Price Of Piracy

5/18/2013 7:19:19 PM

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.

Price of piracy

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.

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.

Accidental Pirate

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

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

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.

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