Toward a Regulatory Model of Internet Intermediary Liability: File-Sharing and Copyright Enforcement
![handle is hein.journals/nwjilb31 and id is 503 raw text is: Toward a Regulatory Model of Internet
Intermediary Liability: File-Sharing and
Copyright Enforcement
Christopher M. Swartout*
I. INTRODUCTION
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.2 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.3 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.4
* J.D. Candidate, 2011, Northwestern University School of Law. I am indebted to the
numerous faculty members and classmates who have offered their guidance and advice,
especially Professor Peter DiCola for his valuable insight and comments, and to the JILB
Editors for all of their hard work. I would also like to thank my fiancde Joanna for her love
and support and for always offering a thoughtful second opinion.
1 INTERNATIONAL FEDERATION OF THE PHONOGRAPHIC INDUSTRY, IFPI DIGITAL MUSIC
REPORT 24-27 (2010) [hereinafter IFPI REPORT], available at http://www.ifpi.org/content/
library/DMR2009.pdf
2 I will refer to this enforcement strategy primarily as graduated response, although
similar strategies have also been referred to as three-strikes policies for file-sharers,
reflecting the most common incarnation which begins with two warnings delivered to those
illegally sharing copyrighted works and results in suspension or termination of internet
access on the third instance of illegal file sharing.
3 IFPI REPORT, supra note 1, at 24.
4 Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits, WALL ST. J.,
Dec. 19, 2008, at Bl, available at http://online.wsj.com/article/SBl22966038836021137.
html.
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Toward a Regulatory Model of Internet Intermediary Liability: File-Sharing and Copyright Enforcement
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