What is Piracy?

posted March 29, 2011 by .

What is piracy? When used to describe copyright infringement, the term causes a lot of debate.

Some say the term is inaccurate, since “piracy” only describes sea-faring buccaneers of the “Aaargh, matey” type. 1Richard Stallman, 21 Words to Avoid (1996). Others suggest it is inappropriate when applied to anything but large-scale, commercial counterfeiting of copyrighted works — an effort to invoke negative connotations of all unauthorized uses of copyrighted works in order to increase the scope of laws and enforcement in favor of copyright holders. 2William Patry, Moral Panics and the Copyright Wars, pp. 92-96 (Oxford University Press 2009); Jessica Litman, Digital Copyright, pp. 85-86 (Prometheus Books 2006).

Even setting aside these arguments, debate remains over the meaning of the term. Is all copyright infringement piracy? Or does it only refer to specific types of copyright infringement?

This post isn’t about addressing the arguments about the term or coming to a settled definition of the word — not to say either is unimportant or not interesting. Instead, I want to focus only on how I use the term on this site. Words are important, and I use the term piracy quite frequently here, so I want to clarify what I mean when I use it and why I use it that way.

I use “piracy” to refer to a subset of copyright infringement, specifically, the widespread reproduction and distribution of exact copies of an entire work without authorization. In this sense, the term is merely shorthand since I write a lot about the issues revolving around this type of infringement. Put another way, my use is descriptive rather than normative. This definition reflects how the term is commonly used today — I’ll leave to others the question of whether this definition reflects how the term should be used.

Historical Usage

“Pirate” comes from the latin Pirata, meaning “sailor” or “sea robber,” which itself comes from the Greek peirates, “brigand.” 3“Pirate“, Online Etymology Dictionary. Since the time of the Ancient Greeks, the term has been used to describe those who plunder at sea.

The term “piracy” began to be applied to the plundering of intellectual property around the mid-1600s — give or take a few decades, depending on who you ask. 4Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates, pg. 23 (University of Chicago Press 2009); The Oxford English Dictionary has 1603 as the earliest use in this manner, while the Online Etymology Dictionary dates the first recorded use to 1701.

The earliest appearances of the term, pre-dating the Statute of Anne and our modern idea of copyright, used it more to describe personal plagiary — the passing off of another’s work as one’s own — then the unauthorized reproduction of a work. It’s interesting to note that the term “plagiarism” itself comes from the classical Latin term plagiarius, meaning “kidnapper, seducer, plunderer.” 5“Plagiarism,” Online Etymology Dictionary. By the 18th century, “piracy” was being used to describe copyright infringement. 6It has, throughout history, also been used to refer to certain practices outside of copyright infringement — pirate radio and pirate buses, for example.

Indeed, in the early 19th century, the two terms were often used interchangeably. In Cary v. Kearsley, an 1803 English case that serves as a sort of godfather to the modern U.S. doctrine of fair use, the court explained, “That part of a work of one author is found in another, is not itself piracy, or sufficient to support an action; a man may fairly adopt part of the work of another; he may so make use of another’s labours for the promotion of science, and the benefit of the public.” 74 Esp. 168, via William Patry, Fair Use and Fair Abridgment, Patry Copyright Blog (Oct. 14, 2005); see also Campbell v. Acuff-Rose Music, 510 US 569, 575-576 (1994).

Justice Story also used the term piracy as a synonym of copyright infringement. In Folsom v. Marsh, he refers to “the question of piracy” where today a court would refer to the question of copyright infringement. 89 F. Cas 342 (1841). Likewise, in Emerson v. Davies, he wrote, “The question is, whether the latter work is a piracy upon any part of the former work, which the author of that work had a right to claim as his own property, in respect that it was his own composition.” 98 F. Cas. 615 (Cir. Ct D. Mass 1845).

Current Usage

Nowadays, the scope of the term has been narrowed; most courts, scholars, and commentators use piracy to refer to only a specific type of copyright infringement rather than all infringement. 10Though, as always, there are exceptions. See, e.g., SAS Institute v. S&H Computer Systems, 605 F.Supp. 816, 829-30 (MD Tenn 1985): “The question of the substantiality of the similarity is also a question of fact; the piracy of even a quantitatively small fragment (‘a rose by any other name would smell as sweet’) may be qualitatively substantial.”

The Supreme Court in Goldstein v. California explained that the petitioners were engaged in “what has commonly been called “record piracy” or “tape piracy”—the unauthorized duplication of recordings of performances by major musical artists.” 11412 US 546, 549 (1973). Though a patent case, the Court in Graver v. Linde implied that pirating a copyrighted work is an act of “unscrupulous” copying, where any variations are made not out of a creative nature, but only to “conceal and shelter the piracy.” 12339 US 605, 607 (1950).

Many scholars adopt the same definition as courts. Mark Lemley and Eugene Volokh talk about “outright piracy” as those cases where a defendant makes “identical or nearly identical copies” of a protected work, “and there is no claim of fair use.” 13Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147, 211 (1998). Law professor Michael J. Meurer defines piracy as “the unauthorized public distribution of literal copies of a copyrighted work,” making a pirate, in the economic sense, “a competing supplier of the copyright holder.” 14Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works, 45 Buffalo Law Review 845 (1997).

While “piracy” is not a legal term, it has been used descriptively by Congress when holding hearings or passing legislation. The law making certain types of copyright infringement a felony was called the Piracy and Counterfeiting Amendments Act of 1982. 15PL 97-180, 96 Stat 91, 93. The infringement covered by the act must be both willful and “for purposes of commercial advantage or private financial gain” — with higher penalties for the unauthorized reproduction and distribution of multiple copies.

Industry groups also limit the scope of what types of infringement are defined as piracy. The RIAA describes some of the forms piracy can take on its website: “individuals who illegally upload or download music online, online companies who build businesses based on theft and encourage users to break the law, or criminals manufacturing mass numbers of counterfeit CDs for sale on street corners, in flea markets or at retail stores.” The IFPI, in discussing online piracy, is referring only to file-sharing type activities.

Based on these (and many other) examples, I think my definition of piracy fairly represents the commonly accepted usage of the term.

References   [ + ]

1. ↑ Richard Stallman, 21 Words to Avoid (1996).
2. ↑ William Patry, Moral Panics and the Copyright Wars, pp. 92-96 (Oxford University Press 2009); Jessica Litman, Digital Copyright, pp. 85-86 (Prometheus Books 2006).
3. ↑ “Pirate“, Online Etymology Dictionary.
4. ↑ Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates, pg. 23 (University of Chicago Press 2009); The Oxford English Dictionary has 1603 as the earliest use in this manner, while the Online Etymology Dictionary dates the first recorded use to 1701.
5. ↑ “Plagiarism,” Online Etymology Dictionary.
6. ↑ It has, throughout history, also been used to refer to certain practices outside of copyright infringement — pirate radio and pirate buses, for example.
7. ↑ 4 Esp. 168, via William Patry, Fair Use and Fair Abridgment, Patry Copyright Blog (Oct. 14, 2005); see also Campbell v. Acuff-Rose Music, 510 US 569, 575-576 (1994).
8. ↑ 9 F. Cas 342 (1841).
9. ↑ 8 F. Cas. 615 (Cir. Ct D. Mass 1845).
10. ↑ Though, as always, there are exceptions. See, e.g., SAS Institute v. S&H Computer Systems, 605 F.Supp. 816, 829-30 (MD Tenn 1985): “The question of the substantiality of the similarity is also a question of fact; the piracy of even a quantitatively small fragment (‘a rose by any other name would smell as sweet’) may be qualitatively substantial.”
11. ↑ 412 US 546, 549 (1973).
12. ↑ 339 US 605, 607 (1950).
13. ↑ Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147, 211 (1998).
14. ↑ Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works, 45 Buffalo Law Review 845 (1997).
15. ↑ PL 97-180, 96 Stat 91, 93.

