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Copyright (c) 2011 Northwestern University School of Law
Northwestern Journal of International Law & Business

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

Spring, 2011

Northwestern Journal of International Law & Business

31 NW. J. INT'L L. & BUS. 499


Christopher M. Swartout*


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. 1 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

Conventional copyright enforcement relies on private litigation and places the burden of enforcement on rightsholders. Graduated response laws shift some of the costs of enforcement away from copyright holders and impose them on internet service providers and government regulators. 5 The emergence of graduated response as a popular model for enforcing copyrights against online file-sharing is best understood as a new type of internet intermediary liability regime. Graduated response laws seek to solve problems of anonymity and geographical and jurisdictional ...
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