Online Piracy, Research Paper Example

Federal law provides severe civil and criminal penalties for the unauthorized reproduction or distribution of copyrighted videotapes or DVDs. Criminal copyright infringement is investigated by the F.B.I. and may constitute a felony with a maximum penalty of five years in prison and/or a $250,000 fine. Licensed for private home exhibition only. Any public performance, copying or other use is strictly prohibited. All rights reserved.

The topic of this paper is online piracy, defined (by one authority) as follows: “Digital[1] piracy is the illegal act of copying digital goods – software, digital documents, digital audio (including music and voice) and digital video – for any reason other than backup, without explicit permission from and compensation to the copyright holder” (Gopal, Sanders, and Bhattacharjee). In 1997 and 1998, the U.S. Congress decided in the No Electronic Theft Act and the Digital Millennium Copyright Act that digital copyright infringement is essentially theft, physical-space theft akin to shoplifting, and that the sale or trading of “warez”[2] can be punishable as a criminal offense (Goldman).

The thesis for this paper is that such laws against pirating are analogous to the War on Drugs, which has been going on since the Harrison Narcotics Tax Act of 1914. I argue that, like the War on Drugs, the War on Online Piracy will make greater and greater use of civil asset-forfeiture, an eye-popping legal concept straight out of the Bible via the Middle Ages.

A Brief History

The online piracy we hear so much about today started long before the Web, as informal digital copying among small groups of computer hobbyists, specifically the unauthorized copying of data contained on so-called “floppy disks”, a method of storage now nearly extinct. One of the first people to complain about it was none other than Bill Gates, who is today the second-richest man in the world. Back in 1976, he and Paul Allen ran a company with the now-clunky looking name of “Micro-Soft”,[3] located in Albuquerque, New Mexico. In an “Open Letter to Hobbyists”, Gates complained that after investing the equivalent of $40,000 in computer time to develop Altair BASIC (a kind of predecessor of Gates’ DOS[4] operating system, itself being a predecessor to Windows), no more than 10% of its users had actually paid for it. He added that those royalties amounted to being paid $2 per hour (Gates). As the popularity of desktop computers and DOS spread in the 1980s, the illegal copying of such software spread as well, and was particularly popular on college campuses, being practiced by faculty and students alike. But that illegal “freeware” was about to turn into a boon for Gates.

A necessary part of the software writing and selling business was and remains the upgrade. When the time came to upgrade the original DOS, Gates’ company had many thousands more potential customers than it otherwise would have. And those customers were using Gates’ programs for more and more important professional work, not just hobbyist stuff. Given the uncertain nature of pirated software, and the growing problem of computer viruses and the growing awareness of them, more and more DOS customers found it advisable to start buying the upgrades at retail prices in retail outlets. In short, they were hooked on DOS, and when they got hooked, everyone they were in digital contact with got hooked as well.

Today

The Web has changed the basic nature of online piracy. It has become much easier, tacitly accepted by greater numbers of people, much more widespread, and much, much more lucrative. New technologies have helped, from increased high-speed bandwidth to new and highly efficient file transfer protocols, such as BitTorrent. The nature of what is being pirated has changed too. Before, floppy disks of the latest DOS upgrade and compatible program files were copied and either sold or traded privately between individuals. Later, flea markets became big venues for pirated electronic disks and videotapes of all kinds (Landes and Lichtman). Nowadays, if you don’t want to buy Windows, you can get all sorts of perfectly legal open-source operating systems for free, Ubuntu (an open-source Linux implementation) being a leading example.[5] Free cloud-based word processing, spreadsheets, and presentation software is also available, and are providing increased competition to Microsoft’s proprietary Office software.

The venue for trading has changed as well. Flea markets are no longer important. Today, when people speak of pirating, they are mainly referring to the illegal file-sharing of music and movies — highly popular commercial intellectual property protected by copyright. What’s more, the pirating is blatant. Some websites make no bones about what they are doing, others do so under the cover of free speech and unfettered political and economic liberty — “rationalizations” that move the cultural conversation from that of crime to that of activism[6] (Hinduja). Seen in this light, the present state of online piracy can be exemplified by two cases, involving two defendants on the opposite ends of the spectrum: a single recipient of such files, and perhaps the biggest source of illegal files on the Web.

