Abstract

This paper analyzes private attorney by intellectual property owners against individuals, using the RIAA file sharing as a model. In this article, I coin the phrase private attorney general litigation to refer to aggregated claims by well-resourced plaintiffs against multiple individual defendants. There are numerous cultural, technological, and legal factors that suggest that reverse private attorney general will become and increasingly important for enforcing intellectual property rights. In fact, in the recent Grokster decision, Justice Bryer noted that RIAA's against end-users serves as a teaching tool concerning intellectual property rights. My reading of the Supreme Court's Grokster decision suggests that this statement is more prescient than Justice Breyer likely realized: Grokster's intent-based standard will not inhibit P2P technology over the long term, and RIAA and other content providers will continue to sue end users directly. My review of the RIAA includes an empirical analysis of the litigation's effect on file sharing norms, including a regression analysis of P2P connectivity data. This analysis strongly suggests that the RIAA has failed to change file sharing norms. Instead, file sharers have been steadily migrating to less centralized networks, resulting in a significant overall increase in file sharing activity. I argue that these data reflect how the norms of file sharing exist in symbiosis with the norms of open source file coding. This relationship results in a technology that evolves resistance to threats. After describing the RIAA litigation, I discuss whether any of the traditional justifications for private attorney general actions support reverse private attorney general in the intellectual property context. These justifications include the advocacy of important social causes, balancing the interests of minority groups against well-funded majorities, aggregating small claims that would not otherwise have been filed, and providing a fail-safe against regulatory capture. I conclude that none of these justifications support the RIAA or other forms of reverse private attorney general intellectual property litigation. I then discuss several alternatives to such litigation, and conclude that a mixed market, levy, and private utility model would better reflect public norms about intellectual property.

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