Oregon Law Review : Vol. 89, No. 1, p. 081-132 : Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement
This Article seeks to explain why voluntary graduated response, as publicly controversial as it is, is squarely on the table as corporate rights owners and broadband providers discuss their respective roles in the future of online copyright enforcement. It situates the rapprochement now taking place between the two groups within the context of copyright law’s special rules of liability for intermediaries that act as “mere conduits” for their customers’ communications. These rules, which have historically insulated ISPs from liability for the infringing transmissions of their customers, are becoming less clearly applicable as broadband providers deploy “intelligent” routers within their networks, giving them the ability to inspect, sort, and filter the traffic they carry. As broadband business models evolve away from the traditional model of passive carriage, ISPs risk sacrificing the special protections that have developed over time to shield neutral intermediaries from liability for copyright infringement. This potential exposure gives ISPs a compelling incentive to explore private partnerships with rights owners that would once have been politically unthinkable.