Academic articles

Decreasing Copyright Enforcement Costs: the scope of a graduated response

Olivier Bomsel, Heritiana Ranaivoson (CERNA, Mines ParisTech), Review of Economic Research on Copyright Issues (2009) vol. 6(2), pp. 13-29

The paper reviews the economic literature on copyright that focuses on its industrial aspects. It then analyses how, all along the distribution vertical chain, the consumer’s impunity provides incentives to free ride on copyright, which rapidly increases copyright enforcement costs. It depicts the graduated response mechanism and the voluntary agreement that initiated this system in France, concluding that the increase in the cost of free-riding for the final consumer should lead to a decrease in copyright enforcement costs and to higher returns in the creative industries.

The ‘Graduated Response’ in France : Is It the Good Reply to Online Copyright Infringement

Alain Strowel, Universities of Saint-Louis, Brussels, University of Liege, in: Copyright Enforcement and the Internet, ed. I. Stamatoudi  2010, p. 147-161

Fighting consumer piracy with graduated response: an evaluation of the French and British implementations

Thierry Rayna, Laura Barbie (London Metropolitan Business School), International Journal of Foresight and Innovation Policy 2010 – Vol. 6, No.4  pp. 294 – 314

This paper aims to assess the graduated response systems implemented in France (HADOPI) and in the UK (Digital Economy Act) to reduce consumer piracy. It investigates the rationale of graduated response and its requirements and evaluates (from theoretical and practical standpoints) both French and British systems. While the French system fulfils more requirements, the British system reflects a more cautious approach that involves a ‘double’ graduated response. The costs of both implementations are then investigated. The paper is concluded with remarks on the value of graduated response, the potential problems caused by technological issues and the timeliness of such policies.

Graduated response initiatives in Europe. An analysis of initiatives and stakeholder discourses

Trisha Meyer, Leo Van Audenhove, Luciano Morganti (IBBT-SMIT), Conference paper, presented at 37th Research Conference on Communication, Information, and Internet Policy, George Mason University School of Law. Arlington, VA, 25 – 27 September 2009

Meyer et al analyse consultation responses to the European Commission’s Communication on Creative Content Online (January 2008), finding an even balance of support among stakeholders for and opposition to Graduated Response and filtering as solutions to online piracy, in accordance with apparent self-interest. The article contains a valuable history of the legislative preparations in France and the United Kingdom leading up to the HADOPI laws and Digital Economy Bill.

Graduated response and the emergence of a European surveillance society

Trisha Meyer, Leo Van Audenhove (IBBT-SMIT), “Graduated response and the emergence of a European surveillance society”, (2010) INFO, Vol. 12 Issue 6, pp.69 – 79 (Available for purchase)

The paper reflects on and frames graduated response in terms of theories on surveillance society and code. In particular, it analyses the graduated response debate in the European Union and the current initiatives in France and the UK. It argues that graduated response portrays rights holders as being in a state of emergency, is a form of social sorting, and has a technological bias. The paper contends that many objections raised to graduated response have been reduced to issues concerning the procedure rather than the principle, and that important societal questions concerning graduated response remain un(der)explored.

Political Economies of Copyright, Droit DʼAuteur and the Internet: Convergence or Clash?

Trisha Meyer, Institute for European Studies, Brussels

Conference paper, September, 2011. TPRC 2011.

The author contends that the Internet and copyright as institutions have implicit values which are put in conflict by the Graduated Response. Proponents of strong copyright protection have pushed public policy in the direction of a closed, controlled Internet at the expense of wider distribution and creativity.