Friday’s Endnotes – 03/24/11

posted March 25, 2011 by .

There’s an old joke that, after the Bible, Johann Gutenberg’s second book printed was about the demise of the publishing industry.

The future of the book continues to be the subject of a great deal of debate over 500 years later. This week especially, I’ve noted quite a bit of interesting book-related news and articles. Enjoy!

Why I originally self-published my now traditionally published book — Author and playwright Hillary DePiano offers a fascinating and thorough history explaining why she made the jump from successful self-publisher to signing a traditional book deal. Later posts explain what she sees as the disadvantages of self-publishing: Piracy copyright and having to be the bad guy, being your own publisher is a lot of work, and a third yet to be posted.

What about the content? — Almost as though it was planned, this week brought news of one successful “traditional” writer turning down a  publishing deal to self-publish, while a highly successful self-publishing writer announced she was negotiating a “traditional” book deal. Writer Lee Goldberg posts an insightful comment on his site, noting that in much of the discussion about self-publishing vs. traditional publishing, very little is said about the quality of the work. Also worth checking out Lee’s other related posts: Eisler & Hocking and A Peek in Barry’s Brain.

Google Books Settlement rejected — Finally, one of the bigger news items this week was Judge Chin’s rejection of the proposed class action settlement between authors and the tech giant. Publishers Weekly, the Copyright Alliance, and Ars Technica report on the story. Glenn Lammi at the Washington Legal Foundation looks at the Class Action Do’s and Don’ts from the ruling. And MusicTechPolicy’s Chris Castle says, “Score round 1 for the authors.”

And now, some non-book related items:

The Problems With the Fifth Fair Use Factor — Jonathan Bailey at PlagiarismToday takes a look at the role of good faith (i.e., “does the judge like you”) in a couple recent fair use decisions.

Do bad things happen when works fall into the public domain? — The 1709 Blog shares notes from a recent talk by Professor Paul J. Heald, who presented his research on usage of public domain works compared to usage of copyrighted works. Surprisingly, he finds no significant difference between price and availability. See Heald’s publications here.

Island Def Jam opens up their catalogue to the world of apps — IP Osgoode reports on the joining of forces between Island Def Jam, a division of Universal Music Group, and music app developer the EchoNest. App developers will now have access to Island’s entire catalog. Says Jon Vanhala, SVP of digital and business development at Island, “this view that labels are these big companies just clutching onto their rights and not thinking about innovation is just so not true.”

The MP3: A history of innovation and betrayal — NPR’s story of the development of the popular audio file format.

ICE Seizures Criticism: Magic Words

posted March 21, 2011 by .

The seizure of around 100 domain names over the past eight months by the US Immigration and Customs Enforcement agency (ICE) continues to draw discussion.

Silicon Valley Representative Zoe Lofgren has recently voiced her criticisms of the domain name seizures to Intellectual Property Enforcement Coordinator Victoria Espinel. Additional criticisms come from attorney and Sites and Blogs writer David Makarewicz, who last week wrote five reasons why the domain name seizures are unconstitutional. Chris Greenwood, of the Phoenix Independent Examiner, compares the arrest of Bryan McCarthy — one of the first individuals arrested in connection with Operation in Our Sites — to Muammar Gaddafi’s brutal crackdown on his own people.

Hyperbole aside, criticisms of the seizures often center around the use of certain magic words: “due process” and “prior restraint”.

In an interview with Ars Technica, Rep. Lofgren says without further detail, “[ICE’s] effort to essentially seize — I think illegally — these domain names lacks due process.” Later, responding to an RIAA letter that addressed her First Amendment concerns regarding the seizures, she said bluntly, “This is prior restraint of speech, and you can’t do that in America.”

I’ve previously explored the constitutional issues surrounding both the domain name seizures and the related Combating Online Infringement and Counterfeits Act (COICA) here. 1See COICA: Due Process, COICA: First Amendment, Feds Seize Domain Names, Domain Name Seizures Warrant and Probable Cause, and Domain Name Seizures Don’t Violate First Amendment. In addition, noted First Amendment scholar Floyd Abrams has done a much better job than me addressing the First Amendment issues surrounding COICA, concluding that it doesn’t run afoul of the Constitution.

Nevertheless, criticisms seem to return again and again to the same charges — No due process! Prior restraint! — as though repeating these words enough will magically make domain name seizures unconstitutional.

But it won’t. Let’s see why.

Fourth Amendment

When discussing these domain name seizures, it’s always helpful to remind ourselves that “seizure” and “forfeiture” are two distinct events. 2See, e.g., Marine Midland Bank v. US, 11 F.3d 1119, 1124 (2nd Cir. 1993). Seizure is the initial taking of property into the government’s custody to establish jurisdiction for a civil in rem proceeding. 3The Brig Ann, 13 US 289, 291 (1815), “In order to institute and perfect proceedings in rem, it is necessary that the thing should be actually or constructively within the reach of the Court. It is actually within its possession when it is submitted to the process of the Court; it is constructively so, when, by a seizure, it is held to ascertain and enforce a right or forfeiture which can alone be decided by a judicial decree in rem.” Forfeiture is the final deprivation of the property without compensation. I think there’s little doubt that, assuming all aspects of the proceedings leading to a forfeiture are constitutional, the forfeiture of domain names are very much constitutional. 4Though forfeitures are subject to the Eighth Amendment: US v. Bajakajian, 524 US 321 (1998).

So what does the constitution require for an initial seizure of property? The Fourth Amendment says, quite clearly, that seizures must be “reasonable,” and must be accompanied by warrants issued “upon probable cause” and “particularly describing” the “things to be seized.”

Simple enough. You can see the warrant and affidavit for the first round of domain name seizures yourself. Probable cause? Check. Particular description of things to be seized? Check.

That would end our constitutional inquiry if the Fourth Amendment provided the full measure of due process required in property seizures. But according to the Supreme Court, it doesn’t. “Though the Fourth Amendment places limits on the Government’s power to seize property for purposes of forfeiture,” said the Court in 1993,  “it does not provide the sole measure of constitutional protection that must be afforded property owners in forfeiture proceedings.” 5James Daniel Good Real Property, 510 US 43. [Emphasis added]. Seizures must still satisfy the due process requirements written into the Fifth Amendment.

Fifth Amendment

The Fifth Amendment, of course, provides that “No person … shall be deprived of life, liberty, or property, without due process of law.”

At a very basic level, due process means that government must act in accordance with law, as opposed to acting according to its whims. It also requires minimum levels of regularity and fairness in the procedures used by government. 6See Peter Strauss, Due Process, Legal Information Institute. Even more basically, due process requires notice and a hearing before a final deprivation of life, liberty, or property.

