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Chasing Echos Of Obscenity Exceptionalism In Copyright: Recent Swarm Cases, James R. Alexander
Chasing Echos Of Obscenity Exceptionalism In Copyright: Recent Swarm Cases, James R. Alexander
Chicago-Kent Journal of Intellectual Property
Recent district court rulings regarding copyright violations using BitTorrent file-sharing protocols to illegally download pornographic films have been numerous and largely procedural. But some have casually included language challenging the established doctrine of content neutrality in copyright, noting that obscenity exceptionalism might still be within the court’s policy discretion. This article traces these recent rulings and finds little substantive argument on behalf of exceptionalism other than its long-time understanding under common law, now abandoned. It also examines the critical early nineteenth century common law rulings considered seminal in establishing content exceptionalism in copyright and finds that current court references to …