Cyber Piracy: An International Epidemic

By: Harshini Tippareddy

Since the early days of our civilization, from artwork on cave walls to the invention of motion pictures, humans have been creators and pioneers. Although impressive and remarkable, with the evolution of mediums of expression and the advancement of technology comes new challenges. Today, due to the limitless nature of the Internet and the increasingly easy access to worldwide information, cyber piracy has become commonplace and prevalent. A simple “CTRL-C” followed by a “CTRL-V” can reproduce infringing work in a matter of seconds.[1] The private nature of the internet has allowed infringers to preserve their anonymity behind their screens and it has enabled cyber piracy to flourish. If a person walked into a store and took a candy bar without paying, he would be charged with theft. However, when a person sits behind a computer and downloads music, movies, games, software, or applications from unauthorized sources, they are not held to the same accountability as the shoplifter. The reason is due to the difficulty in identifying and policing online infringer, in addition to the simple fact that it is easy to copy. The FBI stated that most of the piracy occurs overseas, where the laws are often lax and enforcement is more difficult.[2]

Piracy in Our Own Backyard

In a study commissioned by NBC Universal, it was revealed that 23.76% of the global internet traffic was estimated to be infringing.[3] In the United States alone, 17.53% was found to be infringing.[4] A 2007 study by the Institute for Policy Innovation found that the U.S. economy loses $12.5 billion in total annual output as a result of sound recording piracy.[5]  This translates to approximately 71,060 jobs and a minimum loss of $422 million in tax revenues.[6] More recently, on July 8, 2016, the U.S. Department of Justice charged the owner of the most-visited illegal file-sharing website, Artem Vaulin of Ukraine, with copyright infringement.[7] Mr. Vaulin is the alleged owner and operator of Kickass Torrents (KAT).[8] Since 2008, KAT has reproduced and distributed hundreds of millions of copyrighted media including movies, video games, television programs, and music.[9] The complaint states that the copyrighted material is approximately valued over $1 billion.[10] The website receives more than 50 million visitors every month.[11] The allure of KAT is that it allowed users to download new movies that were still in theaters. The site operated in approximately 28 languages around the world.[12] Although KAT has been subject to numerous seizures and copyright lawsuits, KAT just moved its domains to keep operating.[13] The case against Mr. Vaulin is currently being prosecuted in the Northern District of Illinois.

The “Three Strikes, You’re Out” Rule

In 2008, the Recording Industry Association of America (RIAA), a trade group that represents the U.S. recording industry, and other large groups decided to combat piracy using a graduated response system, also referred to as the Three Strikes system.[14] Instead of suing individuals for file sharing and cyber piracy, the RIAA campaigned to involve internet service providers (ISPs) to police suspected infringers. Other countries like South Korea, France, Taiwan, the United Kingdom, New Zealand, and Germany also enacted variations of the Three Strikes system to combat cyber piracy.[15] Essentially, this system involves a copyright owner to notify an ISP if the owner’s intellectual property is being infringed upon. The ISP then sends out a notice to warn the infringer of the alleged infringement. If the ISP issues three notices within a one-year period, the subscriber faces serious penalties, including a temporary termination of the subscriber’s Internet connection.[16] In theory, the Three Strikes rule offers copyright holders an avenue to discourage infringers. After all, the purpose of copyright law is to reward innovation and creativity in the form of value protection. When someone makes unauthorized copies of an owner’s creative work, they are stealing something of value without the owner’s permission. Movies, music, computer software, and games are all forms of intellectual property that are subject to copyright protection. The owners are left without the remuneration that would have enabled them to create new work because the consumers are no longer providing enough money for them to continue their business.[17]

However, the Three Strikes rule, in practicality, does not effectively combat this issue. The anonymous nature of the Internet makes it virtually impossible to know who the actual infringer is. Family members, friends, guests, and hackers may use one IP address. Additionally, there’s the problem of communal web access, such as, Wi-Fi facilities in libraries, airports, universities, or restaurants.[18]

