Digital Piracy: Copyright Infringement on the Internet

Abstract

This paper will focus on Internet media piracy and consumer attitudes towards copyright law and anti-piracy technologies. It will examine the rise of file sharing sites, recent U.S. copyright legislation, why users choose to illegally download content, and how emerging business models might offer potential solutions. This paper is merely a brief overview of digital piracy in American society, and does not examine any of the ethical issues raised by downloading copyrighted material.

Table of Contents

1. Introduction
2. The “Napsterization” of Digital Media
3. Anti-Piracy Legislation in the United States
4. Digital Rights Management: Friend or Foe?
5. Consumer Affects and Effects
6. The Changing Landscape of Media Consumption
7. Conclusion
8. References

Introduction

The Internet has had one of the greatest societal impacts in human history––it has changed the way we learn, the way we communicate, and the way in which we connect with one another. The Internet has established a new age of global interconnectedness and has made information more available and accessible than ever before. As the conduits whereby users access content have changed, it has proven increasingly difficult to protect intellectual property rights on the Internet.

Copyright is a form of intellectual property that bestows an individual or corporation exclusive rights to the use and distribution of registered works. Copyright laws limit access to content so that its creators may profit from their intellectual efforts. The U.S. Copyright Office defines copyright infringement as the unauthorised or unlicensed reproduction, or distribution, of a copyrighted work. Trademarks and patents are examples of traditional means used to protect intellectual property from infringement. “Fair use”––the non-commercial use of copyright material for research, education, etc.––does not constitute copyright infringement.

The Digital Millennium Copyright Act (DMCA), an amendment to U.S. copyright law passed in 1998, extended the reach of copyright laws to cyberspace. The bill criminalised the act of circumventing technologies that are meant to restrict access to copyright material, and increased the penalties for engaging in copyright violation on the Internet. Unfortunately, this has not deterred users from illegally streaming, downloading, and torrenting content at ever-increasing rates via file sharing sites.

The “Napsterization” of Digital Media

Digital piracy was popularised in 1998 when Shawn Fanning developed Napster, a peer-to-peer (P2P) file sharing platform. The site pioneered software that allowed users to locate files on other computers connected to the P2P network. Three years later, 50 million Napster users were trading and downloading over 2.5 billion digital files on the site each month (Strangelove, p. 56). Napster was shut down in 2001 due to massive property rights violations, but later reopened as a pay service. Since then LimeWire, Kazaa, and thousands of other file sharing sites have sprung up on the Internet.

Founded in 2005 by web entrepreneur Kim Dotcom, Megaupload quickly became one of the largest file sharing and viewing sites on the Internet. The website was shut down by the United States Department of Justice in early 2012 following a series of copyright allegations, but was relaunched one year later as cloud storage and file hosting service site MEGA. A message (2013) was posted on the site’s official Twitter account stating “MEGA now hosts 500,000,000 files.” The site receives hundreds of DMCA file takedowns per week, yet millions more are added every day.

MEGA and other P2P sites have begun creating more complex, decentralised network configurations in order to reduce the likelihood of being charged under existing copyright laws. As P2P technology continues to evolve, intellectual property is becoming increasingly less susceptible to regulation on the Internet.

Anti-Piracy Legislation in the United States

The proliferation of P2P sites represents the failure of digital law enforcement against online piracy. Meanwhile, corporate copyright owners have begun to pursue legal action against individual downloaders; the case of Capitol Records Inc et al v. Thomas-Rasset is one such example.

In 2006 several major record labels filed an infringement lawsuit against Minnesota resident Jammie Thomas-Rasset, alleging (Srinivasan, Delery, McIntosh, & Clair, 2013) that she had illegally downloaded and distributed twenty-four audio recordings on P2P site, Kazaa, thereby violating their copyrights. Thomas had received a cease-and-desist letter and settlement offer–– which she declined––from the Recording Industry Association of America (RIAA) the previous year.

Thomas was tried in 2007 and found guilty of wilfully infringing upon copyright. The jury awarded the labels a total of $222,000 in statutory damages, or $9,250 per song. Thomas and her attorney appealed the court’s decision, arguing that the “damages award was excessive and should be reduced under either the common-law remittitur procedure or the Due Process Clause.” The defendant was found guilty once again and ordered to pay $1.92 million in damages, or $80,000 per song out of a constitutional maximum of $150,000. The district court offered to reduce these damages to $54,000 ($2,250/song), agreeing that the amount awarded by the jury was indeed excessive. This decision was rejected by the record labels, and a third jury concluded that Thomas was liable for $1.5 million in statutory damages. This amount was again reduced to $54,000, which was appealed by both parties.