The general process for a criminal trial should be familiar to most of us: an alleged offender is arrested (a seizure of a person), charges are filed, a trial is held, and a verdict is given. Process for a civil in rem forfeiture is much the same: property is seized, a complaint is filed, a trial is held, and a verdict is given. Like other civil proceedings, if no one shows up to defend the property, a default judgment is given.

Some critics have gone so far as to claim that the forfeiture process here lacks notice and a hearing. That’s simply untrue. The forfeiture complaint for the first group of domain names seized is available online for anyone to see for themself. No claimants have felt the need to contest these forfeitures, so the government is currently requesting a default judgement.

Notice of each of these seizures were sent to whatever name and address was used to register the domain name, as well as being posted on forfeiture.gov. Never mind the giant banners plastered on the web sites whose domain names were seized. If you woke up one day and saw that instead of your own web site, I think it’s fair to say that you would be put on notice that something was up.

The more realistic criticism is a far narrower one: do these seizures require that the hearing occurs before the domain name is seized. This is the criticism that Makarewicz raises. He states, “This right to prior notice and hearing is not a minor legal technicality.  It is an indispensible aspect of due process.  It is the only way an individual can protect himself from the Government arbitrarily or mistakenly depriving him of property before it happens.” He goes on to correctly point out that, despite this indispensable aspect, “Over the years, the courts have carved out certain limited exceptions to the pre-deprivation notice and hearing requirement.”

Makarewicz concludes that these exceptions aren’t present here; the seizures aren’t exempted from the requirement to provide a hearing before they occur. I disagree.

Keep in mind, though the seizure of domain names themselves is relatively recent, seizing property in general is old as dirt — asset forfeiture is typically traced to Biblical times, and one of the first laws passed by Congress in 1789 provided for it. 7See In Depth: A History of Asset Forfeiture, Las Vegas Review-Journal, April 1, 2001, for a brief timeline. The particular federal forfeiture statutes at issue here are decades old.

And it’s not like they are little-used, obscure laws. Asset forfeiture has been a primary tool in the drug war since the 1980’s, for example. So it would be considerably surprising if constitutional objections to the laws haven’t been heard by courts.

But they have. The question of whether the statutes used to seize these domain names requires a pre-seizure hearing has been answered. In US v. E-Gold, the District Court of DC held that “the circumstances giving rise to the seizure of assets upon probable cause that the assets were used in violation of specified criminal statutes meets the ‘extraordinary circumstances’ three-part test for seizure without a predeprivation hearing.” 8521 F.3d 411, 417 (2008). The Western District Court of Kentucky also acknowledged that exceptions to a predeprivation hearing “apply in civil forfeiture actions” under § 983. 9US v. Content of Accounts, 3:10-CV-228-H, June 21, 2010. In US v. Bajakajian, the Supreme Court itself heard an Eighth Amendment challenge to a federal forfeiture action, one that occurred without a predeprivation hearing, lending further credence to the lawfulness of the process involved under these laws.

Bottom line, case law from the lowest courts to the Supreme Court over a period of decades fully supports the notion that these seizures comply with due process.

Won’t Somebody Think of the First Amendment?

Due process claims against a decades old law that has been thoroughly tested in courts don’t convince me, but critics of the domain name seizures have another magic word to rely on: prior restraint.

As I point out in Copyright and Censorship, a claim that the First Amendment is being violated is powerful; who wants to say they’re against free speech?

And among First Amendment claims, the most powerful charge is that a certain action amounts to a “prior restraint.” Since the birth of the concept of freedom of speech, it has widely been accepted that a prior restraint on speech is far worse than subsequent punishment of speech. 10See, e.g., Nebraska Press Assn v. Stuart, 427 US 539 (1976), “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights”; Balboa Island Village Inn v. Lemen, 156 P.3d 339, 323-32 (Cali S.Ct. 2007), discusses at length the history and doctrine of prior restraints.

For that very reason, prior restraint is very powerful as a magic word. So much so that the Supreme Court has addressed the need for caution. “The phrase “prior restraint” is not a self-wielding sword,” it said in Kingsley Books v. Brown. “Nor can it serve as a talismanic test.” 11354 US 436, 441 (1957).

Critics often rely on a string of cases where the seizure of large quantities of expressive materials without a prior judicial determination that they were not protected by the First Amendment was found to be a prior restraint. 12Notably Marcus v. Search Warrant of Kansas City, Mo., Property, 367 U. S. 717 (1961); Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); Quantity of Copies of Books v. Kansas, 378 U. S. 205 (1964); Roaden v. Kentucky, 413 U. S. 496 (1973), and Fort Wayne Books, Inc. v. Indiana, 489 U. S. 46 (1989). But the key distinction is that it is only the property interest in a domain name that is being seized here, not the content of the web site itself or the servers that the content resides on. A domain name is not like 1,715 books (what was seized in Quantity of Copies of Books v. Kansas) no matter how you spin it. Saying that seizing the domain name is kind of like seizing the content is like saying someone is “kind of pregnant.”

What’s more, those cases all involved obscenity. 13Alexander v. US, 509 US 544, 551 (1993). Whether a specific work is obscene or not is a legal determination, one that cannot be made by law enforcement officials, which is why courts have called for stronger procedural safeguards when obscene materials are seized. Factual, objective determinations, however, can be made by law enforcement officials. Thus, these procedural safeguards are not needed when items are seized for violating child pornography laws; law enforcement officials don’t need a judge to determine that something depicts a minor engaged in explicit sexual conduct. 14US v. Kimbrough, 69 F.3d 723 (5th Cir. 1995).

Copyright infringement — especially the consumptive infringement at issue here rather than creative infringement where questions of fair use or substantial similarity can be raised — is similarly an objective question. Law enforcement officials, with the aid of copyright holders, can tell for themselves that yes, this web site is distributing Toy Story 3, and no, they do not have permission.

Seizures of infringing materials bear out the fact that stronger procedural guarantees are not applicable in the copyright context. The argument that the obscenity seizure cases apply was explicitly rejected in Jondora Music Publishing v. Melody Recordings. 15362 F.Supp. 494, 500 (D. NJ 1973), seizure without prior adversary hearing didn’t violate defendant’s First or Fifth Amendment rights. In US v. Bodin, the defendant’s First Amendment argument against seizure was dismissed even more explicitly and summarily, with the court stating, “We do not find any denial of freedom of expression to the ‘tape pirate.'” 16375 F.Supp. 1265, 1267 (WD. Ok. 1974). You can see implicit support of this proposition too; for example, the 9th Circuit upheld the seizure of 25,000 infringing recordings in Duchess Music v. Stern pending a hearing on the merits. 17458 F.2d 1305 (1972).

Finally, the Supreme Court itself has eluded to the constitutionality of restraining the distribution of infringing materials prior to an adversarial hearing when it said, “The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.” 18New York Times v. US, 403 US 713, J. White, concurrence, n.1 (1971).

Domain name seizures are not prior restraints in any sense of the word. They aren’t made based on the content of any expression. They do not remove any expression from circulation. And they don’t bar any future expression from either the web site owner or its users.

This conclusion is buttressed by the Supreme Court’s holding in Arcara v. Cloud Books, which upheld the closure of a bookstore under a general nuisance statute for its role as a place of prostitution and lewdness. Said the court:

The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited — indeed, the imposition of the closure order has nothing to do with any expressive conduct at all. 19478 US 697, n.2 (1986).

