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Article
Criminal Copyright Enforcement Against Filesharing Services
North Carolina Journal of Law and Technology (2013)
  • Benton C. Martin, Emory University
  • Jeremiah R. Newhall, George Washington University
Abstract

The high-profile prosecution of the popular online storage website Megaupload for criminal copyright infringement is the latest in a series of recent criminal prosecutions of online filesharing services. But what pushes a legitimate online file-storing business over the edge to criminal enterprise? How might criminal copyright enforcement differ materially from civil enforcement?

This article answers these questions and suggests guidelines for prosecutorial discretion. After a condensed history of criminal copyright law, we explain why "secondary" theories of infringement apply in the criminal, as well as civil, context and why the DMCA "safe harbor" defense is a red herring in criminal copyright actions. We then propose guidelines for prosecutors to consider before bringing a criminal enforcement action against filesharing services: Limiting prosecutions to theories of liability already established in civil case law, and targeting only those filesharing-service operators that openly defy civil enforcement actions.

Keywords
  • copyright law,
  • criminal law,
  • criminal copyright
Publication Date
Fall 2013
Citation Information
Benton C. Martin and Jeremiah R. Newhall. "Criminal Copyright Enforcement Against Filesharing Services" North Carolina Journal of Law and Technology Vol. 15 (2013)
Available at: http://works.bepress.com/benton_martin/14/