scholarly journals ACTA and the Specter of Graduated Response

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
Service Providers ◽  
The United States ◽  
Public Law ◽  
Digital Environment ◽  
Internet Users ◽  
Law Faculty ◽  
College Of Law ◽  
Copyright Enforcement ◽  
University Of Idaho ◽  
Final Round

This article considers the evolution of ACTA's "digital environment" provisions in the context of concerns raised early in the negotiations that the agreement would require signatories to mandate graduated response regimes for online copyright enforcement (à la France's controversial HADOPI system). The Consolidated Text of ACTA released in October 2010, following the final round of negotiations in Japan, contains no provision mandating the adoption of graduated response. Such regimes are tacitly endorsed in the agreement, however, through language in the preamble and the digital environment provisions concerning the promotion of greater cooperation between rights owners and service providers. Moreover, opponents of graduated response should be wary of the fact that public law mechanisms - be they domestic or international - are not the only means by which graduated response can effectively become the law for Internet users. The United States and Ireland provide examples of the trend toward private ordering in the project of online copyright enforcement.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
Internet Access ◽  
Private Ordering ◽  
Corporate Rights ◽  
Law Faculty ◽  
Management Technology ◽  
College Of Law ◽  
Three Strikes ◽  
Intermediary Liability ◽  
Copyright Enforcement ◽  
University Of Idaho

At the end of 2008, the music industry ended its five-year campaign of litigation against individual peer-to-peer file sharers and announced that it would be shifting its online copyright enforcement efforts to a model known as graduated response. The most widely publicized form of graduated response is a "three strikes and you're out" model, in which a user's Internet access is suspended or terminated by his or her ISP following that user's receipt of three successive notices of copyright infringement. As it has been presented by entertainment industry trade groups, the enforcement paradigm embodied in graduated response forgoes litigation and statutory mandates in favor of voluntary cooperation between rights owners and Internet access providers - parties that have long been at loggerheads with each other in the war on piracy.This article seeks to explain, in the context of evolving network management technology and its impact on intermediary liability rules, why the time may be ripe for broadband providers and corporate rights owners to renegotiate their respective roles in the project of online copyright enforcement. Following an analysis of the turn to private ordering and technology-based mechanisms for policing copyrights online, this article proposes a set of principles to guide the implementation of graduated response regimes so that consumers, who have come to rely on uninterrupted Internet access for everything from banking to blogging, do not fall victim to immature filtering technologies and overzealous enforcement.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Is Online Copyright Enforcement Scalable?

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
Law Enforcement ◽  
File Sharing ◽  
Information Goods ◽  
P2p Networks ◽  
P2p File Sharing ◽  
Law Faculty ◽  
College Of Law ◽  
The Subject ◽  
Copyright Enforcement ◽  
University Of Idaho

This article examines P2P file sharing and the copyright enforcement problem it has created through the lens of scalability. Writing about the growth and governance of the Internet, David Post observed that "scaling problems - the problems that arise solely as a consequence of increasing size or increasing numbers - can be profound, and profoundly difficult to solve." Both the Internet's designers and the designers of P2P networks solved difficult problems of scale in their effort to revolutionize the distribution of information goods. In doing so, however, they created a problem of scale in the form of "massive infringement." How to approach solving that problem of scale is the subject of this article.Part I traces the evolution of peer-to-peer (P2P) networks from Napster to BitTorrent, with a focus on the relative scalability of successive architectures. Part II takes up the difficult question of the scale of P2P infringement and its harms, examining the strategic number-crunching that underlies industry data on piracy, the government's credulous acceptance of that data, and the risk of letting industry hyperbole drive copyright policy and law enforcement priorities. Part III evaluates the efficacy of the Digital Millennium Copyright Act (DMCA) as a policy mechanism for scaling up online copyright enforcement. I argue in Part III that the DMCA has proven to be remarkably scalable for enforcing copyrights in hosted content but has altogether failed to scale in the context of P2P file sharing, leading to the dysfunctional workaround of mass John Doe litigation. Part IV weighs the costs and benefits of more scalable alternatives to mass litigation, including a potential amendment of the DMCA's pre-litigation subpoena provision and a pair of administrative dispute resolution systems - one hypothetical, the other real - for streamlining adjudication of P2P infringement claims.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Copyright's Digital Deputies: DMCA-Plus Enforcement by Internet Intermediaries