Graduated response in France: the clash of copyright and the Internet

Trisha Meyer, Institute for European Studies, Brussels

Journal of Information Policy 2 (2012): 107-127 Doctoral Researcher in Communication Studies, Institute for European Studies, Vrije Universiteit, Brussels

Digital Network Repertoires and the Contentious Politics of Digital Copyright in France and the European Union

Yana Breindl, François Briattey, Conference paper, presented at “Internet, Politics, Policy 2010: An Impact Assessment”, Oxford Internet Institute, 16–17 September 2010

The French “Three Strikes Law” against digital piracy and the change in usages of pirates

Sylvain Dejean, Telecom Bretagne; Thierry Penard, CREM, Université de Rennes1; Raphaël Suire, CREM, Université de Rennes1. Conference paper, presented at “Internet, Politics, Policy 2010: An Impact Assessment”, Oxford Internet Institute, 16–17 September 2010

Une première évaluation des effets de la loi Hadopi sur les pratiques des Internautes français

Sylvain Dejean, Thierry Pénard et Raphaël Suire; M@rsouin, CREM et Université de Rennes 1, March 2010

Digital Files Dealers and Prohibition in the Context of the French 3 Strikes (HADOPI) Law

Sylvain Dejean, Raphaël Suire
Université de Rennes I – Center for Research in Economics and Management (CREM), April 14, 2014

Graduated Response Policy and the Behavior of Digital Pirates: Evidence from the French Three-Strike (Hadopi) Law

Arnold, Michael A., Darmon, Eric, Dejean, Sylvain and Pénard, Thierry, Working Paper, January 16, 2014

La réponse graduée de l’Hadopi a-t-elle un effet sur le piratage de musique et de films?Une étude empirique des pratiques de consommation en ligne

Darmon, Eric, Dejean, Sylvain and Pénard, Thierry, Working Paper, November, 2014

Graduated response and the turn to private ordering in online copyright enforcement

Annemarie Bridy, Oregon Law Review, Vol. 89, p. 81, 2010

The author seeks to explain, in the context of evolving network management technology and its impact on intermediary liability rules, why the time may be ripe for broadband providers and corporate rights owners to renegotiate their respective roles in the project of online copyright enforcement. She proposes a set of principles to guide the implementation of graduated response regimes so that consumers do not fall victim to immature filtering technologies and overzealous enforcement.

ACTA and the specter of graduated response

Annemarie Bridy, (2011) American University International Law Review 26 (3)

The author makes the case that the omission of mandatory graduated response from the final text of ACTA should not be taken as a definitive sign that the entertainment industries have failed in their concerted effort to globalize graduated response. On the contrary, ACTA in its final form both accommodates existing graduated response mandates and requires parties to promote the development of voluntary graduated response regimes in countries where mandates do not exist.

Graduated Response American Style: ‘Six Strikes’ Measured Against Five Norms

Annemarie Bridy, University of Idaho – College of Law (2011) SSRN

The article seeks to assess the Copyright Alert System established by inter-industry agreement in the US (see United States) against five norms that are central to consumer protection in the enterprise of online copyright enforcement: freedom of expression, privacy, fairness, proportionality, and transparency

The legitimacy of graduated response schemes in copyright law

Nick Suzor and Brian Fitzgerald, Queensland University of Technology, (2011) 34(1) University of New South Wales Law Journal 1

Authors express concerns about voluntary and legislated Graduated Response schemes, which in their opinion may infringe principles of the rule of law.

The Graduated Response

Peter K. Yu, Drake University Law School Florida Law Review, Vol. 62, pp. 1373-1430, 2010

The author attempts to explore the GR system’s effectiveness in addressing massive online copyright infringement. He outlines seven basic principles which, in his opinion, policymakers need to take into account if they choose to institute such a system despite its many shortcomings.

The French Copyright Authority (HADOPI): the Graduated Response and the Disconnection of Illegal File‐Sharers

Jondet, Nicolas, University of Edinburgh

Conference paper, August, 2010. TPRC 2010.