In Alexander v. US, the Court applied the same reasoning to uphold a forfeiture of a number of bookstores based on defendant’s conviction under RICO for obscenity violations, despite the defendant citing to the same string of obscenity cases previously discussed. Chief Justice Rehnquist noted that the forfeiture

[D]oes not forbid petitioner to engage in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities. It only deprives him of specific assets that were found to be related to his previous racketeering violations. Assuming, of course, that he has sufficient untainted assets to open new stores, restock his inventory, and hire staff, petitioner can go back into the adult entertainment business tomorrow, and sell as many sexually explicit magazines and videotapes as he likes, without any risk of being held in contempt for violating a court order. Unlike the injunctions in Near, Keefe, and Vance, the forfeiture order in this case imposes no legal impediment to—no prior restraint on—petitioner’s ability to engage in any expressive activity he chooses. He is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials … 20509 US 544, 550-51 (1993).

While not a prior restraint on expression, domain name seizures do have an impact on noninfringing expression on web sites — blog posts, message boards, etc. However, this impact does not impinge on First Amendment protections.

As Floyd Abrams concludes, these domain name seizures are not unconstitutionally broad. Further support for this conclusion comes from courts upholding injunctions that applied to both infringing and noninfringing aspects of a defendant’s product or service. The court in A&M Records v. Napster put it this way: “Courts will not sustain a First Amendment challenge where the defendant entraps itself in an ‘all-or-nothing predicament.'” 21114 F. Supp.2d 896, 922-23 (ND Cali 2000), citing Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394 (9th Cir. 1997).

Conclusion

David Makarewicz questions the government’s interest in protecting its citizens’ copyrights, saying “preventing copyright infringement is not an important enough public goal to justify seizure without prior notice or hearing.” But the question of the government’s interest in stopping piracy is not some sort of abstract, philosophical inquiry.

Securing creators’ copyrights is one of Congress’s powers. Even if one ignores all the evidence about the economic harms of piracy, and the irreparable harm it causes to creators’ own free speech rights and the chilling effect it has on future expression, the fact remains that of the handful of enumerated powers given to the Legislative branch by the Framers of the Constitution, promoting the progress of the arts by securing creators’ exclusive rights is one of them. And since 1790, copyright laws have been in place to advance this goal.

As the 10th Circuit noted recently,  “Copyright serves to advance both the economic and expressive interests of American authors. In addition to creating economic incentives that further expression, copyright also serves authors’ First Amendment interests.” 22Golan v. Holder, 609 F.3d 1076, 1084 (10th Cir. 2010). These interests, and the challenges of enforcing them online, have led to these domain name seizures.

The criticisms of the seizures are essentially disagreements over policy dressed up as constitutional concerns — much like the disagreement over extending term limits in Eldred v. Ashcroft. There, Justice Ginsburg noted that “Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms.” The same is true here; critics don’t like the domain name seizures or COICA and have brought the Constitution into play to add rhetorical heft to their disagreements.

I personally think domain name seizures, especially if combined with a COICA-type law that encourages other companies within the internet ecosystem to take reasonable measures to ensure their services aren’t used to harm creators, are a valuable tool for minimizing the harms of piracy. Questioning this policy is fair, but painting these actions as violating the constitution, and repeating the same magic words instead of providing real arguments — while providing no alternative solutions in their place — only detracts from the debate.

References   [ + ]

1. ↑ See COICA: Due Process, COICA: First Amendment, Feds Seize Domain Names, Domain Name Seizures Warrant and Probable Cause, and Domain Name Seizures Don’t Violate First Amendment.
2. ↑ See, e.g., Marine Midland Bank v. US, 11 F.3d 1119, 1124 (2nd Cir. 1993).
3. ↑ The Brig Ann, 13 US 289, 291 (1815), “In order to institute and perfect proceedings in rem, it is necessary that the thing should be actually or constructively within the reach of the Court. It is actually within its possession when it is submitted to the process of the Court; it is constructively so, when, by a seizure, it is held to ascertain and enforce a right or forfeiture which can alone be decided by a judicial decree in rem.”
4. ↑ Though forfeitures are subject to the Eighth Amendment: US v. Bajakajian, 524 US 321 (1998).
5. ↑ James Daniel Good Real Property, 510 US 43.
6. ↑ See Peter Strauss, Due Process, Legal Information Institute.
7. ↑ See In Depth: A History of Asset Forfeiture, Las Vegas Review-Journal, April 1, 2001, for a brief timeline.
8. ↑ 521 F.3d 411, 417 (2008).
9. ↑ US v. Content of Accounts, 3:10-CV-228-H, June 21, 2010.
10. ↑ See, e.g., Nebraska Press Assn v. Stuart, 427 US 539 (1976), “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights”; Balboa Island Village Inn v. Lemen, 156 P.3d 339, 323-32 (Cali S.Ct. 2007), discusses at length the history and doctrine of prior restraints.
11. ↑ 354 US 436, 441 (1957).
12. ↑ Notably Marcus v. Search Warrant of Kansas City, Mo., Property, 367 U. S. 717 (1961); Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); Quantity of Copies of Books v. Kansas, 378 U. S. 205 (1964); Roaden v. Kentucky, 413 U. S. 496 (1973), and Fort Wayne Books, Inc. v. Indiana, 489 U. S. 46 (1989).
13. ↑ Alexander v. US, 509 US 544, 551 (1993).
14. ↑ US v. Kimbrough, 69 F.3d 723 (5th Cir. 1995).
15. ↑ 362 F.Supp. 494, 500 (D. NJ 1973), seizure without prior adversary hearing didn’t violate defendant’s First or Fifth Amendment rights.
16. ↑ 375 F.Supp. 1265, 1267 (WD. Ok. 1974).
17. ↑ 458 F.2d 1305 (1972).
18. ↑ New York Times v. US, 403 US 713, J. White, concurrence, n.1 (1971).
19. ↑ 478 US 697, n.2 (1986).
20. ↑ 509 US 544, 550-51 (1993).
21. ↑ 114 F. Supp.2d 896, 922-23 (ND Cali 2000), citing Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394 (9th Cir. 1997).
22. ↑ Golan v. Holder, 609 F.3d 1076, 1084 (10th Cir. 2010).

Friday’s Endnotes – 03/18/11

posted March 18, 2011 by .

Reports this week — The US Intellectual Property Enforcement Coordinator’s White Paper on Legislative Recommendations to Congress was released this week, as well as ICE and CBP’s 2010 report on counterfeit seizures.

Is Netflix building a ‘House of Cards’ in original programming? — The LA Times Blog reports on Netflix’s efforts to produce original content. Game changer? Meanwhile, The Onion reports that the company is also switching over to “convenient new physical locations.”

How to Become an Internet Music Sensation — Speaking of The Onion, this is too good to pass up. Tip #1: “Take advice from your video’s helpful YouTube comments section.”

Stanford Encyclopedia of Philosophy: Intellectual Property — The Stanford Encyclopedia of Philosophy is an excellent online resource if you like thinking and whatnot. A new entry on IP has just been added this past week.

Kluwer Copyright Blog — International publisher Wolters Kluwer has recently launched this new blog focusing on European copyright issues, written by a group of legal experts and practitioners.

