An alternative: How to solve online piracy

Recently there has been a lot of fervor over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). Each law gives the government more power over the internet. 

OpenCongress described PIPA as follows:

“[This law] establishes a system for taking down websites that the Justice Department determines to be "dedicated to infringing activities." The DoJ or the copyright owner would be able to commence a legal action against the alleged infringer and the DoJ would be allowed to demand that search engines, social networking sites and domain name services block access to the targeted site. In some cases, action could be taken to block sites without first allowing the alleged infringer to defend themselves in court.”

OpenCongress described SOPA as follows:

“This bill would establish a system for taking down websites that the Justice Department determines to be dedicated to copyright infring[e]ment. The DoJ or the copyright owner would be able to commence a legal action against any site they deem to have "only limited purpose or use other than infringement," and the DoJ would be allowed to demand that search engines, social networking sites and domain name services block access to the targeted site. It would also make unauthorized web streaming of copyrighted content a felony with a possible penalty up to five years in prison. This bill combines two separate Senate bills -- S.968 and S.978 -- into one big House bill.”

There is a bill proposed by some of the opposition, called the OPEN Act. I am not a fan of that legislation, but I don’t want to use up words trying to show my opposition to it. There is a different approach proposed.

The Pirate Party, a political party with roots internationally in countries such as the United States, Sweden, Scotland, Canada and the United Kingdom. The international website argues that “All non-commercial copying and use [of copyrighted material] should be completely free. File sharing and p2p networking should be encouraged rather than criminalized.” The group also criticizes the current copyright terms, saying they are absurd and that “nobody needs to make money seventy years after he is dead.” The alternative they propose is “a five years copyright term for commercial use.” Passionately, they argue for “a complete ban on DRM technologies, and on contract clauses that aim to restrict the consumers' legal rights.”  The UK-based political party offshoot follows a similar line, arguing for balanced copyright law. Their website is a bit more descriptive mentioning that the party would support peer-to-peer networks (which the party says supports lesser-known artists) and a right to a “format shift” (copying data from a CD to a portable media device). However, they note that “counterfeiting and profiting directly from other people's work without paying them will remain illegal.” That last provision could run up against those who want to help others.  There is no definite website for the United States pirate party, but their LinkedIn website gives some insight. That website says that want “abolition of the DMCA and related subsequent provisions within copyright law…rejection of the concept of online piracy…reform of copyright…abolition of Digital Rights Management…[and] reform of trademark.” 

I believe that Digital Millennium Copyright Act (DMCA) must be repealed and that non-commercial copying and use of copyrighted materials should be allowed. The government must not use the FBI, Immigration and Customs Enforcement or any other government agency to shut down parts of the internet. This would hurt the sharing of information that current occurs. Big Music would obviously oppose this measure since pirating would be partly legalized but that must be overcome. If these measures were enacted, then piracy online would fall because it would be legal instead. I do not advocate for making it legal for people to pirate and then copyrighted materials of others for a profit or the counterfeiting of goods for a profit. However, counterfeiting of goods that do not cause bodily harm should be allowed or should be focused on by authorities. Those counterfeited goods that cause bodily harm should be focused on by law enforcement.

The software piracy rate was 20% in the United States in 2007, #107 of 107 (nationmaster.com).  In Spain, according to Hollywood Reporter, it is much higher, being “over 77% of the digital content consumed in Spain in the first half of 2011 was pirated, marking a .4% climb from the same period to previous year [and] more than 98% of all digital musical content was downloaded illegally.” In 2010, DailyTech reported that peer-to-peer network piracy rates were 9-13%.  While efforts at trying to cut piracy on the internet like shutting down LimeWire (2010) and Megaupload (yesterday) have seemed to limit the amount of those downloading, people are moving to other sources such as YouTube. One major reason for this approach is because people support legalizing music online.

In 2003, a CBS News /New York Times poll asked 675 adults nationwide (18-30+ years) a number of questions on this topic. An even smaller amount answered the question about music file sharing. When asked "When it comes to sharing music over the Internet for free, which comes closest to your view?” An average of about 17% of all respondents, those 18-29 and those 30 and older said downloading music is always acceptable. Average of 43% of those from same groups said that downloading music should be sometimes acceptable. An average of about 35% said that sharing is never acceptable and about 3% said they didn’t know. The support for downloading was across the board. A poll the same year by the FOX News/Opinion Dynamics Poll of 900 people was a bit more promising. 61% of those 18-34 approved of “approved downloading music over the Internet” and only 35% disapproved of it. However, as age increased, people became more opposed to the idea (probably because they got paranoid or just wanted the status quo). Of those people 32% had downloaded music over the internet without a fee.  A poll of 2,600 Americans in 2007, reported by MSNBC stated an interesting conclusion. They wrote: “Only 40 percent of Americans polled…agreed that downloading copyrighted movies on the Internet was a "very serious offense."… 59 percent of Americans polled considered "parking in a fire lane" a more serious offense than movie downloading.”  

