Internet Book Piracy Read online

  Other Battles by the Film and Music Industries Against the Pirates

  While the Sony hack is the largest high-profile and most damaging act of piracy against the film and music industries, the battle of these industries against piracy goes back over a decade, and they have largely carried the banner in the fight. That’s because the film and music industries have been more organized and consolidated than the vast number of small and medium-sized publishing companies, individual self-publishers, and authors of millions of books published each year, most self-published. Moreover, the major film and music companies have far larger warchests to bring to the battle.

  For example, the more than twenty thousand lawsuits filed by the RIAA (the Recording Industry Association of America) against music fans who downloaded free songs online instead of buying CDs initially raised a ruckus from protesters who claimed these lawsuits were unfair—like an army of evil Goliaths hitting thousands of Davids who couldn’t fight back. However, the strategy was ultimately successful. The RIAA hardline position was that anyone making unauthorized copies of copyrighted music recordings was stealing and “could be held legally liable for thousands of dollars in damages.”

  That’s what one woman, Jammie Thomas, found after a trial before a federal jury in Minnesota in 2007. She was ordered to pay $220,000 to the big record companies—“9,250 for each of the 24 songs she was accused of sharing online” (www.washingtonpost.com/wp-dyn/content/article/2007/12/28/AR2007122800693.html). In his testimony before the Senate Committee on Governmental Affairs, CEO of the RIAA Mitch Bainol, whose members create and distribute 90 percent of all legitimate sound records in the US, argued that these lawsuits against peer-to-peer sharers were justified, given the drastic decline in record sales that was threatening the security of industry (http://amh500.edublogs.org/the-music-industrys-lawsuits-against-online-music-sharers-are-justified). Besides, as he pointed out, although the peer-to-peer networks were well aware of the widespread illegal copying, they took no steps to stop it, and even encouraged and enabled this sharing, while “taking steps to shield themselves from liability.”

  Eventually, this strategy of going after both the consumers and networks was largely successful, resulting in the end of Napster and the emergence of companies like iTunes and Rhapsody, which offer individual sales or subscriptions to download services and pay royalties to the artists and companies.

  Meanwhile, the movie industry has similarly targeted the file-sharing services and their customers to stop movie piracy. For example, in “The Long Lasting Battle Against Online Movie Piracy,” Juan Matossian describes how one independent film company, Nu Image, backed by the US Copyright Group, announced the biggest file-sharing lawsuit ever filed in the United States in February 2011 in Florida, Washington, and Maryland. In the lawsuit, over twenty-three thousand IP addresses were cited for illegally downloading the Sylvester Stallone movie The Expendables, and a federal judge allowed Nu Image to subpoena Internet service providers to identify the customers at each IP address (http://nyccultureblog.journalism.cuny.edu/2011/05/19/the-long-lasting-battle-against-online-movie-piracy). Although that suit ran into problems because many defendants didn’t live where the case was filed, in February 2012, Nu Image filed a suit targeting 2,165 residents in Maryland who downloaded Conan the Barbarian (http://blogs.villagevoice.com/runninscared/2012/02/you_might_get_s.php).

  While the major studios have largely decided not to use this approach because of the PR dangers and legal complications, they have turned to Washington for assistance in passing protective legislation, such as a bill introduced by Senator Patrick Leahy to prosecute the websites devoted to selling counterfeit products, including movies and TV shows. While Leahy’s bill ultimately went down to defeat due to a growing chorus of defenders of Internet freedom, ultimately, much of the film industry’s piracy problem disappeared with the emergence of video download and subscription services like Netflix, Amazon Prime, Hulu, and iTunes, which worked out arrangements with the major movie companies to pay them for the films added to their collections.