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
Due Process ◽  
Law Faculty ◽  
College Of Law ◽  
The Law ◽  
Secondary Liability ◽  
University Of Idaho ◽  
Due Process Rights ◽  
Voluntary Basis

In the years since passage of the Digital Millennium Copyright Act ("DMCA"), the copyright industries have demanded that online intermediaries - both those covered by the DMCA and those falling outside the statute's ambit - do more than the law requires to protect their intellectual property rights. In particular, they have sought new ways to reach and shutter "pirate sites" beyond the reach of United States law. Their demands have been answered through an expanding regime of nominally voluntary "DMCA-plus" enforcement.This chapter surveys the current landscape of DMCA-plus enforcement by dividing such enforcement into two categories: Type 1 and Type 2. Type 1 DMCA-plus enforcement is cooperation by DMCA-covered intermediaries over and above what is required for safe harbor. Type 2 DMCA-plus enforcement is cooperation by intermediaries whose activities fall outside the scope of the DMCA's safe harbors and who are not liable for their customers' copyright infringements under secondary liability rules.As the gap widens between what the law requires and what intermediaries are agreeing to do on a voluntary basis, there is reason to be concerned about the expressive and due process rights of users and website operators, who have no seat at the table when intermediaries and copyright owners negotiate "best practices" for mitigating online infringement, including which sanctions to impose, which content to remove, and which websites to block without judicial intervention.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Copyright Policymaking as Procedural Democratic Process: A Discourse Theoretic Perspective on ACTA, SOPA, and PIPA

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
National Security ◽  
Foreign Relations ◽  
Trade Agreement ◽  
Freedom Of Information ◽  
Freedom Of Information Act ◽  
The Public ◽  
Law Faculty ◽  
College Of Law ◽  
Security Information ◽  
University Of Idaho

In Bring in the Nerds: Secrecy, National Security, and the Creation of Intellectual Property Law, David Levine juxtaposes two starkly different copyright policymaking processes: the closed international process that produced the Anti-Counterfeiting Trade Agreement (ACTA) and the relatively open domestic process that led quite dramatically to the scuttling of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). He reads the two processes against each other as a prelude to recommending Freedom of Information Act (FOIA) reform. The amendment to FOIA that Professor Levine proposes would open the international IP policymaking process to greater public scrutiny by creating a qualified public right to "foreign relations" national security information, which was systematically withheld from the public during the ACTA negotiations. This article, prepared for the Cardozo Arts and Entertainment Law Journal's 2012 Symposium, "Piracy and the Politics of Policing: Legislating and Enforcing Copyright Law," is a response to Professor Levine that draws on Jürgen Habermas' discourse theory of procedural democracy to examine the policymaking dynamics of ACTA and SOPA/PIPA and to assess the democracy-enhancing potential of the FOIA reform Professor Levine proposes.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Coding Creativity: Copyright and the Artificially Intelligent Author

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
Information Society ◽  
Copyright Law ◽  
Quarter Century ◽  
Current Structure ◽  
Slow Development ◽  
Law Faculty ◽  
College Of Law ◽  
University Of Idaho