Intermediaries in the eye of the copyright storm: A comparative analysis of the three strike approach within the European Union

Evi Werkers, ICRI – K.U.Leuven ICRI Working Paper 4/2011, 7th International Conference on Internet Law & Politics (IDP 2011)

Three strikes law: a least cost solution to rampant online piracy

Charn Wing Wan

Journal of Intellectual Property Law & Practice (2010) 5 (4) (Available for purchase)

The French Revolution 2.0: Copyright and the Three Strikes Policy

Eldar Haber, Tel Aviv University (2010) Harvard Journal of Sports & Entertainment Law 2 (2)

Access to Network Services and Protection of Constitutional Rights: Recognizing the Essential Role of Internet Access for the Freedom of Expression

Lucchi, Nicola, Jönköping International Business School

Cardozo Journal of International and Comparative Law (JICL), Vol. 19, No. 3, 2011

The Effect of Graduated Response Anti-Piracy Laws on Music Sales: Evidence from an Event Study in France

Brett Danaher, Michael D. Smith, Rahul Telang, Siwen Chen

Using data from leading record labels, the authors find that the introduction of the Graduated Response in France resulted in an increase in legitimate iTunes sales of 22.5% for songs and 25% for albums.

Video presentation by Prof. Danaher, Canadian Music Week, 23 March 2012

‘Graduated Response’ à l’Anglaise: Online Copyright Infringement and the Digital Economy Act 2010

Anne Barron, London School of Economics & Political Science

Journal of Media Law, Vol. 3, No. 2, pp. 305-347, December 2011

Graduated response beyond the copyright balance. Why and how the French HADOPI takes consumers as targets

Heritiana Ranaivoson, Anne-Catherine Lorrain

(2012) info, Vol. 14 Issue 6 (Available for purchase)

Graduated Response by Industry Compact: Piercing the Black Box

Mary LaFrance, William S. Boyd School of Law, University of Nevada, Las Vegas.

(2012) 29 Cardozo Arts & Ent. L.J. 238

Graduated Response Systems and the Market for Copyrighted Works

John M. Owen, University of California, Berkeley School of Law (J.D. Candidate)

(2012) 27 Berkeley Technology Law Journal 559

Evaluating Graduated Response

Rebecca Giblin, Monash University – Faculty of Law37 Columbia Journal of Law & the Arts 147-209 (2014)
Monash University Faculty of Law Legal Studies Research Paper No. 2013/56

The author makes a somewhat tendentious attempt to demonstrate that the graduated response does not achieve its intended effects.

Note: Dr. Giblin has objected to my description of her article as “somewhat tendentious”.  I post our discussion of her article here.

Unblocking the Digital Economy Act 2010; human rights issues in the UK

Felipe Romero-Moreno, Oxford Brookes University (PhD Candidate)

(2013) Vol. 27, nos 1-2, International Review of Law, Computers & Technology

Incompatibility of the Digital Economy Act 2010 subscriber appeal process provisions with Article 6 of the ECHR

Felipe Romero-Moreno, Oxford Brookes University (PhD Candidate)

(2014) Vol. 28, no. 1, International Review of Law, Computers & Technology

The Digital Economy Act 2010: subscriber monitoring and the right to privacy under Article 8 of the ECHR

Felipe Romero-Moreno, School of Law, Hertfordshire University

(2016) International Review of Law, Computers & Technology

Graduated Responses to Online Piracy: Approaches Taken in the United States and Around the World

Elton, Serona in Mathieu Deflem (ed.) Music and Law (Sociology of Crime Law and Deviance, Volume 18), Emerald Group Publishing Limited, pp.37-58 (available for purchase)

The author examines the legal, political and industrial origins and current state of the Graduated Response in several countries.

The Amended Digital Economy Act 2010 as an Unsuccessful Attempt to Solve the Stand Alone Complex of Online Piracy 

Garstka, Chris, Cambridge University

(2012) 43(2) International Review of Intellectual Property and Competition Law 158

Právní aspekty monitorování přenášených dat a kontroly přístupu v prostředí Internetu (Legal Issues in Data Monitoring and Access Control on the Internet) (in Czech)

Martin Thurzo, Master’s dissertation, Faculty of Law, Masaryk University

A court-ordered graduated response system in Ireland: the beginning of the end?

Kelly, Gerard, solicitor for the unsuccessful defendant ISP

Journal of Intellectual Property Law & Practice (2016) 11 (3): 183-198.

The redistributive effect of online piracy on the box office performance of American movies in foreign markets

Bellégo, Christopher and De Neijs, Romain, (2015) Working paper, Institut National de la Statistique et des Etudes Economiques, France