Keep Turning, Washington Irving; Digital Piracy and Copyright Infringement Are Alive And Well in 2015

While Washington Irving is best known for works like Rip Van Winkle and The Legend of Sleepy Hollow, he was also regarded as being a major, early advocate for stronger copyright laws, both in the United States and internationally. Many have credited Irving as being the first American author to make a living solely by the income from his writing, an economic impossibility from the settlement at Jamestown until Irving’s advocacy (circa 1840). In the interim, writers wanting to earn their living accordingly, quite simply, moved back to England, where they could get publishing and printing assistance along with stronger laws that helped them protect their works from reproduction and theft. Fast forward 400 years from Jamestown, and we have a similar problem. The big difference is: if you’re a modern author or songwriter, you can’t run to England, or anywhere else on the planet for that matter — because the people who are robbing you of your livelihood are all around you wherever you go.

So, what exactly is “intellectual property?” Merriam-Webster defines intellectual property as “property (as an idea, invention, or process) that comes from a person’s mind (Merriam-Webster).” Intellectual property is not specific to the age of the internet. Quite the contrary, the concept of intellectual property is older than United States herself, and is even protected by our Constitution. William Gindlesperger summed it up in his article as follows: “The Constitution of the United States (Article 1, Section 8, Clause 8) grants to Congress the powers to promote “the progress of science and useful arts “ by providing inventors the limited but exclusive rights to their discoveries. This applies to copyrights and patents with trademarks similarly protected … under the umbrella of intellectual property (Gindlesperger).” What this all means is simple: if you write a song, you have exclusive rights to that song. Specifically, nobody may use, copy, distribute, or sell your song without your permission. As for the crime, more loosely defined, online piracy refers to copyright holders having their intellectual property stolen and shared, without their permission, by millions of online “pirates.” These pirates have been facilitated by the invention of piracy tools in the late 90s, are further empowered by a lack of accountability and misplaced social acceptability. Furthermore, they feel their actions are justified by exploited information and misinterpretation of facts that are twisted to make it seem that online piracy is not an actual problem, much less a crime. Washington Irving would be turning in his grave like a rotisserie chicken if he were familiar with the modern state of protecting intellectual property.

Where and When Did It All Begin?

Mass consumer use of the Internet began in 1992, when Delphi became the first company to offer full service to its subscribers. Within 5 years, online theft of intellectual property and copyright infringement had already begun.

In his Time Magazine article, Lev Grossman introduced the “four horsemen of the digital apocalypse,” and briefly described each man’s contribution to the future of piracy. Grossman acquainted the reader with Justin Frankel, who in 1997, as an 18-year-old, wrote a free MP3 player called WinAmp, “which became a fixture on Windows machines and helped mainstream the digital-music revolution.” Grossman introduced Shawn Fanning who, as a 19-year-old, wrote Napster, “pioneering peer-to-peer file sharing and a new paradigm for consuming media without the intermediary of a big studio or retailer.” Next the reader met a Norwegian teenager named Jon Lech Johansen, who, as a 15-year-old “wrote a program that could decrypt commercial DVDs, and he became internationally infamous as ‘DVD Jon.’” Finally, the reader met Bram Cohen who, in 2001, at the age of 26, “wrote a peer-to-peer file-sharing protocol called BitTorrent that featured an elegant new architecture optimized for handling large files. BitTorrent has become the standard for distributing big chunks of data over the Internet (Grossman).” Despite the fact that each of these four individuals claims that their efforts were born of legitimate ideals for useful technologies, their four tools laid the foundations for the vast majority of copyright infringement in the 18 years that have followed.

Steal A Record From The Record Store? Not Cool! Steal A Song Online? No Problem!

Numbers and data abound in the area of internet piracy and copyright infringement, but, perhaps the biggest surprises in the discussion are the attitudes, and the social and cultural acceptability toward intellectual property theft. The relaxed attitudes are not just fostered within the court of public opinion, they are supported by some aspects of the academic community. Jean-Phillipe Vergne, Assistant Professor of Strategy at Ivey Business School at Western Canada University, not only avoids condemnation of internet pirates and their crimes, but he introduces the argument that the emphasis ought not be on the pirates themselves, but their collective, implied good intentions.