Case One

Jammie Thomas-Rasset, a 35-year-old resident of Brainerd, Michigan, was sued by a group of recording labels in 2005 after allegedly downloading over a thousand songs from Kazaa, a now defunct peer-to-peer file transfer website, and making them available to others. The suit specified only 24 songs, but the initial judgment against Thomas-Rasset was in the amount of $222,000. Thrown out on a technicality, the second trial resulted in a judgment against her for $1.92 million. The judge reduced it to $54,000. The labels offered the defendant a settlement of $25,000, which she refused. In a third trial, the jury set the fine against her at $1.5 million. That judge again reduced the award to $54,000. The plaintiffs appealed. As a result, the originally judgment of $222,000 was reinstated. There the matter rested. However, the defendant, an employee of the local Indian tribe’s government and the mother of four children and a then-unemployed husband, has stated that she has no assets and will not be able to pay the fine. And there, after all the legal maneuverings on both sides during the initial trial, retrial, motion for injunction, reduction of damages and settlement offer, third trial, and final appeal proceedings, the matter rests, to the satisfaction of absolutely no one.

Case Two

This involves The Pirate Bay, a Swedish BitTorrent site that enables peer-to-peer file sharing of music, movies, application programs, porn (of course) and anything-else files. It bills itself as “The galaxy’s most resilient BitTorrent site”. This it may well be, because even after the site was: raided by police in 2006 and its servers confiscated; after a trial in 2009 in which the three founders were found guilty of facilitating copyright infringement; after each was sentenced to a year in prison and ordered to pay a fine of equivalent to $4,200,000; after the prison time was reduced but the fine increased; after Pirate Bay’s internet service providers were sued by most of the major entertainment companies; after the site was hit by hackers; after it was blocked by fourteen countries around the world; after it was blocked by Facebook and Microsoft — thepiratebay.sx is online and operating, earning money through advertisements, donations, and the sale of merchandise. Both of these cases show that the state of online piracy, theft, copyright infringement — whatever you want to call the many variations of essentially the same thing — is unsettled and far from satisfactory, a kind of riptide of conflict between artists, their corporate sponsors (if any), the police, the courts, and the Constitution. The obvious questions are: how long can this state of affairs last? What can be done to change it? Or, rather, what will be done?

The Future

Drug-war laws and laws against online piracy confront essentially the same kind of problem, and that in time the police and the courts will respond to online piracy as they have responded to continued illegal drug-use: through the use of criminal and civil forfeitures. However, I believe it will be in civil forfeitures that the real increase will occur. Before going further, I should discuss civil forfeiture in some historical detail. Basically the idea is that animals and property can be charged with criminal and civil crimes, and punished. The legal tool is called a deodand, a Latin word meaning given to God. In the Bible, Exodus 21:28 states If an ox gore a man or a woman that they die, the ox shall b surely stoned and its flesh shall not be eaten. In case the theory is unclear to you, a federal judge once remarked “When the ancient concept is recalled, our understanding of the law of forfeiture of chattels is more easily understood” (Levy). That comment was spoken in relation to the case entitled United States of America, Plaintiff v. One 1963 Cadillac Coupe de Ville Two Door, Motor and Serial Number 63J002241, 8-cylinder, Defendant. The crime the car committed was transporting “marihuana” (the accept spelling at the time). Just to make the concept even (un)clearer, in United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, the U.S. government (unsuccessfully) sued the rifle that was used to assassinate President John F. Kennedy. (It was later acquired under eminent domain clause of the Fifth Amendment — the rifle was claimed for a presumed public purpose.) Forfeitures in criminal cases are called in personam — against the defendant, and, being understood as punitive, are easy enough to accept in principle. However, civil forfeitures are in rem, meaning against the thing or animal. The owner of the thing (a car that overturns, killing the passenger) or animal (a horse that throws and kills its passenger — in the Middle Ages, offending animals would be put on trial and sometimes dressed in human clothing. Found guilty, they could be hanged or burned with no restitution for the animal’s owner) may not even be suspected, never mind charged with a crime. Yet the object is taken from them, making them punitive for all practical purpose. One aspect of civil forfeiture in the U.S. is key: the relation-back doctrine: the government’s claim to the seized property dates not from the seizure, but from the commission of the crime. If a suitable crime is committed in a house in January, and the house is sold in June, a civil asset proceeding begun in December will take the house from its new owner, without restitution. The U.S. Supreme court established the essential legality of this in 1796.

