RUTGERS LAW JOURNAL [Vol
R U T G E R S L A W J OURNAL VOLUME 40 SPRING 2009 NUMBER 3 WHY PIRATES (STILL) WON’T BEHAVE: REGULATING P2P IN THE DECADE AFTER NAPSTER Annemarie Bridy Governing people, in the broad meaning of the word, governing people is not a way to force people to do what the governor wants; it is always a versatile equilibrium, with complementarity and conflicts between techniques which assure coercion and processes through which the self is constructed or modified by himself. – Michel Foucault1 INTRODUCTION Napster went legit years ago. Grokster and Aimster are fading memories. And the once ubiquitous media coverage of peer to peer (“P2P”) file sharing has dwindled to occasional updates on legal and tech blogs. But hundreds of lawsuits, thousands of takedown notices, and millions of dollars later, victory Associate Professor, University of Idaho College of Law. The author would like to thank David Post and Clint Jeffery for comments on earlier drafts of this article and the Institute for Intellectual Property and Information Law at the University of Houston Law Center, which funded the project through its Sponsored Scholarship Grant Program. Thanks also to Axel Krings and participants in the University of Idaho CS (Computer Science) Colloquium, where portions of this article were presented. 1. Michel Foucault, About the Beginning of the Hermeneutics of the Self: Two Lectures at Dartmouth, 21 POL.THEORY 198, 203-204 (1993) (footnote omitted). 565 566 RUTGERS LAW JOURNAL [Vol. 40:565 for the entertainment industry in the war on P2P remains elusive. Illegal music file sharing, notwithstanding the popularity of legal download services like iTunes, continues by all accounts at a robust rate, with The Economist reporting that for every one song that is legally purchased, about twenty are illegally downloaded.2 For organizations like the Recording Industry Association of America (“RIAA”), this is a devastating statistic not only because it signifies a wealth of lost revenue, but also because it signifies a long-running failure of both public and private regulation.
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