There is no denying that piracy is
illegal. There is also no denying the fact that digital piracy is commonplace
in this day and age. As current laws and provisions fail to stop intellectual
property theft and copyright infringement, how will the authorities further
respond?
At the crack of dawn, four heavily armed
agents drop onto the rooftop of a mansion in a picturesque New Zealand
landscape. At the same time, armed agents and dog handlers breach the premises
and storm the compound, eventually reaching a panic room where their target is
hiding. The entire effort is coordinated by the American Federal Bureau of
Investigations, a government agency belonging to the United States Department
of Justice.
Who were they after? An international
terrorist? A deranged cult leader? A drug cartel linchpin? The object of the
operation was a man named Kim Dotcom. Born Kim Schmitz in Germany and known by
different monikers including Kimble and Kim Tim Jim Vestor, Kim Dotcom is an
internet entrepreneur and tycoon, also famed founder of the website
Megaupload.com.
Dotcom is no saint. He has a long rap-sheet,
which kicked off with stealing and trafficking calling card numbers as a kid.
He moved on to embezzlement and insider trading later on, all crimes already
paid for in one way or another. His antics have led him to seek refuge in
Thailand and Hong Kong on previous occasions before finally taking up residency
in New Zealand.
Megaupload.com was once the 13th most
visited URL on the Internet, with a user base of 180 million. Dotcom says that
it is a legal online file-locker and content viewing website. The United States
Department of Justice claims that the site is an intended and deliberate
vehicle for copyright infringement. As such, the FBI is charging Dotcom with
criminal copyright infringement and costing the entertainment industry $500
million, charges that he denies.
Dotcom describes the company as follows:
“Megaupload is a provider of cloud storage services. The company’s primary
website, Megaupload.com, offered a popular Internet-based storage platform for
customers, who ranged from large businesses to individuals. This storage
platform allowed its users to store files in the Internet ‘cloud’ and to use,
if needed, online storage space and bandwidth.”
In other words, Megaupload allowed users to
upload data, information and files which could be downloaded later. However,
online file locker services can also be used for the distribution and
dissemination of copyrighted material. For example, a song could be uploaded to
the cloud, and then downloaded by others without payment to the song’s intellectual
property owners; essentially piracy.
Megaupload was taken down and Kim Dotcom
arrested in early 2012. His assets, about $17 million, were frozen. Declared a
flight risk, he was remanded in Mount Eden prison without bail. About a month
passed before he was able to overturn previous rulings and was released on
bail.
As the case proceeded, New Zealand courts
discovered that the New Zealand Government Communications Security Bureau had
illegally spied on Dotcom, helping the police to ascertain his location and
monitor his communications prior to the raid. During the raid itself, hard
drives belonging to Kim Dotcom were seized, cloned and the data was sent back
to the US, which breaches extradition legislation. The initial search warrants
used to conduct the raid have also been declared invalid and “too broad” by the
New Zealand High Court.
Whether Megaupload is a legal vehicle or a
pirate website is a matter for the courts to eventually decide. However, the
question arises: Are such harsh measures, following shock-and awe procedures
more in line with actions taken against individuals posing a threat to national
security, merited for someone who is an alleged pirate? Did the civil and human
liberties of Kim Dotcom have to be violated in order to get him into custody?
But more importantly, what precedent does it set for the manner in which future
copyright infringers will be treated in the near future?
Whether
Megaupload is a legal vehicle or a pirate website is a matter for the courts to
eventually decide.
Accidental Pirate
The actions taken against Kim Dotcom and
Megaupload are just one example of governments cracking down on internet
piracy. While hardline action sends a public message that piracy will not be
tolerated, governments around the world also spent a large portion of the last
year devising tough legislation which they believe will tackle the problem as
well.