There are also constitutional challenges with the Three Strikes rule. The uncertainty of directing infringement notices only to actual infringers raises due process concerns.[19] Due process assures citizens that all levels of the American government will operate within the law and provide fair and just procedures.[20] However, there are critical issues regarding whether or not IP addresses can be classified as identifiable information.[21] If it is virtually impossible to identify the actual infringer, simply notifying the owner of the IP address is not fair or just. Furthermore, unless the ISP obtains a warrant or a court order allowing them to access the consumer’s internet activity, the Three Strikes rule violates another fundamental right, the right to privacy.[22] By monitoring an individual’s online activity, the ISP is obtaining private information and invading the sanctity of one’s home. The Constitution states, “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated…”[23] The use of tracking technology to detect alleged copyright infringers’ IP addresses can be construed as a monitoring of personal internet usage, and therefore, an intrusion into one’s private life.[24] Even if consumers agree to allowing ISPs to monitor their use in exchange for use of the internet services, it could invoke the state action doctrine. State action can be found when a private corporation, such as an ISP, provides a “public function”, such as the use of the internet.[25] In this instance, the private corporation is an agency of the State and is subject to its constitutional limitations.[26] One of the cornerstones that makes the United States stand apart from other countries is the freedoms enjoyed by our citizens. The intrusion of the ISP, as an agent of the State, into people’s homes cannot be overstated.

What Does the Future Hold?

The crisis confronting cyber piracy and copyright infringement escalates as technology is rapidly exceeding the legislative groundwork being laid.[27] With today’s technology, with a simple click of the “download” or “share” button on a computer or smart phone, electronic information can be accessed and shared by anyone in the world. There are several variables that make it easy to download pirated content. First, a lot of consumers are unaware what constitutes illegal content. Illegal websites draw consumers with advertisements that directly link the user to the website. The unknowing user will click the link and be enticed with the enormous amount of downloadable content. Another factor is the double-edged sword of login and prerequisite requirements. If there is no login or other prerequisite to download the content, the user is drawn to the ease and simplicity of the website. All a user needs to do is click the big “download” button and the content is on your computer in minutes. On the other hand, if there are prerequisites, users will mistakenly interpret this to mean that their services are legitimate. Additionally, illegal websites look like legal websites. There is no disclaimer about the illegal content or the threat of copyright infringement. The display and simplicity deceives the user into trusting the content. Another confounding variable is the international reach of the internet. A website created in China is just as accessible in the United States or another country. Instead of individual countries responding to this piracy epidemic, a coordinated international response is necessary be more effective.

[1] Adam Bialek et al., Punitive Responses to Cyber Piracy: Is “Three Strikes, You’re Out” the Answer? – Part One, Bloomberg BNA (Oct. 21, 2011), http://www.bna.com/punitive-responses-to-cyber-piracy-part-one/.

[2] Intellectual Property Theft/Piracy, FBI, https://www.fbi.gov/investigate/white-collar-crime/piracy-ip-theft (last visited Nov. 18, 2016).

[3] Bialek, supra note 1.

[4] Id.

[5] Id.

[6] Id.

[7] Complaint, United States v. Vaulin, No. 16-CR-438 (N.D. Ill. Jul. 8, 2016), https://www.justice.gov/opa/file/877691/download/.

[8] Id.

[9] Affidavit of Jared Der-Yeghianyan, supra note 7, at ¶ 2.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Bialek, supra note 1.

[16] Id.

[17] Who’s hurt by copyright infringement?, News Media Rights (Nov. 25, 2011, 2:55 PM), http://www.newmediarights.org/business_models/artist/who_hurt_copyright_infringement.

[18] Felipe R. Moreno, The Three Strikes and You Are Out Challenge, 3 EUR. J.L. TECH. 1, 2 (2012).

[19] Bialek, supra note 1.

[20] U.S. Const. amend. V; U.S. Const. amend XIV.

[21] Moreno, supra note 18, at 3.

[22] U.S. Const. amend IV.

[23] Id.

[24] Moreno, supra note 18, at 3.

[25] Marsh v. Alabama, 326 U.S. 501, 506 (1946).

[26] Id.

[27] Moreno, supra note 18, at 6.