Vergne paints a picture of the online pirates, including a section of his article literally titled: “What do pirates stand for?” He explains “pirates represent a heterogeneous yet influential group of activists who defend a relatively stable set of principles emphasising openness, free access, transparency, and the notion of ‘common good’ (Vergne).” Vergne redirects the attention paid to the victims of internet piracy toward the corporate and government infrastructure that built and prospers on the internet. But believing that pirates are only hurting the interests of big governments and big businesses is a bit like believing that the bombs in Hiroshima and Nagasaki just knocked down a bunch of buildings and didn’t hurt anybody. Specifically, as it relates to online file sharing and illegal downloading, his stance fails to recognize that the common, everyday citizen is frequently engaged as a part of these businesses. So, while Vergne might have you believe that the aim of illegal file sharing is disrupting faceless telecommunications monopolies and government regulators, that distracts the reader from remembering that singer-songwriter copyright owners are the “little people” that are represented by these big businesses, and are the primary victims of the crimes committed by these pirates, no matter how noble Vergne makes them out to be.

Then, there’s the “Freakonomics” guys. Freakonomics is the brainchild of Steven Levitt, Professor of Economics at the University of Chicago, and Stephen Dubner, an award-winning journalist and author. Freakonomics was originally a book that “took up long-term residency on the Times best-seller list, and went on to sell more than 5 million copies in 40 languages (Freakonomics.com),” but then spawned into follow up books, a radio show, podcasts, blogs, and, of course, a website. Born of academia and journalism, and existing in the realm of popular culture, Freakonomics wields a tremendous amount of influence in financial and economic matters, and commands an equally tremendous amount of respect from the general public. In an article appearing on their website, the authors begin by sharing that proponents of recent bills in Congress, aimed specifically at addressing online piracy, “… argue that online piracy is a huge problem, one which costs the U.S. economy between $200 and $250 billion per year, and is responsible for the loss of 750,000 American jobs (Raustiala, Springman).” They then contrast those figures, noting that a recent study by the Cato Institute calls those numbers wrong, and offer that “more recently, a smaller estimate — $58 billion — was produced by the Institute for Policy Innovation (IPI).” It’s further pointed out that even that figure may be considered by some to be on the high side, and the remainder of the article discusses the difficulties in calculating such a figure as “actual losses” to the economy. Readers are lead to believe that the issue of online piracy and copyright infringement has simply been sensationalized, and is a far lesser problem than recent publications have lead them to believe. And, while it might be said that “you shouldn’t believe everything you read,” who’s going to argue with Freakonomics? If they said it, it must be true.

Since there is a measurable amount of tolerance coming from leaders in the academic community, it comes as no surprise that college students themselves constitute a sizeable portion of the community perpetrating online copyright infringement. In an effort to legitimize the long standing perception that college students are among the most prevalent infringers, Xiao Wang undertook a research project where he surveyed 547 students from various classes at two different universities. In his article Xiao explained that “the use of college students is … relevant because first, college students are more technology savvy and are heavy users or consumers of music, movies, games, and software. At the same time, they have less disposal (sic) money and are more likely than other groups to engage in illegal downloading (Wang).” So, did his research bust or confirm the myth that college students were more guilty than others? The project was successful at building on earlier research done by others and found three things: 1) if a participant had never illegally downloaded music, they were less likely to be influenced by guilt in doing so, 2) if a student had previously illegally downloaded music, but had not done so recently, they were likely to be influenced by their own personal feelings of guilt from their prior occasions of the crime and choose not to do it again, and 3) if a student was frequently illegally downloading music, there was little likelihood that their guilt would influence them otherwise, and they would continue to repeat the crime. This study builds upon others, such as I. Ajzen’s 1991 project which identified the “Theory of Planned Behavior (TPB),” and provides evidence that there was social acceptability among students and their peers when committing this type of crime, or, to say it differently, there was no condemnation among peers regarding the crime of stealing other people’s intellectual property. The same demographic of people who would demonize thieves stealing records and CDs from music stores have, for the most part, no social regard for the same theft online.

So, some leaders in the academic community are influencing popular culture and saying pirates aren’t that bad and the losses are exaggerated, and students themselves are committing a huge percentage of these online crimes with no social consequences. Could it really be any worse for copyright owners?

How Bad Is It, Really?

Some interesting facts and statistics would challenge the educated notion that pirates aren’t that bad, and online theft of copyrighted materials and other intellectual properties isn’t really a big deal. Robert Steele, President and Chief Operating Officer of Rightscorp, contests these assertions. During a recent interview, Steele contended that “the U.S. music business grossed $12 billion in 2000, right as file sharing was born. and it’s a $7 billion business today, so it’s been cut in half in the U.S. Worldwide, it was a $28 billion business, and worldwide it’s a $15 billion business today. The population of new music consumers grew by about 30%. The average spend per consumer has dropped dramatically. So, an overall market cut in half where the number of buyers has grown by 30% is a dramatic decrease (R. Steele, personal communication, October 2, 2015).” He also lamented that “NetFlix came out and told their shareholders that they charge less for NetFlix in countries that have high piracy. So that is the first time that we see absolute fact that digital media piracy reduces the income of the people who make digital media.” These arguments, and these facts, certainly fly in the face of the belief that this piracy is just a nuisance or small problem.