For more than a quarter century, interest among copyright scholars in the question of AI authorship has waxed and waned as the popular conversation about AI has oscillated between exaggerated predictions for its future and premature pronouncements of its death. For policymakers, the issue has sat on the horizon, always within view but never actually pressing. To recognize this fact, however, is not to say that we can or should ignore the challenge that AI authorship presents to copyright law's underlying assumptions about creativity. On the contrary, the relatively slow development of AI offers a reprieve from the reactive, crisis-driven model of policymaking that has dominated copyright law in the digital era.By engaging and extending insights from two relatively discrete lines of existing scholarship - the postmodern critique of romantic authorship and the more pragmatic literature on copyright in works produced with the aid of computers - this Article seeks to answer the vexing copyright questions that arise from the artificially intelligent production of cultural works. It does so by developing the argument that all creativity is inherently algorithmic and that works produced autonomously by computers are therefore less heterogeneous to both their human counterparts and the current structure of copyright law than appearances may at first suggest.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Sheep in Goats' Clothing: Satire and Fair Use After Campbell v. Acuff Rose Music, Inc.

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
Literary Theory ◽  
Information Society ◽  
Fair Use ◽  
Law Faculty ◽  
College Of Law ◽  
Critical Boundary ◽  
The Law ◽  
University Of Idaho

A tricky question emerges from the Supreme Court's decision in Campbell: If a parodic work, to use Justice Souter's words, shades into satire, is it no longer classifiable (and therefore no longer defensible) as a parody? Should it be regarded as having crossed a critical boundary for fair use purposes? Campbell suggests that it should, but there are actually compelling reasons, rooted in principles underlying the doctrine of fair use, why some types of parodic works that shade into satire should not be regarded as infringing. After examining the curious development of the parody/satire distinction within the law of fair use, this article draws on literary theory to propose a workable and more accurate taxonomy than that provided in Campbell, by means of which courts engaging in a fair use analysis can evaluate works that are hybrids of parody and satire.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Nice Questions Unanswered: Grokster, Sony's Staple Article of Commerce Doctrine, and the Deferred Verdict on Internet File Sharing

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
File Sharing ◽  
Specific Knowledge ◽  
Circuit Court ◽  
Court Of Appeals ◽  
High Profile ◽  
The Past ◽  
Law Faculty ◽  
The Supreme Court ◽  
College Of Law ◽  
University Of Idaho

When is the developer or distributor of a copying technology legally responsible for the copyright infringements committed by users of that technology? Over the past twenty years or so, development and deployment of digital copying technologies (personal computers, CD and DVD burners, iPods and other portable music devices, the Internet itself, etc.), and tools for Internet file sharing and file distribution, have thrust that question into the center of a high-profile public debate. That debate gave rise to the most closely watched copyright case of recent years, MGMStudios Inc. v. Grokster, Ltd. The Ninth Circuit Court of Appeals had held that defendants Grokster and StreamCast, the developers and distributors of peer-to-peer file-sharing software, were shielded from copyright liability by the so-called Sony doctrine (also called the Betamax case), interpreting that doctrine to mean that distributors of copying technology that is capable of commercially significant noninfringing use are shielded from liability for the infringement committed by users of the technology, unless the distributors had specific knowledge of infringement obtained at a time at which they contributed to the infringement and had failed to act upon that information. The Supreme Court unanimously reversed, holding that because Grokster and StreamCast had distributed their software with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, Sony did not protect them from liability, whether or not their software was capable of commercially significant noninfringing use. The unanimous decision in the copyright holders' favor is, obviously, a big loss for Grokster Inc. and StreamCast, Ltd.; its broader implications for Internet file-sharing practices and file-sharing technology, however, are much less clear; to try to understand what they might be, we rewind the tape, back to Sony in 1984.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Why Pirates (Still) Won't Behave: Regulating P2P in the Decade after Napster

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
Michel Foucault ◽  
Information Society ◽  
File Sharing ◽  
Broad Sense ◽  
Law Faculty ◽  
College Of Law ◽  
University Of Idaho