  Now, to combat the remaining Internet services offering pirated music or films, these industries have been working with Internet providers to fight piracy. For example, as noted by technology editor Ian Bush, the music and movie industries have been teaming up with Comcast, Verizon, Time Warner, and several other Internet service providers “in a push to fight piracy that’s expected to take a ‘six strikes and you’re out’ approach.” Basically, this six-strikes policy means you will get five chances in which the Internet provider will first tell you what you are doing is wrong and warn that further violations could create big problems for you—such as a lawsuit from the copyright holder (http://philadelphia.cbslocal.com/2012/10/17/music-and-film-industry-working-with-Internet-providers-to-fight-piracy).

  Called the Copyright Alert System (CAS), this system joins the biggest copyright holders—including the Motion Picture Association of America, the Recording Industry Association of America, and the National Cable and Telecommunications Association—with the ISP organizations to jointly battle copyright infringement in an organized way. The way it works is that the Internet providers and copyright holders will use peer-to-peer (P2P) surveillance methods to determine when copyrighted content is uploaded or shared illegally. Then, any owner of copyright, which has so far primarily been moviemakers, musicians, and other content creators, can seek help from various powerful infrastructure companies. These might include Internet service providers, credit card processors, and search engines that can undermine sites that enable piracy by making it hard for them to operate and process transactions.74 Once the copyright owners see their movies, music, TV shows, or other copyrighted materials shared without permission on a P2P site, they are able to notify the ISP of the Internet protocol (IP) addressed, whereupon the ISP notifies the individuals with that IP to stop the illegal file sharing. If they don’t, the ISP can act to negatively impact the IP owner’s Internet experience, such as by reducing their bandwidth or quality of service.75

  For example, one company that helps content owners do this is MarkMonitor, owned by Thomson Reuters, a huge multinational corporation. It joins the BitTorrent networks, the most common method for illegally sharing files, to look for the names of copyright-protected movies, music, and TV shows. Once MarkMonitor finds a file that has been illegally uploaded or shared, it will find the IP address of the user and send it to the user’s Internet provider, who will issue a series of increasingly dire warnings sent to the user’s email address. By the fourth or fifth alert, the Internet provider can begin taking action against the user, such as reducing the speed of his or her connection, making it more difficult to download illegal files. Then, the sixth alert could result in a lawsuit (http://www.popsci.com/technology/article/2013-02/everything-you-need-know-about-piracy-battling-copyright-alert-system). Alternatively, upon getting such a notice, many IP service providers will ask the user to take down the infringing content, or they will take it down or remove access to it themselves.

  However, the Copyright Alert System only affects peer-to-peer file sharing, such as the BitTorrent sites. It does not affect the cyberlockers, which host illegal content and enable individuals to access links to stream this material, leading to the use of litigation against some of these more blatant lockers, such as the notorious Megaupload case against Kim Dotcom.

  In addition, some content owners, such as movie studios, are seeking help from law enforcement agencies, such as ICE, the US Department of Homeland Security Immigrations and Customer Enforcement’s task force, or the FBI, and taking legal action against individuals pirating materials.76

  Latest Developments in the Battle Against the Pirates by the Film and Music Industries

  With these new tools, such as the Copyright Alert System and the assistance of law enforcement, there have been increased efforts to fight piracy, especially by the film and music industries. One example is the case against isoHunt Web Technologies, Inc. for “inducing users
to illegally download and distribute copyrighted materials such as movies and TV shows.” In March 2013, the US Court of Appeals for the Ninth Circuit issued a unanimous decision against the company, and another trial is expected to determine how much in monetary damages isoHunt has to pay the plaintiffs. Yet, while the court issued an injunction against the company, it has continued to operate through private servers located in Canada and is still “the fourth most popular torrent site on the internet,” with approximately fifty-nine million file shares to nearly 11.8 million active users.77