With the above two cases in mind, we can now see the advantage of using civil forfeiture: the person involved is not charged with a crime and need not be tried. In the meantime their assets are no longer theirs. In the case of Jammie Thomas-Rasset, any physical assets remotely related to the commission of her “crime” could simply have been seized. Having no money for an attorney and no familiarity with the law, she would have had no choice but to let the government keep what it had seized. In the case of The Pirate Bay, no Americans were directly involved, and the U.S. has not blocked the website. Were that to change, however, a civil forfeiture case would probably do a lot more damage to the site and at considerably less cost.

Civil forfeiture is the way of the future in the war on online piracy, just as it has become today’s reality in the war on drugs. That is because there is no effective way of fighting either, and never will be. Daniel Defoe, the author of Robinson Crusoe (1719), complained bitterly of printers who illegally copied the high-quality editions of his book to sell them cheap, with no royalties to him. As for the government’s war on marijuana and other drugs, the less said the better. So the government might as well get money for its futile efforts. Civil forfeiture feeds the war machines at the cost of civil liberties, but most people will never be aware of it, or care.

And now a surprise. I wrote this paper in a linear way, starting with my thesis and then researching and writing as I went along. As it happened, until the minute I ended the above paragraph, I had never heard of The Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act of 2008). Here is how it is described on a C|Net website:

Any computer or network hardware used to “facilitate” a copyright crime could be seized by the Justice Department and auctioned off. The proceeds would be funneled to the agency’s budget. The process is called civil asset forfeiture, and typically the owner does not need to be found guilty of a crime for his property to be taken. (McCullagh)

The government’s expanded criminal forfeiture powers have already been used by PRO-IP, in the case of Megaupload, a file-sharing website. On January 12, 2012, the U.S. Department of Justice in coordination with Hong Kong and New Zealand police initiated the seizure of property and assets of the company and its owner, Kim Dotcom. Note however, that it was a criminal case, not a civil one. Since then, New Zealand authorities have returned to Dotcom $750,000 in assets, and one U.S. District Court judge has said he is not sure there will ever be a trial.

I doubt that the lesson will be lost on government prosecutors: next time, they will just find critical pieces of internet hardware and do to that what they did to the Cadillac: take it.

Works Cited

Gates, Bill. “An Open Letter to Hobbyists.” 3 February 1976. Microsoft Archives. <http://www.microsoft.com/about/companyinformation/timeline/timeline/docs/di_Hobbyists.doc>.

Goldman, Eric. “A Road to No Warez: The No Electronic Theft Act.” Santa Clara Law (2003): 369-370. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=520122>.

Gopal, Ram, et al. “A Behavioral Model of Digital Music Piracy.” Journal of Organizational Computing and Electronic Commerce (n.d.): 3. <http://users.business.uconn.edu/rgopal/Papers/IPR6.pdf>.

Hinduja, Sameer. “Trends and patterns among online software pirates.” Ethics and Information Technology (2003): 51. <http://stuff.mit.edu/afs/athena/course/21/21w.784/www/BD%20Supplementals/Materials/Unit%20Two/Piracy/trends%20in%20software%20piracy.pdf>.

Landes, William and Douglas Lichtman. “Indirect Liability for Copyright Infringement: An Economic Perspective.” The Law School, University of Chicago (2003): 1. <http://www.law.uchicago.edu/files/files/179-wl-dgl.copyright.pdf>.

Levy, Leonard W. A License to Steal: The Forfeiture of Property. Chapel Hill: University of North Carolina Press, 1996.

McCullagh, Declan. Copyright bill boosts penalties, creates new agency. 5 December 2007. <http://news.cnet.com/8301-13578_3-9829826-38.html>.

[1] In this paper, I will consider online and digital piracy, theft, and copyright violations as synonymous terms.

[2] Wikipedia tells us that “Warez refers primarily to copyrighted works distributed without fees or royalties, and may be traded, in general violation of copyright law.” In many cases, the protective encryption or key has been broken.

[3] A portmanteau of Microcomputer (as opposed to Minicomputer) and Software.

[4] Disk Operating System, once known as QDOS, for Quick and Dirty Operating System.

[5] Open-source software can be described as the kind of program that can no longer be introduced into the marketplace as money-making proprietary product. Instead, it is a platform for other programs.

[6] Also known as hacktivism, another portmanteau word.