Since the birth of Napster in 1999, corporate copyright owners have attempted to "govern" file sharing aggressively at three discrete points of intervention: the content level, the network level, and the user level. Their efforts have met with resistance at each of these points, however, because they have failed to appreciate the insight articulated by Michel Foucault that governing people, in the broad sense, is not only a matter of making them behave; it's also a matter of making them want to behave. This article surveys a decade's worth of anti-piracy regulation and examines the ways in which the entertainment industry's recourse to coercion at every point of intervention has functioned to undermine rather than advance the anti-piracy cause.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Internet Payment Blockades

2016 ◽  
Author(s):  
Annemarie Bridy
Keyword(s):  
Intellectual Property ◽  
Best Practices ◽  
Executive Branch ◽  
Alternative Methods ◽  
American Express ◽  
Law Faculty ◽  
Data Flows ◽  
College Of Law ◽  
University Of Idaho

Internet payment blockades are the fruits of a long-term, evolving strategy on the part of corporate copyright and trademark owners to leave no intermediary behind when it comes to online intellectual property enforcement. Where judicial and legislative efforts failed to yield any binding public law requiring payment processors like MasterCard and Visa to act as intellectual property enforcers, "non-regulatory" intervention from the executive branch secured their cooperation as a matter of private ordering. The resulting voluntary best practices agreement prescribes a notice-and-termination protocol that extends the reach of U.S. intellectual property law into cyberspace, to merchants operating websites from servers and physical facilities located abroad. It also removes adjudications of infringement claims from the courts to the private sector, which raises issues of fairness and institutional competence. Like other forms of regulation by online intermediaries, payment blockades can be circumvented with the aid of disintermediating technologies. True to the Internet's founding purpose of redirecting data flows around blocked or damaged channels, P2P virtual currencies like Bitcoin are empowering online merchants and their customers, at least for the time being, to run payment blockades.This article addresses the use and efficacy of Internet payment blockades, or "follow the money" enforcement, for anti-counterfeiting and anti-piracy purposes. It focuses on the voluntary best practices agreement adopted in 2011 by payment processors, including American Express, Discover, MasterCard, PayPal, and Visa. Part I discusses the regulatory environment that gave rise to the agreement. Part II describes the agreement itself, including the merchant termination protocol it specifies and the implementation of that protocol. Part III explores some normative concerns associated with the use of payment blockades as an anti-piracy and anti-counterfeiting strategy. Part IV considers the efficacy of payment blockades, taking into account the ease with which they can be circumvented using alternative methods of payment.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

scholarly journals Liability of Internet Service Providers for Online Copyright Infringement: International Experience and Recommendations for Vietnam

2021 ◽  
Vol 37 (2) ◽  
Author(s):  
Nguyen Bich Thao ◽  
Le Hong Linh ◽  
Khuc Thi Phuong Anh ◽  
Nguyen Hoang Quynh
Keyword(s):  
Intellectual Property ◽  
Industrial Revolution ◽  
Service Providers ◽  
The United States ◽  
Property Law ◽  
Internet Service Providers ◽  
The European Union ◽  
Internet Service ◽  
Intellectual Property Law ◽  
Internet Users

The advent of the Internet has posed unprecedented challenges on enforcing copyright. Online copyright infringements are pervasive, while it is not easy to impose liability on direct infringers, i.e., Internet users. This leads to a debate over whether online platforms or online intermediaries, which are often named “Internet Service Providers” (ISPs), should be held liable for these infringing activities or not, and if so, how to balance between Internet freedom, technological innovation and the need for effective copyright enforcement in the digital era. The aim of this paper is to provide answers to these questions by analyzing ISP’s liability from different international approaches such as the United States, the European Union, and China; hence, some experience for Vietnam could be drawn. Finally, the authors make recommendations to address the shortcomings in Vietnam’s intellectual property law with respect to ISP’s liability. This research is perfectly timing, given that Vietnam is amending its Intellectual Property Law to implement its commitments under the new generation free trade agreements and to meet the demand of the Fourth Industrial Revolution

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