  Another recent development in the piracy wars has been the attempts to get some legislation passed to combat infringement, such as the Protect IP Act (PIPA) in the Senate and the Stop Online Piracy Act (SOPA) in the House, though they were defeated due to a highly vocal opposition and protests by those in the tech community. Among other things, they feared the power of law enforcement, ISPs, and other gatekeepers to restrict access to entire Internet domain names. Protests also claimed that the requirement of search engines to delete domain names went too far in that this action could be taken even if the infringement only occurred on a single webpage or blog.78 Yet, while these bills failed, many services involved in providing Internet access began to take steps on a voluntary basis to curtail piracy. For example, as Claudia Kienzle notes in an article in Streaming Media Magazine, “Search engines volunteered to take down links to pirated content, and ISPs and large networks tried to be more rigorous in enforcing their standards, such as prohibiting advertising on sites that are engaged in piracy. Credit card processors volunteered not to process payments for sites that sell infringed materials.”79

  There has also been a growing business in companies seeking to track down and dissuade pirates primarily providing this service for the film and music industries. If the pirates don’t desist, the next step might be litigation or assistance from law enforcement or legislation to penalize them. For instance, one such company that targets pirates and claims a 60 percent reduction in piracy for its clients is London-based KLipcorp. Using a proprietary technology, the company locates pirated content, identifies the pirates, and gathers evidence to show the extent of their piracy. Then, it takes action to discourage or stop these illegal activities by putting the perpetrators, rather than the individual consumers, on notice. The final step is to take legislative or legal action to stop them and penalize them. Additionally, the company tracks pirate sites’ digital advertising that is placed around illegal content. Often the agencies are unaware that this is infringed-upon material, or the pirates can sell ads for a much lower amount than a traditional media company would because they aren’t paying anything to the rights holders and have very low production and distribution costs. The goal is to get the advertisers to not advertise there.

  Still another strategy has been for law enforcement to file charges against the most egregious pirates of films and music. For example, California Attorney General Kamala Harris filed charges against three brothers—Hop Hoang, 26; Tony Hoang, 23; and Huynh Hoang, 20—for one count each of conspiracy, four counts of receiving stolen property, and one count of grand theft for operating a website, mediamp4.com, which allowed users to stream over one thousand copyrighted TV and movie titles on their computers and mobile devices. Among the titles were the popular sitcom How I Met Your Mother and some box office hits, such as Black Swan and Tangled. Now the brothers face up to five years in prison.

  The case began when the Motion Picture Association of America initially began investigating iphonetvshows.net and movieiphone.net and sent a cease and desist letter to Tony Hoang, who then continued the operation under the new name mediaamp4.com. Then, the Attorney General’s office began an investigation into this site, with the assistance of the eCrime Unit of the California Attorney General’s Office, the California Highway Patrol, and REACT, a law enforcement task force in Santa Clara, California, specializing in investigating technology crimes and identity theft. Among other things, the investigators executed a search warrant, seized property used to further the illegal operation, conducted a forensic analysis of the computer that was seized, and filed charges against the brothers.80

  In investigating the case, Harris’s office said that the brothers earned $150,000 in ad revenue during the eighteen months the site operated, much of the traffic resulting from Google search ads.81 Though this case may seem like a drop in the bucket, considering the huge number of piracy websites and the millions earned by many of these, the prosecution is like a warning shot to dissuade other would-be pirates, given the serious economic damage caused by the crime. As Harris put it: “Digital piracy is theft. It is a serious crime that harms one of California’s most important economic engines—our entertainment industry. This case sends a clear message that the California Department of Justice will investigate digital piracy and prosecute violators to the fullest extent of the law.”82

  However, there have recently been some court rulings that may make it more difficult to pursue lawsuits against multiple defendants, as some record labels and film studios have done in suing nearly 250,000 defendants for downloading and sharing copyrighted files in the last few years. Most of these suits end with settlements of about $2,000–$7,000 each. Such suits have been relatively inexpensive to bring, since most of these defendants have been combined together into a large case whereby the copyright holder can obtain the personal details of the alleged infringers via their IP addresses. These grouped cases have meant that the copyright holder doesn’t have to pay a filing fee for each defendant. Instead, for a single fee they can sue hundreds or thousands of alleged infringers at the same time. But the latest rulings could make that impossible.83

