are required to forward warnings to users identified by rightsholders as engaging in illegal file-sharing activity and to suspend or terminate internet service for users who do not cease the infringing activity. In a few countries, notably the United States and Ireland, rightsholders have also sought to make private agreements with ISPs to implement graduated response programs without legislation or regulatory action. This article will offer both an explanation and an appraisal of graduated response polices as an alternative to traditional copyright enforcement mechanisms.