The approach of legalizing downloading is supported by a good mass of the people in every method, rising substantially from 2003 to 2007. On the other hand, Chris Dodd, a major lobbyist for MPAA, which wants this piracy laws in place, says that DMCA did not “break the Internet…deprive anyone of freedom of speech at all. And…did not curtail or stymie creative innovation in new technology.”(Hollywood Reporter) That’s what Big Music says. Privacy Digest had a different tact, writing about erroneous DMCA claims because of the problem in copyright enforcement. Part those problems stem from a component of DMCA, DRM or Digital Rights management. The website explains that DRM “restricts users' ability to share content or to consume it in a proscribed manner…has been largely disliked by end-users…creates a poor user experience and interferes with expected rights (under fair-use doctrine) [and allows] copyright infringement notices are needed precisely after "unprotected" content has already [disappeared].” 

Another website comments in the same vain. Questioncopyright.org notes that criminalizing downloads is not practical because there is a lack of jail cell space and “erodes one's civil liberties.” The major reason is because a phone could be tapped, a house could be put under surveillance and a computer could be seized. In addition, these measures have been used to “censor free speech when that speech is [contrary] to a copyright holder's financial interests” and has negatively affected researchers. Original copyright law, the cite notes, commercial transactions were prohibited but after the DMCA passed, then commercial and non-commercial actions were banned. As the website predicts, DMCA may have been just the beginning of a hard-nosed approach toward copyright, with the possibility of outlawing of peer-to-peer networks in the future. 

A few months after the legislation was passed in February 2001, Robin D. Gross commented on DMCA. On imaginelaw.com, he wrote: “On the controversial Digital Millennium Copyright Act (DMCA) took full effect, criminalizing the act of circumvention of a technological protection system put in place by a copyright holder -- even if one has a fair use right to access that information.” 

Two years ago, the Electronic Frontier Foundation wrote on DMCA as well. They wrote on its unintended consequences, in an article titled “Unintended Consequences: twelve years under DMCA” criticizing the law itself: “anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate competitors…Section 1201 has been used by a number of copyright owners to stifle free speech and legitimate scientific research…a number of prominent computer security experts curtailed their legitimate research activities for fear of potential DMCA liability…the movie studios effectively obtained a "stop the presses" order banning the publication of truthful information by a news publication concerning a matter of public concern...The DMCA, however, prohibits the creation or distribution of these tools, even if they are crucial to fair use...Until 2007, authorized digital music download services also utilized DRM systems that frustrated fair use expectations, and technical restrictions remain common for subscription services…The DMCA has frequently been used to deter legitimate innovation and competition, rather than to stop piracy…The DMCA's anti-circumvention provisions have also threatened to displace "computer intrusion" and "anti-hacking" laws, something that Congress plainly never intended…Years of experience with the "anti-circumvention" provisions of the DMCA demonstrate that the statute reaches too far, chilling a wide variety of legitimate activities in ways Congress did not intend…hindering the legitimate activities of innovators, researchers, the press, and the public at large.”

Panix.com takes a different approach. They note that “Under the old pre-DMCA copyright law, buyers of books, albums, and movie tapes had many rights [called fair use]:

1.  You may make copies for your own use.

2.  You may lend books, albums, and movies to your friends.  You may read a book aloud with your children.  You may invite friends over to dance to the music of your album.  You may view your movie with friends.  You may stand  in front of a room full of students and read the book, and you and the students may talk about the book.

3.  If you are a library, you may buy one copy of a book, and lend it out for free to anyone with a library card.  You may do the same with an album and also with a movie.

4.  You may make copies of parts of the book, the album, and the movie, in order to discuss it, to make fun of it, and even incorporate the part in a new work.

5.  You may sell the book, album, or movie to anyone you wish.

6.  Any time you want to read the book, listen to the music, view the movie, you may, without paying one cent more to the copyright holder.  You may do these things as often as you want.”

 As you can see, the current approach to piracy is not a good one. If the approach gets out of control with new laws such as SOPA or PIPA it is possible that like Russian entertainment producers cited by Hollywood Reporter, the U.S. government will ask Facebook to take down its copyrighted videos that are uploaded to its site. If the government doesn’t ask, it could possibly forcibly shut down Facebook (or parts of it in retaliation for non-compliance. In Spain a current law like SOPA is being proposed and it is unlikely what effect it will have but it is almost certain that Big Music and the entertainment industry will use it in their own efforts to push for more government control over the internet. Howard Zinn writes in his book, A People’s History of the United States quotes Grover Cleveland’s attorney general, Richard Olney, talking about the Interstate Commerce Commission. Olney explains: “The Commission…is or can be made, of great use by railroads. It satisfies the popular clamor for government supervision of railroads, at the same time that supervision is nominal…The part of wisdom is to not destroy the Commission, but to utilize it.” The same is true today with the internet. If the government regulated the internet, then it is possible that there would be collusion with industry just like with the Interstate Commerce Commission. As questioncopyright.org points out, artists, software engineers and others can still make money if there is more freedom of information like the ideas I have proposed. Garden State Community College’s website it states: “There is a great deal of debate about the DMCA and copyright law in the digital age.   If you disagree with the law, learn more about it and become involved in trying to change the law.” I hope you follow that advice and try to change copyright law it for the better, in a way that would benefit the citizenry at large, not the entertainment industry since this issue will affect every person that uses the internet. 

By Burkely Herman, Chief Correspondent