Peer-to-Peer Networks, Technological Darwinism, and Intellectual Property Reverse Private Attorney General Litigation

By DAVID W. OPDERBECK, Seton Hall University - School of Law; City University of New York - Department of Law

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Abstract

This paper analyzes "reverse private attorney general" litigation by intellectual property owners against individuals, using the RIAA file sharing litigation as a model.

In this article, I coin the phrase "reverse 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 litigation will become and increasingly important tool for enforcing intellectual property rights. In fact, in the recent Grokster decision, Justice Bryer noted that RIAA's litigation 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 litigation 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 litigation 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 litigation threats.

After describing the RIAA litigation, I discuss whether any of the traditional justifications for private attorney general actions support reverse private attorney general litigation 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 litigation 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.