Dust-Up: How big a risk does piracy pose to the entertainment industry — As far as debates over piracy go, nothing particularly new here. Just very well-written arguments on both sides. Of course, one side is wrong, but the writing is still good.

Cry Baby: The Pedal That Rocks The World — If you’re into rock and roll and the gear that drives the sound, check this out. The hour-long documentary presents a fun and engaging look at the history of the wah wah pedal, featuring “interviews with Brad Plunkett, the inventor of the pedal, plus many other musical luminaries such as Ben Fong-Torres, Eddie Van Halen, Slash, Buddy Guy, Art Thompson, Eddie Kramer, Kirk Hammett, Dweezil Zappa, and Jim Dunlop.”

Copyright and Buggy Whips

posted March 14, 2011 by .

A familiar trope of copyright critics is that those involved in creating content — whether record labels, movie studios, or book publishers — are stuck in the past. The challenges facing these industries stem from their refusal to embrace innovation.

The tech industry is especially fond of this trope and seem to have settled on the “buggy whip” as their analogy of choice. A notable example is last August’s statement by Gary Shapiro, president of the Consumer Electronics Association, who said, “Rather than adapt to the digital marketplace, NAB [National Association of Broadcasters] and RIAA act like buggy-whip industries that refuse to innovate and seek to impose penalties on those that do.”

On its face, this claim doesn’t hold up.

As pointed out on Copyright Alliance last week, “the motion picture studios and other members of the creative community are licensing new technology models daily and have embraced an evolving technological landscape to create legal and innovative products and markets.” We have a wealth of different ways to experience content nowadays. The MPAA and RIAA both have pages listing just dozens of legal and convenient examples.

It’s true that people are changing the way they access and consume content, but the transition is gradual and ongoing. Traditional forms of consumptions — terrestrial radio, cable TV, CDs, for example — still make up the majority of how media is experienced. 1Glenn Peoples, Paper Sheds New Light on Music Listening Habits, Billboard, Nov. 3, 2009; Americans Watching More TV Than Ever; Web and Mobile Video up Too, Nielsen Wire, May 20, 2009.  It doesn’t make sense to rush in gutting existing business models for unproven models, models that don’t yet sustain the production of the type of content people love.

In addition, many of the oft-touted suggestions for how the media industries should be adapting have yet to produce substantial returns. According to NPD analyst Russ Crupnick, the past 10 years has seen greater “ubiquity, disaggregation, fragmentation, liberal licensed, disabled DRM, and disinflation” but less growth in music buyers.

Content Industries are not Buggy-whip Makers

On a deeper level, this claim make even less sense.

The buggy-whip analogy comes from an article written by a Harvard Business School professor in the 1960s. 2Randall Stross, Failing Like a Buggy Whip Maker? Better Check Your Simile, New York Times, Jan. 9, 2010. It describes a business that refuses to adapt in the face of technological innovation. When automobiles replaced horse-drawn carriages, buggy-whip manufacturers either had to change their business models or risk obsolescence.

How are content industries like buggy-whip manufacturers? It’s not like they are making something no one wants. People haven’t switched entirely to new forms of entertainment; people haven’t to a large extent embraced alternatives to the content created by traditional industries.

Note that complaints about outdated business models are often not that the RIAA’s and MPAA’s make it difficult for others to create their own music or movies. The complaints largely come from those who want to get the benefits of other people’s content. Service providers and hardware manufacturers certainly recognize the value of this content, they just want more of that value for themselves.

To put it another way, if media industries are making buggy-whips, and buggy-whips are obsolete, why are people pirating buggy-whips?

Piracy is not the Automotive Industry

But even if media industries can be described as buggy-whip industries, it doesn’t follow that copyright infringement is the automobile.

Piracy is not an innovation.

I sometimes wonder if those who compare content creation to the buggy-whip industry and piracy to the automotive industry realize that piracy was around long before the internet. Prior to mp3s and torrents, the record industry faced unauthorized CD and vinyl pressing operations. When the major product of the music industry was sheet music, pirate printers hawked “wretchedly-got-up versions” of popular songs on the streets. And through the centuries, authors and publishers had to contend with reprinters and copyists. The only difference between then and now is that copying is cheaper and more diffuse — a quantitative, rather than qualitative, difference.

But no matter how cheap and easy copying gets, it’s still only copying; no new works are created through piracy.

No doubt, the way people experience media will continue to evolve. Media industries will need to continue to adapt to remain successful. But the comparison between copyright industries and metaphorical buggy-whip manufacturers is inaccurate.

References   [ + ]

1. ↑ Glenn Peoples, Paper Sheds New Light on Music Listening Habits, Billboard, Nov. 3, 2009; Americans Watching More TV Than Ever; Web and Mobile Video up Too, Nielsen Wire, May 20, 2009.
2. ↑ Randall Stross, Failing Like a Buggy Whip Maker? Better Check Your Simile, New York Times, Jan. 9, 2010.

Friday’s Endnotes – 03/11/11

posted March 11, 2011 by .

A Blogging Hiatus — Ben Sheffner has put his site, Copyrights and Campaigns, on hiatus after his recent move from NBC Universal to Content Protection Counsel at the MPAA. Since the end of 2008, Ben has brought solid, in-depth reporting and analysis on copyright issues from a reasonable, pro-copyright-owner perspective. His voice will be missed in the blogosphere.

Stuck on Rewind — The Copyright Alliance takes aim at a remark by Public Knowledge about the film industry’s supposed fear of technology. As the Alliance’s Sandra Aistars responds: “Seriously? The notion that the creative world is somehow afraid of, opposed to or otherwise unable to co-exist with a 21st Century technology world is about as up-to-date as the Betamax recorder.”

Copyright PSA for the Reel Challenge via Ray Dowd’s Copyright Litigation Blog. More from the filmmakers behind the video at http://www.yellyfishblog.blogspot.com/

[youtube]NbbdXWY6JOA[/youtube]

Golan v. Holder: Supreme Court to Review Copyrighting Works in Public Domain — Edward Lee (a former professor of mine) shares some thoughts on the case he helped bring which was recently granted cert by the Supreme Court. I wrote a brief summary of the case last week.

Are Canada’s copyright laws friendly or unfriendly towards wealth destroyers according to Prof. Geist? — Barry Sookman thoroughly examines the inconsistent and contradictory claims of law professor Michael Geist concerning litigation between the CRIA and IsoHunt. Worth a read, especially since many of Geist’s copyright claims are repeated as gospel among copyright critics.

Isaac Newton’s Shamefully Unpublished Calculus Book — I’m currently reading a book on the history of mathematics and came across this gem of an article from the mid-90s. For over a decade, we’ve heard of how computers and the internet will free artists from the evils of book publishers (or record labels, or film studios, etc). Much of the talk is hype, but sometimes, as this article demonstrates, things are just flat-out made up.

Friday’s Endnotes – 03/04/11

posted March 04, 2011 by .

I’m out of town this weekend, so today’s endnotes is a bit short. Enjoy!

The Cost of Free Music — The Arbiter Online, Boise State’s Independent Student Media, presents this well-written piece by Eva Hart (no relation) exploring the harm of illegally downloading music. Appearing less than three months after a similar student op-ed in the Harvard Crimson, it’s refreshing to see the next generation express such concerns. I had to laugh at this comment though: “How many hours does a song take to manufacture… Uh how about ZERO!” Did you know that in the time it took to write that last sentence, I was able to write 37 songs?