On Sept. 11, 2012 the Eighth Circuit Court of Appeals reinstated the $222,000 sum awarded in the initial trial, stating that it was within the defendants’s rights under the Due Process Clause. Thomas’s petition for a judicial review was denied in 2013.

Thomas was the first of 20,000 citizens that the RIAA has sued to be put on trial. Despite the courts’ ruling in this case, infringement lawsuits against individual downloaders have done little to reduce online piracy. Additionally, there exists growing dissonance between between content providers and service providers.

In 2007, Viacom filed a $1 billion lawsuit against YouTube, one of the most popular video streaming platforms on the Internet. The media conglomerate claimed (McSherry, 2013) that Google had illegally broadcast tens of thousands of copyrighted videos on it’s site. Viacom’s damages claims were rejected under the Online Copyright Infringement Liability Limitation Act (OCILLA)––or “safe harbour”––provision of the DMCA, which limits the accountability of websites that host infringing content.

YouTube was not considered to have breached copyright law because the site did not explicitly motivate users to upload copyrighted material. After seven years of litigation, the companies reached an undisclosed settlement. Viacom Inc. v. YouTube, Google Inc. determined the scope of the DMCA, making the case a milestone in copyright legislation. It concluded that digital service providers may not be held responsible for copyright violations so long as they promptly remove any content that copyright holders demand be taken down.

The United States government has strictly upheld the unlawfulness of copyright infringement, but both of the above cases illustrate the complexities and constitutional limits of copyright legislation. These types of lengthy, expensive trials are by no means the exception. In the meantime, millions of Internet users continue to illegally download music, films, software, and various other media on a daily basis.

In an attempt to curtail this phenomenon, U.S. Representative Lamar S. Smith created the Stop Online Piracy Act (SOPA) in 2011. The proposed law was aimed at websites that enabled or supported copyright infringement, and included measures to expand upon digital copyright enforcement. Although SOPA received support from several organisations, the bill sparked massive online protest. Critics argued that SOPA would bypass the “safe harbour” provision of the DMCA, making entire sites open to suspension due to the illegal activities of a minority of users.

A petition to the White House against the act gained over 100,000 signatures. In an official statement (Espinel, Chopra, & Schmidt 2012), the Obama administration officially responded that “While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cyber security risk, or undermines the dynamic, innovative global Internet.” Plans to draft SOPA have since been postponed.

Digital Rights Management: Friend or Foe?

In 2013, Microsoft announced that their Xbox One gaming console would support restrictive authentication and other anti-piracy measures. Microsoft planned to place restrictive policies on pre-owned games in order to regulate the sharing or resale of purchased titles, which would grant the company greater control over content and licensing. These policies would also force players to reimburse the company for services that were traditionally free, such as multiplayer gaming. Microsoft revoked this decision (Mattrick, 2013) one week later at the Electronic Entertainment Expo (E3) following significant consumer backlash.

Microsoft’s planned restrictions are an example of digital rights management (DRM) technology, also referred to as copy protection. DRM––which is protected under the DMCA––is a means of safeguarding copyright holder’s interests. DRM technology has attracted a great deal of controversy; detractors claim that such methods limit innovation. Attempts to enforce digital rights restrictions are usually not well-received by the public, as users will often find ways to sidestep DRM protection or seek pirated media instead. Strangelove (2005, p. 73) states that “Laws are often irrelevant in the real-world of online behaviour and technological restraints are frequently circumvented.”

Consumer Affects and Effects

There are numerous factors that motivate users to illegally download content. Low income, coupled with the high price of entertainment media and software, is among the most common incentives to engage in digital piracy; many people are either unwilling or unable to afford what is being sold by the media industry. Users who are concerned with the safety of their personal information might chose to access content illegally and anonymously, rather than provide credit card details to a legitimate seller. Access problems, such as geographical restrictions, may also force users to turn to illegitimate sources. A product that is unavailable in certain countries may be instantly accessed from anywhere via the Internet. In today’s culture of immediate gratification, it is the immediacy of downloadable content that is most appealing to consumers. Additionally, the removal of advertisements and disclaimers from make the final product more desirable and user-friendly.

The vast majority of Internet users have embraced digital piracy, despite the threat of potential legal implications. To further complicate matters, most individuals have a limited understanding of how copyright law works. A Gallup Youth Survey (2003) indicated that 83% of teens believe that it is “morally acceptable to download ‘music from the Internet for free’.” Ethics aside, is digital piracy truly as detrimental as the media industry claims?