Content producers allege that piracy and
copyright infringement costs the industry billions of dollars and countless
jobs. The veracity of any figure is highly debatable, with numbers from almost
every side being plagued with methodological incongruences. But the impact is
significant enough for a number of companies to lobby for legislation
protecting their interests. One of the fruits of their labor was the Stop
Online Piracy Act (SOPA). Introduced by U.S. Representative Lamar S. Smith,
SOPA was a bill aiming to expand the ability of U.S. law enforcement to fight
online piracy and distribution of counterfeit goods.
The decision to lump copyright infringement
and trafficking in counterfeit goods is one that has been hotly contested.
While creating counterfeit goods can almost always be considered a deliberate
process, you can infringe copyright unknowingly.
For example, if you upload a video of
yourself in your room with a popular song playing in the background, you may be
held liable for copyright infringement since you do not own the rights to
broadcast the song in a public forum. SOPA proposed an expansion of existing
criminal laws in the U.S. to include such unauthorized streaming of copyrighted
content, which would carry a maximum penalty of five years in prison.
Furthermore, according to SOPA section 102,
the U.S. government would also have dispensation to request internet service providers
to alter their DNS servers, so that websites in foreign countries accused of
piracy would be inaccessible. The government would also have the power to order
search engines like Google to modify search results to exclude foreign websites
which host illegally copied material. Payment providers such as PayPal could
also be ordered to shut down payment accounts for accused foreign websites.
Such provisions essentially amount to censoring the internet and an
infringement upon freedom of speech – an inalienable human right set out in the
UN Universal Declaration of Human Rights.
SOPA also bypasses the “safe harbor”
protection from liability offered to websites by the Digital Millennium
Copyright Act of 1998. According to section 512 of the DMCA, online service
providers provided they meet the criteria for eligibility are protected against
claims of copyright infringement which are a result of the conduct of their
customers.
”The decision to lump copyright
infringement and trafficking in counterfeit goods is one that has been hotly
contested.”
While the DMCA system of notice-and
takedown for infringing content is not optimal, it has contributed to the
immense success of sites such as YouTube, which relies heavily on user
generated content. To put it in real terms, under SOPA, citizens of the United
States could be denied access to foreign sites such as The Pirate Bay, because
the government would have the authority to order ISPs to make the URL
inaccessible.
The worst aspect of SOPA is its retaliatory
nature. The bill addresses none of the root causes of piracy and focuses solely
on taking down instances of copyright infringement after they have occurred.
While intended to take affect only in the United States of America, it is not
hard to imagine other countries adopting similar policies if the bill had
successfully passed. The result would be stricter punishment for piracy,
liability for on-line service providers, as well as censorship of the web and
violation of freedom of speech all across the globe. A website for a website
makes the whole internet blind.
After the proposition of SOPA, many noted
online service providers; including heavy weights Google, Facebook, Tumblr and
Twitter protested against the bill. Wikipedia held a 24-hour blackout to
protest against SOPA. In the face of vehement protests from internet giants and
the common masses, supporters of SOPA postponed all further actions on the
bill.
Three Strikes and You’re banned from the
Internet
While SOPA may not have succeeded in being
passed, the treatment meted out to Kim Dotcom and Megupload, if not literally
then metaphorically, may still end up becoming the accepted response to all
accused of being involved in copyright infringement and piracy. On the global
scale, several nations proposed an international trade agreement, named Anti-
Counterfeiting Trade Agreement or ACTA.
A large number of countries including
Singapore have already signed on, with Japan being the first to ratify the
trade agreement. If five more countries follow Japan’s suit and formally agree
to the multinational treaty, ACTA will come into effect.
Like SOPA, ACTA paints counterfeit goods
trafficking and copyright infringement with the same brush. The trade agreement
necessitates all participating signatories to impose their own criminal
sanctions in the form of fines and prison sentences for those accused of
copyright piracy on a “commercial scale” and those “aiding and abetting” it.
Unfortunately neither “commercial scale” nor “aiding and abetting” have been
properly defined.