Conflict and Compromise: A Review of Selected Bill C-32 Position Papers — I spend a lot of time on US issues because that’s where I live, but for those interested in all things Canada, Kyle Lavender at IP Osgoode has a comprehensive collection of position papers on the Copyright Modernization Act (Bill C-32) currently making its way through the Canadian House of Commons. The bill tackles a wide spectrum of issues, unsurprisingly causing some lively debate.

Even Obscure Title Still Selling Mostly CDs and LPs — Some interesting statistics from Nielsen Soundscan. CDs still make a significant proportion of artist sales, but the percentage of digital sales goes down the more popular an artist is.

B.S. Chart of the Week: Propaganda by the Tech Industry Gets Dumber as They Get More Desperate — Record producer Moses Avalon takes on the “music biz revenue down = RIAA is evil” thought process.

How Much More Evidence

posted March 03, 2011 by .

How much evidence about the negative effects of online piracy can be ignored?

This week, the Canadian Intellectual Property Council released a report on The True Price of Peer to Peer File-Sharing. The report re-examined Don’t blame the P2P file-sharers: the impact of free music downloads on the purchase of music CDs in Canada, a 2007 report that cast doubts on the link between online piracy and music sales.

Using the same data from the 2007 report, analyst Dr. George Barker found the original conclusions to be incorrect.  Dr. Barker instead discovered:

1. three out of every four respondents said that if P2P were not available they would have purchased some or all of the music; and

2. almost two-thirds of the “hardcore” P2P downloaders (those who indicated in the survey that they acquired music by P2P only) said they would have purchased one-third of the tracks they downloaded if the songs were not available on P2P networks — this amounts to an average expense of $168 per person, adding up to hundreds of millions of dollars in extra revenue for the music industry per year from this group alone.

Based on this data, Dr. Barker concluded “that P2P downloads have strong negative effects on legitimate music purchases” and, contrary to the original analysis of the data, P2P downloading acts as a substitute for legitimate music purchases. Dr. Barker’s analysis infers that stronger copyright laws “would substantially increase music purchases and music industry sales revenues and, by implication, increase artist income and industry employment and contribute to both economic growth and higher government tax revenues in Canada.”

While it’s significant that a closer analysis of the original data reveals entirely different conclusions, this isn’t the first time the conclusions of the original report have been challenged. Noted economist Stan Liebowitz examined the original report’s conclusions when it first came out and found them “not only implausible” but actually “impossible to be true.”

Other studies independently confirm that reducing online piracy leads to increased sales. 1David Blackburn, On-line Piracy and Recorded Music Sales, Working Paper, Harvard University (2004), finding 30% reduction in files available online leads to 10% increase of industry sales in 2003; Kristina Groennings, An Analysis of the Recording Industry’s Litigation Strategy Against Direct Infringers, 7 Vanderbilt Journal of Entertainment & Technology Law 389 (2005), finding RIAA’s litigation strategy led to initial decrease in P2P filesharing and increase in album sales in 2003 and 2004 after several years of decline. Taking a broader perspective, one economic study of stock prices found that “current and past efforts by the media industry to check illegal file-sharing over P2P networks through stricter copyright laws and lawsuits against violators have a significant positive impact on expected long-term profitability and economic viability of major media firms. 2Sanjay Goel, Paul Miesing, Uday Chandra, The Impact of Illegal Peer-to-Peer File Sharing on the Media Industry, 52 California Management Review 6 (2010).

The conclusions of the CIPC report — “people buy things they like unless they can get them for free — seem obvious enough not to need studying in the first place. But despite study after study and piles of evidence that show the harmful effects of online piracy, there are those who continue to insist that piracy is not a problem. The arguments are not that this approach or that approach to diminishing piracy is unwise for whatever reason, but that the harm doesn’t even exist in the first place.

Prove It

The academic consensus is that online piracy has had a significant negative effect on music sales. I listed a number of major studies on the issue in a previous post here. Olberholzer-Gee and Strumpf provide a similar table of major academic studies on the effect of online piracy in their paper File-sharing and Copyright (Table 5). Studies since then reveal similar findings; for example, Choi and Kim found that piracy has a negative effect on online music sales in Korea in a 2010 study. 3Dongook Choi & Yeonbae Kim, Effects of Piracy and Digital Rights Management on the Online Music Market in Korea, TEMEP Discussion Paper No. 2010:72 (December 2010). While a handful of studies have argued that online piracy has no effect, or even a positive effect, on music sales — most notably an earlier study by Olberholzer-Gee and Strumpf — these studies are in the minority.

The effect of online piracy on music sales around the world is easy to see. Countries which have improved legal responses to online piracy in the past few years, like South Korea and Sweden, have seen music sales rise. In contrast, countries like Spain and Brazil, where copyright laws are lax or ineffective against digital infringement, have seen music sales fall at a rate above the global average. 4See IFPI Digital Music Report 2011 and IFPI Recording Industry in Numbers 2010.

And ineffective copyright enforcement around the world is not just a concern of major media industries. Jiarui Liu looks at the problem of piracy in emerging markets by examining the music industry in China. While it may seem that copyright enforcement in such countries is only a foreign problem, it turns out that rampant infringement has a profound effect on local artists:

In many cases, piracy of foreign works could be more devastating to domestic companies than to foreign companies. Because the competition from low-priced pirated works both online and offline undercuts stable income from royalties, Chinese musicians have witnessed the entire music industry becoming increasingly dependent on alternative revenue streams such as advertising, merchandizing, and live performance. The pressures of paid appearances and extended tours have started to squeeze the time that artists need to spend on music production. The alternative revenue streams also force many music companies to abandon traditional album contracts and operate in a way more like talent agencies that control all aspects of an artist’s career. Music companies are inclined to sign talents at a very young age with a long-term agency deal in order to exploit the full value of artists in the advertising market. In addition, the need to attract sponsorship opportunities puts more emphasis on non-musical qualities, such as a fresh appearance and healthy public image, which to some extent marginalizes “pure” musicians who have less value in those alternative markets.

Most importantly, as copyright piracy obstructs the communication of consumer preferences to musicians, an increasing number of musical works are created to accommodate the tastes of entrepreneurs (e.g., sponsors and advertisers) rather than those of average consumers, and this has caused a fundamental shift in the creative process of the Chinese music industry. Although entrepreneurs should arguably be willing to take whatever is popular among music fans as a draw to their own products, the expectations of entrepreneurs and consumers do not always meet in a dynamic market setting. For this reason, the interests of less commercial artists and new artists are more likely to be compromised. 5The Tough Reality of Copyright Piracy: A Case Study of the Music Industry in China, 27 Cardozo Arts & Entertainment Law Journal 621 (2010).

Commitment to effective intellectual property laws has ripple effects in a nation’s economy beyond the media industries. On Tuesday, attorney Lawrence J. Siskind, writing in The Recorder, asked Has Israel’s Approach to IP Law It Strong? In the article, he attributes some of Israel’s national growth over the past several decades to strengthening its approach to intellectual property. He quotes one report that says, “Israel, by 1990 was still mostly barren of technology and finance. … Israel generated few significant companies or technologies, no significant financial institutions, and little important science.” The country was known for wide-scale piracy at the time. But this changed by the turn of the new century (in part due to trade pressures from the US). “As Israel’s image morphed from IP pirate to IP protector, the country became a magnet for global investment.”