  As described in a January 2014 Torrent Freak article, a federal judge in Iowa ruled that copyright holders can’t join multiple defendants in a single suit, since there is no proof that they shared files with each other. As Federal Judge Stephanie Rose ruled in judging several cases involving independent films—such as Killer Joe, Sibling, and The Company You Keep—the file sharers aren’t acting in concert because they all “downloaded the same torrent file and joined the same swarm,” as argued by the copyholders. Instead, Judge Rose ruled that in order to join multiple defendants in a single lawsuit, the copyright holder would have to show they were involved in the same series of transactions to demonstrate it was likely that they trade files with each other. But in the cases she judged, there were weeks or even months between the time the first and last defendant was observed sharing the film. So it appeared unlikely that all the defendants actually shared files with each other, even though they shared a torrent file with the same hash mark. Thus, Judge Rose concluded that all mass-BitTorrent lawsuits should be limited to one defendant, and she dismissed all of the other cases.84

  Though other judges could still reach other conclusions, the rulings provide a warning that other movie studies, as well as music, book, and other copyright holders, will find it more difficult to use mass lawsuits as a strategy against copyright holders. In fact, defendants in other cases will be able to use these rulings as precedents in their own cases.

  It’s a trend that has continued, with other judges more carefully looking at these suits with multiple defendants. For example, in a Mother Jones article titled “Why It’s Getting Harder to Sue Illegal Movie Downloaders,” Dana Liebelson cites a series of cases where the judges have dismissed or become more wary about granting subpoenas to companies with only IP addresses to identify defendants. For example, in January 2014, one judge in the US District Court for the Western District of Washington in Seattle dismissed a case brought against 152 anonymous defendants by the studio that produced Elf-Man, a direct-to-video movie, stating that “simply identifying the account holder associated with an IP address tells us very little about who actually downloaded Elf-Man.” And earlier a federal district judge in New York in 2012 and a federal district judge in Illinois in 2011 similarly dismissed the cases on the grounds that IP addresses “don’t have a high degree of reliability,
and they’re not an accurate representation of who has control of the computer.”85

  The problem is that an IP address usually indicates the person who pays for the Internet account, but not the person doing the downloading, since all the people using a single wireless router have the same IP address, and now over 60 percent of people use wireless routers in their house, which wasn’t the case a decade ago. So a neighbor could easily be the person guilty of making the illegal downloads, as well as using another person’s Internet IP router without permission.86

  Thus, even while some judges have issued these rulings, there are still many lawsuits being filed, though the studios are no longer going after the tens of thousands of defendants at once as they were doing from 2011 to late 2012, as in the Hurt Locker case, where the producers sued nearly twenty-five thousand BitTorrent users for illegally downloading the film. However, they later claimed to have dismissed almost all of the claims, since it took them too long to find most of the defendants by their IP addresses. Instead, the claims are generally filed against no more than one hundred defendants who are the most active downloaders, who are more reasonable to pursue and more acceptable to the courts, as well as being better public relations with consumers generally.87

  Aside from lawsuits, another strategy has been to go after the advertisers whose ads appear on the pirate sites, again with the sites with video and music content attracting the most attention. For example, in response to the Obama administration’s request for private-sector actions to reduce piracy, the American Association of Advertising Agencies, also known as the 4A, and Association of National Advertisers (ANA) have sought to keep their members’ ads off such sites. The value of these ads has been substantial, as a report from the Digital Citizen Alliance, a nonprofit focused on Internet safety issues, has shown: about $227 million in ad revenue in 2013. Moreover the report has pointed out that piracy not only is “a threat to the content creators whose material is being stolen but the reputations of the advertisers whose brands appear on the sites.”88 In fact, the 4As and ANA issued a statement of best practices for its members to follow to avoid supporting sites with exclusively or primarily pirated material:89