Cyber Piracy: Can File Sharing be Regulated without Impeding the Digital Revolution?

This thesis explores regulatory mechanisms of managing the phenomenon of file sharing in the online environment without impeding key aspects of digital innovation, utilising a modified version of Lessig’s modalities of regulation to demonstrate significant asymmetries in various regulatory approaches. After laying the foundational legal context, the boundaries of future reform are identified as being limited by extra-jurisdictional considerations, and the regulatory direction of legal strategies to which these are related are linked with reliance on design-based regulation. The analysis of the plasticity of this regulatory form reveals fundamental vulnerabilities to the synthesis of hierarchical and architectural constraint, that illustrate the challenges faced by the regulator to date by countervailing forces. Examination of market-based influences suggests that the theoretical justification for the legal regulatory approach is not consistent with academic or policy research analysis, but the extant effect could impede openness and generational waves of innovation. A two-pronged investigation of entertainment industry-based market models indicates that the impact of file sharing could be mitigated through adaptation of the traditional model, or that informational decommodification could be harnessed through a suggested alternative model that embraces the flow of free copies. The latter model demonstrates how the interrelationships between extant network effects and sub-model externalities can be stimulated to maximise capture of revenue without recourse to disruption. The challenges of regulating community-based norms are further highlighted where the analysis submits that the prevalence of countervailing forces or push-back from the regulated act as an anti-constraint to hierarchical and design-based regulation, due to an asymmetry between legal, architectural and traditional market-based approaches, and effective control of the file sharing community. This thesis argues that file sharing can be regulated most efficaciously by addressing this asymmetry through alternative market-based strategies. This can be influenced through extending hierarchical regulation to offer alternative legal and norm-based models that complement, rather than disrupt, the community-based norms of file sharing.