Tag: piracy

Online Copyright Enforcement Is Not Just About “Artists”

Most conversations (i.e. arguments) about copyright tend to revolve around artists in the traditional sense—musicians, authors, filmmakers, photographers, etc.—wanting to make a living from their work.  To those types of creators, the often dismissive responses from the tech-funded intelligentsia range between feigned sympathy and unvarnished antipathy for any author who would presume to earn her living making “art” in the first place.  

Somewhere among those personal opinions, creators have been offered a litany of unsolicited advice as to how they might better understand the new economic realities of the digital age and, thus, learn to benefit from avenues of sustenance newly opened, rather than complain about old avenues that have been closed by rampant piracy.  The classic example—the one that inspires so much gallows humor among creators—is the imperative that, for instance, musicians should sell more tee shirts rather than cling hopelessly to the idea of ever selling music itself.    

But, let’s look at this theme in a different context, especially with regard to the number of people now working in that insecure stratum known as the “gig economy.”  What if you heeded the wisdom of the academics, tech pundits, and internet billionaires and launched a venture that channels your creative work as merchandise? In other words, what if the way you sell your art is literally as tee shirts?  Do the tech companies who promised you the opportunity of low-cost entry support this venture by facilitating the enforcement of your intellectual property? Meh.

After you invest the sweat equity and financial capital to create and register your original designs, then market, produce, and ship the goods, you can be sure that once your brand attracts customers, it will be counterfeited through ecommerce portals.  This is a near certainty.  

The counterfeiter/pirate will often be foreign-based, usually in China, and they will post pages on Amazon, eBay, Alibaba, etc. offering knockoffs that not only infringe your copyrighted designs, but also sell those pirate goods on inferior products.  So, while the counterfeits are eating into your market, you will also receive calls from customers complaining that you sell poor quality merchandise.  Or perhaps they’ll just give you bad reviews on the same wonderful crowd-sourcing platform that empowered the counterfeiters to rip you off in the first place.  

Your ability to keep web-enabled counterfeiting and piracy from driving you out of business will depend on a number of factors, namely whether your company has grown large enough to absorb the cost of enforcement plus lost sales.  Even for a decent-sized business (say $1-2 million in gross sales), these costs can be sufficient enough to have a substantial negative effect on the operating resources of the enterprise.  

If trademarks are infringed, enforcement is a little easier to address as a holistic process; but quite often, a counterfeiter will exclusively infringe copyright by pirating original designs for tees, hats, towels, mugs, etc.  This means someone—either an employee or outside counsel—will have to identify each of the items infringed, affirm their registrations, fill out the platform’s complaint forms, and follow the platform’s various steps to request removal of the infringing URLs from the site. 

The steps required by each platform can either be fairly straightforward or a unnecessarily labyrinthine, but the sites will generally comply with removals in a timely manner.  Nevertheless, the small business owner in this case has the same problem as the musician whose work keeps getting uploaded to YouTube—the game of Whack-a-Mole. The infringements you manage to remove in a period of days will soon reappear at new URLs with apparently new (but probably the same) sellers offering your products.  And you get to do the whole process again.  

So, the question naturally arises, why don’t the major online retailers use their astounding technological prowess to better automate the identity of likely infringers?  It is true that Amazon allows a legit merchant to upload a product shot and have the system search all the places that image appears. This is not a useless tool, but it still implies a lot of extra, costly labor for the business/copyright owner. 

Why doesn’t Amazon, for instance, provide a more proactive interface for registered merchants and manufacturers similar to YouTube’s Copyright Match for the community of YouTubers, which alerts a creator when her videos are used by other YouTubers?  For instance, how hard is it for an Amazon or EBay to interpret data comprising  a) a matching photo, b) a price point about 80% less than it should be, and c) a seller based in a piracy-rich location like China, and flag the URL as a likely infringer?  This is too complicated for the most powerful computer companies in the world?

These are corporations that harvest and monetize the most granular data about us as consumers and private citizens.  Have a casual conversation with someone about eyewear in the vicinity of your phone and, like magic, you will soon be served an ad for eyewear.  Somehow, we accept this creepy invasion with a resigned shrug while simultaneously choosing to believe that these companies simply cannot analyze a basic data relationship between a product-maker and its legitimate products. 

Whenever takedown/staydown proposals have been made in the context of the usual copyrighted works like sound recordings, the internet industry and its network of pundit(s) counter that any technology used to identify repeat infringements will be too error-prone, will not be able to identify when a given use is a fair use, and will inevitably stifle free speech.  These complaints are debatable enough in the usual context, but such considerations do not apply even hypothetically to the role copyright plays in this kind of counterfeit merchandise.  

If an online retailer were to more systematically remove repeat infringers from E-Commerce sites, they could alleviate some of the burden for start-up and smaller companies.  And since this kind of entrepreneurism is exactly what the web industry claims to have enabled, it does seem like the right thing to do.  

Of course, this has always been the fine print in Silicon Valley’s generous offer of free-to-use platforms for new, independent enterprise. Their interest in either ignoring copyrights, or even funding efforts to weaken copyright law, has always been an underlying flaw in their ebullient commands to “embrace the new models.”  In reality, however, even if your rock band really could offset the loss of not selling music with the sale of tee shirts, the tees themselves would be infringed, and the major retail platforms will apparently be of very little help.

Dragon Box Sued by New and Traditional Film Studios

Picking up on the piracy-doublespeak theme of my last post, let’s highlight a favorite talking point among piracy advocates and apologists, the one that goes like this: If the major producers were just smart enough to make works available conveniently and affordably, people would stop pirating. That was always a lie. And it’s been proven a lie by the filmed-entertainment industry because a huge volume of content—more than any normal person has time to watch—has been made conveniently and affordably available, and yet piracy continues to increase. More than that, piracy has become so sophisticated that potential new users of pirate sites don’t have to be sophisticated at all.

