American Exceptionalism, the French Exception, Intellectual Property Law, and Peer-to-Peer File Sharing on the Internet

A fundamental problem confronting policy makers is how to apply intellectual property rules and regulations developed for tangible intellectual property assets in real space to intangible, dematerialized intellectual property in cyberspace. The United States and France are self-described exceptionalist countries. American exceptionalism refers to the historical tendency of the United States to emphasize its unique status as the beacon of liberty, while l ’exception française (the French exception) refers to the French ideological posture that emphasizes the specificity and superiority of French culture. American exceptionalism and l ’exception française are functionally equivalent theoretical constructs that describe and explain how the United States and France highlight their respective political and cultural specificities vis-à-vis the rest of the world. The copyright regime of the United States reflects American exceptionalism, while the French régime de droit d ’auteur (author ’s right regime) reflects the French exception. The purpose of this article was to study the exceptional intellectual property regimes of the United States and France, using as a comparative case study application of intellectual property laws designed for the offline environment, to online peer-to-peer file sharing on the Internet. A comparative analysis of statutory and case law in the United States and France demonstrates that: 1) The American intellectual property regime has a presumption against the legality of peer-to-peer file-sharing networks that exchange copyrighted material without permission, and 2) the French intellectual property regime classifies peer-to-peer file-sharing on the Internet as piracy, a criminal offense. The American intellectual property regime often grants copyright holders the power to violate the due process and privacy rights of citizens accused of copyright infringement, while the French system allows law enforcement officials and royalty collection societies to violate the “presumption of innocence ” and privacy rights of accused peer-to-peer file-sharers