Keep America Exceptional! Against Adopting Japanese and European-Style Criminalization of Contributory Copyright Infringement

This brief Article, written in connection with a Symposium hosted by the Vanderbilt Journal of Entertainment and Technology Law, addresses nascent criminal enforcement against contributory copyright infringement in connection with P2P file sharing. Using Judge Posner's analysis in the Aimster case as a lens, it discusses recent cases in Japan and Sweden. This Article contends that criminalization involves an inherent uncertainty involving an innovator's knowledge of, and intent for, the future uses of the platform by others. Despite the difficulty of this task, since Japan and the E.U. have seen criminal prosecutions brought against contributory infringers, it should not evoke much surprise that the U.S. music industry is seeking similar sanctions.

However, criminalizing contributory infringement to sanction P2P may bring criminal punishment to bear on innovators with unclear overall effects.