Is Online Copyright Enforcement Scalable? University of Idaho law professor Annemarie Bridy asks and answers that question in a new article that
. . . examines peer-to-peer (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 P2P network designers solved difficult problems of scale in their efforts 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.
Section I traces the evolution of P2P networks from Napster to BitTorrent, with a focus on the relative scalability of successive architectures. Section 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, whether qualitative or quantitative, drive copyright policy and law enforcement priorities. Section III evaluates the efficacy of the Digital Millennium Copyright Act (DMCA) as a policy mechanism for scaling up online copyright enforcement. I argue in Section 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 a dysfunctional workaround in the form of mass John Doe litigation. Section 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.