The legitimacy of graduated response schemes in copyright law

In an attempt to curb online copyright infringement, copyright owners are increasingly seeking to enlist the assistance of Internet Service Providers to enforce copyright and impose sanctions on their users. Commonly termed ‘graduated response’ schemes, these measures generally require that the ISP take some action against users suspected of infringing copyright, ranging from issuing warnings, to collating allegations made against subscribers and reporting to copyright owners, to suspension and eventual termination of service.

This article highlights fundamental tensions between graduated response schemes and the rule of law, a fundamental tenet of the Australian legal system. Graduated response schemes shift the task of adjudicating upon and enforcing copyright away from the courts and onto intermediaries. This shift is designed to reduce enforcement costs and avoid the public relations problems associated with the large scale litigation campaigns the copyright industry has previously adopted in the United States. The weakening of judicial oversight, however, poses significant problems for legitimacy. In most common forms, graduated response schemes are highly problematic with regards to due process, the proper exercise of the judicial power of the Commonwealth, and respect for the rights of Australian internet users.

Nicolas Suzor and Brian Fitzgerald, “The legitimacy of graduated response schemes in copyright law” (2011) 34(1) University of New South Wales Law Journal 1.

2 thoughts on “The legitimacy of graduated response schemes in copyright law

  • Interesting paper, but is your argument not political, rather than legal? You demonstrate pretty clearly that there is no authority for the proposition that private ordering of the use of ISP networks is subject to requirements of proportionality or the presumption of innocence.

  • One of the points we make is that it isn’t really private ordering if the ISPs face secondary copyright liability that effectively requires them to implement a graduated response scheme.

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