Courts, which are in the business of judging evidentiary claims, recognize the harms of online piracy. For example, the court in A&M Records v. Napster was convinced that “Napster use is likely to reduce CD purchases by college students.” Napster’s expert did not “provide credible evidence that music file-sharing on Napster stimulates more CD sales than it displaces.” Napster also tried to argue that the “sampling” of music its service provided (try-before-you-buy) stimulates retail music sales. The court was still not persuaded, calling the evidence used to support this argument “unreliable” and accepting “that the activity defendant calls sampling actually decreases retail sales of their music.” 6114 F.Supp.2d 896, 910-914 (ND Cali 2000).

Yet, some still find ways to rationalize away the conclusions revealed above.

Yes, But…

These ways include focusing a lot of attention on less-than reliable studies or distorting the literature that is out there.

As mentioned above, one of the favorite studies of the piracy-is-not-a-problem contingent is Olberholzer-Gee & Strumpf’s 2007 paper, The Effect of File Sharing on Record Sales: An Empirical Analysis. But the study looked only at a small period of time (17 weeks at the end of 2002) and uses some curious methodologies (“Our most important instrument  is the number of German secondary school kids who are on vacation in a given week”). Stan Liebowitz has been especially critical of the study, and has published several responses worth a read here, here, here, and here. But the biggest surprise comes from Olberholzer-Gee and Strumpf themselves, who backed off from their earlier claims in a 2010 paper.

Another report widely cited as evidence against the harm of piracy is the US Government Accountability Office’s April 2010 Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods. After the release of this report, many declared the debate over the effects of piracy over — most notably a number of interest groups in a full page ad that said “Content Industry Piracy Claims are Bogus.” 7Other examples include an article in Ars Technica titled “US government finally admits most piracy estimates are bogus.” But is that really what the report said?

No. Far from looking at all or even most piracy claims, the report only examined a small percentage of independent reports — and even then, it merely highlighted some of the limitations inherent in those reports. It’s most damning conclusions were aimed at only three government agency figures that have been used — an FBI estimate used in 2002, a CBP estimate also used in a 2002 memo, and an estimate used by the Motor and Equipment Manufacturers Association in 2005 attributed to the FTC. The GAO’s conclusion? It couldn’t substantiate these estimates. The broader takeaway of the GAO report reflects the consensus: piracy has significant negative effects, but it’s difficult to nail down a specific number or dollar figure on the harm caused.

A particularly telling example of distortion can be seen in an article on Torrentfreak, Pirates are the Music Industry’s Most Valuable Customers. The site draws that conclusion from an IFPI commissioned survey carried out by Jupiter Research. Torrentfreak highlights the survey’s results that, compared to music buyers, music pirates are “31% more likely to buy single tracks online, 33% more likely to buy music albums online, 100% more likely to pay for music subscription services, and 60% more likely to pay for music on mobile phone.” That sounds like a big deal until you look at the actual report. There, you’ll see that Torrentfreak played a little numbers game — the percentage of either group of participants to engage in any of these activities is small, so that even a few percentage points difference results in an impressive-sounding “more likely” figure. For example, only 2% of “music buyers” paid for a music subscription service compare to 4% of “music pirates.” Not as impressive when you put it that way.

While that kind of statistical shenanigary might be overlooked, what’s truly misleading is that if you look at the total figures provided by the report, the total music spending by “music pirates” is less than the total of “music buyers” (and every other segment surveyed).

Well What About…

Maybe there are causes besides piracy of decreasing music sales, the final argument goes.

Not so, according to Stan Liebowitz, who has examined data over the past 30 years to arrive at his conclusion. While some factors may have played some role, that role is at best secondary and at the very least only negligible. Nothing else — the general economy, shifts in consumer spending to other forms of entertainment, etc. — has caused as big an impact as the advent of online piracy. The data doesn’t support the idea, and neither do economic theories. 8Liebowitz’s own site summarizes his research in file-sharing and links to his papers on the subject.

Is it possible that piracy has positive benefits? The GAO report considered this question, as have several other studies. Maybe network effects increase the value of copyrighted works. Maybe the “sampling” of digital files that file-sharing allows lead to more purchases.

Again, the consensus among researchers is that any possible positive benefits of piracy are far outweighed by the negative effects. 9Note that these questions of “benefits” are mostly limited to economic benefits. Not addressed in this discussion are the equally, if not more, important personal considerations of creators: their free speech interests and the chilling effect of piracy, to name just two. Going back to Liebowitz, “sampling” is more likely to decrease sales rather than increase them. This seems like common sense if you think about it: if you can “sample” an entire work, over and over again, whenever and wherever you want, why would you ever buy it? Never mind that if piracy’s positive benefits were greater than the negative effects, we wouldn’t be having this debate, since creators and media industries would be doing better rather than worse after a decade of file-sharing.

Most creators don’t need to be convinced that piracy is a problem — the real question is how best to deal with it, whether that involves legal, technological, or business model solutions (or, most likely, some combination of the three). But despite all the evidence about the harms of online piracy, there will still be those who keep believing it is not harming creators and the media industries that invest in them. New research and studies will continue to be ignored or distorted. Alternative theories about piracy will be made that may sound nice, but without evidence to substantiate them, they are mere speculation.

References   [ + ]

1. ↑ David Blackburn, On-line Piracy and Recorded Music Sales, Working Paper, Harvard University (2004), finding 30% reduction in files available online leads to 10% increase of industry sales in 2003; Kristina Groennings, An Analysis of the Recording Industry’s Litigation Strategy Against Direct Infringers, 7 Vanderbilt Journal of Entertainment & Technology Law 389 (2005), finding RIAA’s litigation strategy led to initial decrease in P2P filesharing and increase in album sales in 2003 and 2004 after several years of decline.
2. ↑ Sanjay Goel, Paul Miesing, Uday Chandra, The Impact of Illegal Peer-to-Peer File Sharing on the Media Industry, 52 California Management Review 6 (2010).
3. ↑ Dongook Choi & Yeonbae Kim, Effects of Piracy and Digital Rights Management on the Online Music Market in Korea, TEMEP Discussion Paper No. 2010:72 (December 2010).
4. ↑ See IFPI Digital Music Report 2011 and IFPI Recording Industry in Numbers 2010.
5. ↑ The Tough Reality of Copyright Piracy: A Case Study of the Music Industry in China, 27 Cardozo Arts & Entertainment Law Journal 621 (2010).
6. ↑ 114 F.Supp.2d 896, 910-914 (ND Cali 2000).
7. ↑ Other examples include an article in Ars Technica titled “US government finally admits most piracy estimates are bogus.”
8. ↑ Liebowitz’s own site summarizes his research in file-sharing and links to his papers on the subject.
9. ↑ Note that these questions of “benefits” are mostly limited to economic benefits. Not addressed in this discussion are the equally, if not more, important personal considerations of creators: their free speech interests and the chilling effect of piracy, to name just two.

.torrent = .crime

posted March 01, 2011 by .

I sometimes see the phrase “.torrent = .crime” used online in discussions about enforcing copyright online. It is considered by copyright critics as a dig against efforts to enforce the widespread copyright infringement occurring within the bittorrent ecosystem 1The bittorrent “ecosystem” describes the multitude of independent components — from torrent file hosts, to torrent search engines and meta search engines, to trackers — that together make the bittorrent protocol work. — the idea being that content producers have mistakenly declared torrent technology categorically unlawful.