Picking Up Where Irving Left Off: The Fight For the Writer’s Rights

Copyright owners do have some allies, and some laws on their side. In fact, it is Steele’s belief that the reason these crimes are so widespread is not a lack of laws, nor is it that existing laws aren’t strong enough. What exacerbates the problem of online piracy is that fact that the spirit of protective laws, which were written both to protect copyright holders as well as channels that could be used to steal their property, is not being upheld satisfactorily by major industrial interests. However, the battle for the writer’s rights continues largely in the civil court system, partly facilitated by updates in federal copyright law, and by private companies employing technological advances to track down and prosecute pirates.

At a basic level, there are two types of online piracy crime. The first is when a pirate uses, shares, or distributes a copyrighted work, without permission, but does not benefit from it financially. For that type of crime, there are remedies available within the civil court system. The second type of crime is exactly like the first, except, in this case, the pirate then exacts money from others with whom the copyrighted work or works are shared. That then becomes a criminal matter, prosecutable in the criminal court system. Of the two classifications of this crime, the vast majority of it is civil in nature. Perhaps the two most famous (or infamous) cases relating to copyright infringement involved Jammie Thomas-Rasset and Joel Tenenbaum (Google either name and you’ll find lots of info). Of those two cases, the Thomas-Rasset case went up to the U.S. Supreme Court, which refused to hear the case, leaving stand the decision by the lower court which awarded damages of $9,250 per song fileshared. In the Tenenbaum case, damages were awarded in the amount of $675,000, and upheld after appeals. These, among thousands of others, are substantial awards, and should serve as a deterrent to others who commit these crimes, but, as they are not widely reported, the public at large still sees little risk in stealing songs.

However, whether civil or criminal, the ability of a copyright holder to pursue a pirate within the court systems is entirely dependent upon that copyright holder having knowledge of the crime, and the ability to prove it.

Increasingly, technological advances are giving copyright holders the ability to look for criminals online and gives them some tools to be able to collect evidence and enforce the law. Robert Steele’s company, Rightscorp, is an example of a company that acts as an agent for copyright holders and pursues copyright infringers to collect damages. As he describes it, “Rightscorp monitors the peer-to-peer file sharing networks for internet subscribers that are giving away or illegally distributing copyrighted materials without permission. When we identify an internet subscriber account that is doing this we send a notice to the ISP and ask them to forward out notice to the end user. The end user gets the notice, they’ve got an opportunity to settle the potential civil matter with the copyright holder for distributing the copyrighted material without permission. This opportunity is low cost so for $30 per instance of illegal distribution they can get a release of their potential liability from the copyright owner and this is a good solution for both the copyright owner and for the ISP because it prevents the ISP from having to suspend service and lose a customer and it costs the copyright owner and the ISP nothing to be able to enforce copyrights on the internet (Steele).” Of course, these services are offered only to Rightscorp clients. However, Rightscorp represents an industry of agents acting on behalf of copyright holders that might be the most effective weapon yet in the war against the pirates.

Aside from a copyright holder’s ability to pursue legal remedies, there is also the implied protection of the Digital Millennium Copyright Act (DMCA), which was designed to act twofold, by a) protecting the rights of content creators (including copyright holders), and protecting online service providers (OSPs) and internet service providers (ISPs) from liability when their commercial services are used by pirates to perpetrate their crimes. Title II of the DMCA is the portion that addresses liability protection for the OSPs and ISPs. The spirit of Title II, as explained by Suann Alexander and Diane Baird, “outlines protection for online service providers (OSP) from copyright infringement liability. The OSP is the institution, such as a library or university, providing the connections for digital online communication service. An OSP must meet certain conditions to qualify for protection. When notified of copyright infringement by copyright holders, the OSP must have in place a method of terminating service to subscribers who are repeat offenders. The OSP is not only the conduit for data information, but also provides the copyright holder a point of complaint (Alexander, Baird).” Therein lies the biggest challenge in the war against online piracy, according to Steele. “The part that I believe hasn’t been working well is that the law contemplated that the OSPs and the ISPs would have to terminate service to “repeat infringers”of copyright, and that was supposed to be the strong piece that balanced out the interests of the two parties.” Steele laments that far too few American consumers have had their internet service suspended for piracy in accordance with the law, and similarly bemoans that infringers’ YouTube accounts are seldom suspended for piracy. “And that’s why the DMCA currently doesn’t really work, because the OSPs and the ISPs, in my opinion, don’t take their responsibility to terminate service very seriously (Steele).” The good news is, there is some reason for optimism that those responsibilities may indeed be taken a bit more seriously in the very near future.