Despite being the most pirated show of 2012, HBO’s popular TV series, Game of Thrones, has broken the company’s DVD sales records (PBS Idea Channel, 2013). The cultural buzz generated by sharing episodes online boosted sales and offset financial losses incurred by illegal downloading. This suggests that media piracy may actually be beneficial in some circumstances.

In an effort to adjust to the realities of music pirating, a handful of mainstream musicians have offered their albums for free online in exchange for optional donations. Word-of-mouth remains one of the most effective means of popularising media. Many artists aiming for exposure have chosen to apply Creative Commons licenses to their work, which allows them to detail how their intellectual property is shared by users. As music-streaming becomes increasingly popular, so has the application of these licenses.

The Changing Landscape of Media Consumption

New ad-supported platforms now allow users to retrieve large amounts of content for little to no cost; some offer a mix of both free and paid means of accessing content. Successful business models include Pandora, Spotify, and Netflix. Perhaps these innovative service providers are the forerunners of a new model of media consumption. Free content will invariably possess greater appeal than subscription-based material, though there are still those who would still chose to support affordable, legitimate media. Instead of pursuing shortsighted regulatory measures, the media industry might benefit more by establishing more legal means of downloading content.

Alternative methods to stop digital piracy do exist, though the implementation of a global online anti-piracy system is unrealistic. Users have proven adept at using the technology at their disposal to evade or resist legal barriers. Strangelove (2005, p. 221) notes that “Only by appealing to the possible application of tyrannical measures, the elimination of competition within the market, the universal application of a regulatory legal regime, along with discounting resistance, evasion, and political mobilisation, is it possible to theorise the erosion of expressive freedoms online.”

Conclusion

The free circulation of art is as important as free circulation of knowledge, and it is apparent that the regulation of information is no longer in the hands of copyright owners. Despite the U.S. government’s attempts to enforce copyright law, media piracy continues to rank among our society’s most pressing communication issues. Consumers clearly feel that the benefits of digital piracy outweigh any relevant legal or ethical principles, though streaming and downloading content through legitimate ad-supported platforms is becoming an increasingly popular means of accessing content. While the inherent nature of the Internet makes it difficult to predict the future, one thing is for certain: digital piracy is here to stay.

References

United States Copyright Office. (n.d.). Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code. Copyright Infringement and Remedies. [Online]. Retrieved November 22, 2014 from http://www.copyright.gov/title17/92chap5.html.

Strangelove, Michael. (2005). The empire of the mind: Digital piracy and the anti-capitalist movement. [Print]. University of Toronto Press.

MEGA [MEGAprivacy]. (2013, November 27). MEGA now hosts 500,000,000 files. [Tweet]. Retrieved November 1, 2014 from https://twitter.com/MEGAprivacy/status/405884032501567488.

Srinivasan, Sri, Stuart F. Delery, Scott R. McIntosh, & Jeffrey Clair. (2013, February). Capitol Records Inc et al. v. Thomas-Rasset, 8th U.S. Circuit Court of Appeals, No. 12-715. Brief for the United States in Opposition. [PDF]. Retrieved November 22, 2014 from http://www.justice.gov/sites/default/files/osg/briefs/2012/01/01/2012-0715.resp.pdf.

McSherry, Corynne. (2013, November 1). Viacom International Inc et al. v. YouTube Inc et al., 2nd U.S. Circuit Court of Appeals, No. 13-1720. Brief of Amici Curiae Electronic

Frontier Foundation and Public Knowledge in Support of Appellees and Affirmance. [PDF]. Retrieved November 24, 2014 from https://www.eff.org/files/2013/11/04/viacom-youtube-second-appeal-amicus_brief_eff-pk-final-as-filed.pdf.

Espinel, Victoria, Aneesh Chopra, & Howard Schmidt. (2012, January 14). Combating Online Piracy while Protecting an Open and Innovative Internet. [Online]. Retrieved November 23, 2014 from https://petitions.whitehouse.gov/response/combating-online-piracy-while-protecting-open-and-innovative-internet.

Mattrick, Don. (2013, June 19). Your Feedback Matters – Updates on the Xbox One. Xbox Wire[Online]. Retrieved October 20, 2014 from http://news.xbox.com/2013/06/update.

PBS Idea Channel. (2013, March 20). Is Piracy Helping Game of Thrones? [Video file]. Retrieved October 14, 2014 from https://www.youtube.com/watch?v=0U3RE_NB0EA.

Hanway, Steve & Linda Lyons. (2003, September 30). Teens OK With Letting Music Downloads Play. [Online]. Retrieved on November 25, 2014 from http://www.gallup.com/poll/9373/teens-letting-music-downloads-play.aspx.