Evaluating Graduated Response

EVALUATING GRADUATED RESPONSE 1Rebecca Giblin (Pre-publication copy; revision date 6 September 2013) PART 1: PROMISES & AIMS The war against online copyright infringement has been fought on a number of different fronts – via litigation against the P2P software providers who enabled it, the end users who engaged in it, and, most recently, against the ISPs who provide the infrastructure that permits the data to flow. This last strategy has seen powerful content interests forcefully lobbying governments and ISPs worldwide to adopt so-called “graduated responses”. The message has been that content owners shouldn’t be responsible for policing infringement. In the view of the International Federation of the Phonographic Industry (IFPI): actions against individual uploaders are onerous and expensive and we shouldn’t have to be taking them. That job should not be ours – it should be done by the gatekeepers of the 1 Senior Visiting Scholar, U.C. Berkeley School of Law, 2013; Faculty member, Monash University Law School; member, Monash Commercial Law Group. It took a global village to help raise this paper. Special thanks are owed to Professor Pamela Samuelson for generously supporting my work and sponsoring my visit to Berkeley, and for her mentorship and advice along the way.