Industrial Accountability On Trial

Steele’s aforementioned lamentation is currently having its day in court. Cox Communications, one of the largest ISPs in the world, is being sued in US District Court by two large copyright owners, BMG Rights Management and Round Hill Music. The plaintiffs’ complaint revolves around the exact issue to which Steele referred: the lack of accountability, on behalf of Cox, to take seriously their responsibilities regarding the DMCA. Specifically, BMG and Round Hill allege that “Cox has not only ignored copyright infringement happening on their lines, they’ve deliberately ignored notices covering 7 million repeat infringements from over 200,000 subscribers, some of which have illegally swapped tens of thousands of files (Resnikoff).” The basis for their liability lies in the assertion that “Cox’s conduct renders it ineligible for safe harbor immunity from copyright liability under the DMCA.” Indeed, if the rights owners are successful, there could be “potentially trillions (yes, with a ‘t’) of infringement liability alleged.” It’s not so far fetched to imagine this case going all the way to the United States Supreme Court. But, even if it doesn’t go that far, the case itself puts Cox Communications, and all the other ISPs on notice that their compliance and cooperation with the law continues to be expected, and their favoritism towards profits at the expense of responsibility will no longer be a ignored.

Where Do We Go From Here? Fulfilling Irving’s Advocacy

The widespread, global reach of the internet means almost every copyrighted work ever produced is easily accessible from couches and classrooms everywhere. Combined with easy to obtain, replicable, sophisticated piracy technologies, copyright infringement has become easier than Washington Irving could have ever fathomed. The ultimate victory in the war against the pirates will not be realized on a single front. Rather, it will be realized by a sustained campaign in both the legal and technological fronts, combined with a cultural shift that will return to respecting the intellectual property of others, and disdainful treatment toward the criminals who feel that taking it for free is a sign of their own savvy, instead of the blatant disrespect of the Constitution of the United States in its original form. Robert Steele is particularly passionate about that point. He was emphatic when he said: “I believe that it’s a fundamental human right that if … you write a song, or write a book, or write a screenplay, or write an app, that part of the reason why we pay taxes is for the government to protect your rights to be able to determine who gets to distribute, and who gets to make money on your work (Steele).” Technologies and business models will continue to evolve that will make it easier for copyright holders to gather evidence of unauthorized use of their intellectual properties. That evidence will lead to more court cases, like the aforementioned between the plaintiffs and Cox Communications, which will help to influence the judicial system and, hopefully, set legal precedents that are favorable toward copyright holders. The reader has the opportunity to change their ways before their ways catch up with them, their checkbook, and their conscience.

References

Alexander, S., & Baird, D. (2003). The wrinkle in your research and teaching: Copyright, DMCA, guidelines, and public domain. Retrieved 10/11, 2015, from http://eric.ed.gov/?id=ED479254

Gindlesperger, W. (2011). Why intellectual property is protected by the U.S. Constitution. Retrieved 10/11, 2015, from http://www.manufacturing.net/articles/2011/06/why-intellectual-property-is-protected-by-the-us-constitution

Raustiala, K., & Springman, C. (2012). How much do music and movie piracy really hurt the US economy? Freakonomics.< Http://www.Freakonomics.com/2012/01/12/how-Much-do-Music-and-Movie-Piracyreally-Hurt-the-Us-Economy,

Resnikoff, Paul. (2015). Imagine If ISPs Were Responsible for All That Copyright Infringement. Digital Music News. Retrieved 09/25, 2015, from http://www.digitalmusicnews.com/2015/09/24/imagine-if-isps-were-responsible-for-all-that-copyright-infringement/

Vergne, J. (2013). The pirate and the capitalist: A love story? Policy, 29(3), 3–9. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=91683352&site=ehost-live

Wang, X. (2012). The immorality of illegal downloading: The role of anticipated guilt and general emotions. Computers in Human Behavior, 28(1), 153; 153–159; 159. Retrieved from Academic Search Complete database.