Most recently, it has popped up in response to the US government’s seizure of domain names as part of Operation in Our Sites. A number of the sites targeted were part of the bittorrent ecosystem, like meta-search engine Torrent Finder. And with the pending appeal of Isohunt in the Ninth Circuit, the meme will likely persist — the torrent search engine’s appellate brief devotes considerable space to rebutting the association between torrents and infringement. Proponents of the meme believe the association is unfair and are quick to point out the many legitimate uses of the bittorrent protocol as evidence.

The snappy soundbite, however, glosses over the distinction between a technology and uses of a technology. It also relies on a fundamentally flawed premise: the fact that there are some legitimate uses of a technology does not make all uses of that technology legitimate. And within the general bittorrent ecosystem, there are a lot of illegitimate uses of the technology — so much so that the association between “torrent” and “crime” is not entirely unfair.

The Supreme Court, through its decisions in Sony Corp of America v. Universal City Studios, 464 US 417, and MGM v. Grokster, 545 US 913, maintained what is really a common sense distinction between technology and uses of that technology. Simply put, you can’t be liable simply for making something that can be used for copyright infringement, but you can be liable if you intend or encourage infringing uses.

Put another way, while direct infringement is a strict liability tort, meaning the intent of an infringer is irrelevant, secondary liability requires some form of culpability. Grokster reads Sony as saying you can’t impute this intent based solely on the characteristics of a device. But the rule in Sony doesn’t mean a manufacturer or service is completely precluded from liability if it satisfies the Sony safe harbor — a manufacturer or service provider can still be liable if it is found to be culpable in other ways, including whether it induced infringement.

The Supreme Court in Grokster noted three features of the evidence of intent that most showed culpability. Satisfying a known source of demand for copyright infringement, no attempt to filter or develop mechanisms for diminishing infringing activities, and selling advertising based on high-volume use — revenues increase the more people use it, and the overwhelming amount of people use it for infringing purposes. Any one of these alone is not enough to show culpability, but taken together, the intent to encourage infringement is, in the words of the Court, “unmistakeable.”

The torrent ecosystem facilitates piracy — not by design, but by use.

I’m talking about just the torrent ecosystem here — the trackers, hosts, and search engines that do little if anything to ensure their services are not used to aid in distributing unauthorized content. BitTorrent as a protocol is in no way a problem. Facebook, Twitter, and other large-scale systems use the BitTorrent protocol to distribute software updates to their servers; the same is true of gaming companies like Blizzard Entertainment, makers of Worlds of Warcraft. Many Linux distros are promulgated via bittorrent. The technology offers several advantages over other methods of distributing large amounts of data.

But outside these specific uses is a world of public torrent hosts that allow anyone to upload torrent files of any type of content, no questions asked, and search engines that can help users locate whatever they want. And it is here where, any way you look at it, “.torrent” actually does equal “.crime”. The overwhelming majority of what is being distributed in the general bittorrent ecosystem is infringing.

How overwhelming? According to the available research, anywhere from 90-99% of files available in the torrent ecosystem are infringing. 2Robert Layton & Paul Watters, Investigation into the extent of infringing content on BitTorrent networks, Internet Commerce Security Laboratory (2010), confirms 89% of all torrents in sample infringing; Sauhard Sahi & Ed Felten, Census of files available via BitTorrent, (2010), concluded 99% of files likely infringing; Columbia Pictures v. Fung, Order granting Plaintiffs’ motion for summary judgment on liability (2009), evidence showed approximately 95% of files available on defendant’s torrent search engines infringing. A study released January 2011 discovered only 1 legitimately offered file in the top 10,000 torrents offered by one of the largest public bittorrent trackers.

In the face of such overwhelming infringement, it’s absurd to think you can design a site or service that facilitates access to this universe of material, without any attempt at filtering or mitigating infringement, and escape liability. The fact that there are some legitimate uses for the technology does not mean that all uses of the technology are legitimate. Search engines, trackers, and torrent hosts exist for verified and authorized content. But that fact doesn’t save the general and open-for-all torrent sites; neither does the fact that the protocol is used by large-scale systems for distributing software updates. It’s not like Facebook and Twitter are going to Torrent Finder to find new patches.

The distinction between legitimate and illegitimate uses of bittorrent is a distinction between services where the use of the protocol is secondary to the service and the ability to pirate through the service is diminished and minimized, and services that tap into the general bittorrent ecosystem. The latter services may claim to have legitimate uses, but these claims are drowned out by the evidence.

The business model of these sites depends on popular — ie, copyrighted — content. It’s the major draw: Torrent Finder wasn’t making $15,000 a year advertising to people looking for the latest Linux distros or searching for unsigned bands. Isohunt’s Gary Fung admitted as much during the course of that litigation. 3Columbia Pictures v. Fung, p. 34. Courts looking at nearly every other major file-sharing service that has found itself subject to a lawsuit have come to the same conclusion: “While there is doubtless some demand for free Shakespeare,” said the Supreme Court in Grokster, “the evidence shows that substantive volume is a function of free access to copyrighted work.” 4545 US at 926.

Sites that have gone legit have discovered just how true this is. Search engine YouTorrent reported that it lost over half its traffic when it stopped indexing files from sites like PirateBay and only returned verified authorized and open-license results.

Some torrent site operators have adopted a “would if they could” attitude toward copyright infringement: they’d like to stop it, but it’s impossible to know what files are authorized and which are not. This argument doesn’t hold up against the significant percentage of infringing files available.

Some theories of secondary liability, like contributory infringement, require that the secondary party has some knowledge of the underlying misconduct, with the caveat that the secondary party cannot escape liability by being “willfully blind.” You can’t, like an ostrich with his head in the sand, deliberately ignore bad behavior and expect to stay out of trouble. While the question of willful blindness can often be a tough one to answer, courts haven’t had trouble in cases of file-sharing services. With such a high percentage of infringing files present on all these services — 89%, 95%, 99% — you can’t claim ignorance of infringement.

Anyone who bristles at the association of bittorrent with copyright infringement has to admit, if honest, that within the general bittorrent ecosystem, torrents have largely become synonymous with distributing unauthorized content. The technology itself is neutral, it can be put to legitimate or illegitimate uses, but any service wanting to become a component part of the unregulated, open, and public torrent universe has a high burden for establishing legitimacy.

 

References   [ + ]

1. ↑ The bittorrent “ecosystem” describes the multitude of independent components — from torrent file hosts, to torrent search engines and meta search engines, to trackers — that together make the bittorrent protocol work.
2. ↑ Robert Layton & Paul Watters, Investigation into the extent of infringing content on BitTorrent networks, Internet Commerce Security Laboratory (2010), confirms 89% of all torrents in sample infringing; Sauhard Sahi & Ed Felten, Census of files available via BitTorrent, (2010), concluded 99% of files likely infringing; Columbia Pictures v. Fung, Order granting Plaintiffs’ motion for summary judgment on liability (2009), evidence showed approximately 95% of files available on defendant’s torrent search engines infringing.
3. ↑ Columbia Pictures v. Fung, p. 34.
4. ↑ 545 US at 926.