The loose wording implies that everyone from
downloaders, on-line sites and ISPs could possibly be prosecuted. According to
Knowledge Ecology International, ACTA goes beyond TRIPS, the copyright
agreements detailed in the World Trade Organization, and creates an entirely
new realm of liability for service providers on the web.
Three
Strikes and You’re banned from the Internet
With regards to the individual, ACTA is
proposing a Three Strikes Disconnection policy for people who are “serial
copyright infringers”. To put it bluntly, if you are caught downloading files
illegally on three separate occasions, ACTA can ban you from the internet. A
punishment more in line for someone who poses a national security risk through
their activities over the internet may be applied to someone who downloads a
song.
Though not passing this measure as
legislation, ACTA will strongly persuade ISPs to implement the Three Strikes
Disconnection policy for users who have been caught violating copyright laws if
the ISPs in question want to limit their own liability in the matter. To top it
all off, an ACTA committee will be established to enforce the trade agreement
which will be separate from the legal and judicial setup governments
effectively giving the individual no way to affect democratic change with
regards to ACTA.
The internet is more than just a pirate
bay
The International Telecommunications Union
(ITU), a specialized agency of the United Nations, met in Dubai in December
2012 to ponder the state of the internet. The conference approved the new
Y.2770 standard which allows for deep packet inspection in next generation
networks. This grants government access to data about user traffic statistics,
without taking into consideration most norms and policies concerning privacy of
communications.
Vinton Cerf, one of the co-founders of the
TCP/IP networking protocols which serve as a building block of the internet
spoke out against the decisions taken by the ITU.
Protection for copyright and intellectual
property is required now in the digital age more than ever before. Piracy needs
to be stopped so that the people who produce content get their due. But the
measures detailed here are emblematic of a disturbing trend where governments
try to tackle the problem of piracy and copyright infringement behind closed
doors.
The result is increased pressure on
internet service providers to police their own networks, as seen with ACTA and
SOPA, along with stronger and stricter penalties for individuals. These steps
merely deal with the symptoms of piracy without addressing the underlying
causes.
The World Wide Web sprang up as a result of
open collaboration between scientists and engineers. It has since expanded at
an exponential rate, thanks to the fact that anyone wanting to contribute can
do so by just stepping up. It has given millions a platform to be heard, at an
ease and scale unheard of in human history. The efforts of governments seem to
be the anti-thesis of this formula. They seek to limit the contribution of
individuals and on-line service providers in the name of upholding intellectual
property and copyright laws. By making the price of piracy exorbitantly high,
they seek to stifle what they deem to be illicit and illegal behavior.
The
internet is more than just a pirate bay
But if the governments of the world are serious
about combating privacy in a meaningful way, they have to seek input from ISPs,
online-service providers like Google and third party digital rights activists
like the Electronic Frontier Foundation (EFF). This would make sure that in
addition to the voices of content producers and governments, the voices of the
other actors on the internet will be heard. They need to acknowledge the fact
that the internet is used for more than just piracy, and that policies
regarding its use shouldn’t be informed only by the actions of a few.
“ACTA and SOPA merely deal with the
symptoms of piracy, without addressing the underlying causes.”
Realizing this, pioneers like Richard F.,
who founded the Pirate Party in Sweden, have made the switch to politics so
that they can influence decisions regarding digital rights. Similarly,
government and legislative institutions should extend their hands to external,
involved parties when contemplating the future of the internet. When cassettes
first came about, the entertainment industry assumed that the rise of home
recording would mean the end of a very pro table business. They had a similar
response to VCR cassettes. No surprises that the internet is being greeted with
the same gloom and doom. However, even more so than the other two technologies
during their times, the Internet seems to be a tour de force which is around to
stay. Like the entertainment industry did with cassettes and VCRs, they will
have to incorporate the internet and digital aspects of content production, creation
and distribution into their existing models, instead of just treating everyone
like a pirate.