Until fairly recently, a user generally had to be aware that he was visiting an infringing site to illegally download or stream a motion picture or TV show. If he was committed enough to his piracy, he’d have to follow some of the trends, know which pirate sites are doing what, invest in a VPN to hide his tracks, and spend some time searching for specific titles. Now, the process is made much easier with device-based piracy, often referred to generically as “Kodi Boxes,” after the name of one of the first products to enter this market. Essentially, these devices work like an AppleTV or Roku, but because they’re built on open-source operating systems, third-party “add-on” software was made available almost immediately to turn these devices into piracy boxes.

With add-on software, the user gets a Neflix-like graphic interface offering nearly any title he can think of for free. What the device does in the background is locate the target material on a pirate site’s server somewhere in cyberspace and then stream it from that infringing location via the box to the user’s screen. It’s all very clean and prettied up just like a legit product, requiring no more savvy than the use of a TV remote. It’s so easy that a small child can steal cartoons in her pajamas on Saturday morning without waking Mom and Dad for help.

Enter Dragon Box

On January 10, a complaint was filed in California District Court against developer Paul Christoforo and reseller Jeff Williams of Dragon Box—a device pre-loaded with piracy software and which is overtly advertised to consumers as a substitute for paying for cable, Netflix, Hulu, or any legal supplier of filmed entertainment, including online gaming. Plaintiffs, which comprise Netflix, Amazon, and six major motion picture studios, allege that Dragon Media Inc. intentionally facilitates and induces mass infringement of their works via the function of Dragon Box and the manner in which it is marketed to the public. Here’s the sample ad cited in the complaint:

That ad alone is sufficient to imply that this case probably won’t last very long—meaning Dragon Media Inc. won’t last very long because they don’t seem to have a claw to stand on. Advertising a device that delivers on a promise to enable consumers to watch subscription-based content without said subscription is about as clear-cut as selling bootleg DVDs out of a warehouse. I’m frankly surprised the defendants imagined they’d get very far with this one, operating out of Carlsbad, CA and blatantly promoting illegal access to just about every kind of media content available. Beyond the eight plaintiffs in this litigation, Dragon Box’s advertising implicates the sports and news interests, the cable and satellite providers, and so much more! Their interface even offer a menu selection called “In Theaters,” thus facilitating and promoting access to pirate streams of movies weeks or months ahead of their release on digital platforms. Because freedom I guess.

I imagine this case will conclude rather quickly with a summary judgment for the plaintiffs. It’s very hard to imagine Dragon Media sustaining a reasonable defense, let alone a prolonged one against basically the entire film and TV-producing universe, both large and small. In fact, because these devices are sold as a for-profit venture, providing a product designed to enable mass copyright infringement, the defendants should be glad not to facing criminal charges, rather than a civil suit. Of course, this probably won’t stop the piracy advocates from concocting some theory as to why Dragon Box is perfectly legal.

Piracy Boxes Change the Landscape

One of the reasons, piracy advocates convince themselves and others that their actions are harmless is that the damage done thus far tends to be relatively obscure. When piracy causes an independent filmmaker to lose the margin between profit and loss, her story is dwarfed by reports that Hollywood’s millionaires are still making millions. Or when producer Martha de Laurentiis blames piracy as a major factor in the cancellation of a hit TV show, and it’s just one anecdote in a market that is clearly replete with content.

The big picture gives lie, the pirates will say, to the premise that piracy does much harm at all. And this conclusion then justifies the claim that copyright enforcement in the digital age is inherently draconian. These are the climate-change deniers among piracy advocates—the ones who cannot imagine how relatively small examples of harm imply that piracy, like all forms of harm, has a tipping point. Clearly, the millions of dollars invested in new production depend on a substantial majority of the market not pirating.

Meanwhile, we are currently witnessing an expansive and speculative period when companies like Netflix and Amazon are spending a lot of debt capital to produce new works and grow market-share, with only their subscription/rental platforms as revenue sources. I stands to reason that if a piracy-box market attained a certain volume, this would be an even greater threat to the digital-only producers than it is to the traditional studios releasing movies in theaters etc.

And, no I don’t care about Jeff Bezos either. In fact, I’m not a fan. But I do care about the creative professionals Amazon has to hire to make the recent Golden Globe winning The Marvelous Mrs. Maisel, or whatever else they produce next. And it’s patently absurd to assume that production will simply continue to grow and innovate if piracy continues to increase toward the tipping point, wherever it may be.

In this regard, devices like Dragon Box have tremendous potential to accelerate piracy toward the threshold of more demonstrative market harm because these boxes make access to pirate sites so easy, seamless, and invisible. Presumably, a plug-and-play device marketed in this way will draw consumers who would not otherwise engage in piracy. And if it were allowed to mature, this is a dragon that could easily burn up all the crops. Fortunately, I predict this case will conclude rather quickly and serve as a deterrent to the next “entrepreneur.”

TorrentFreak Still Selling Piracy as Ideology

I guess it’s pick on Andy at TorrentFreak week.  (Sorry, Andy. ) But a recent blog of his titled No Level of Copyright Enforcement Will Ever Be Enough For Big Media begs a response.

Citing TF’s decade of experience covering the piracy battles, Andy repeats a familiar narrative that because piracy will never stop, and because pirates will continue to innovate, the major rights holders will never stop wanting more “draconian” copyright laws—laws that will threaten internet freedom but will not mitigate piracy.  He says that history teaches us these laws will fail in their purpose but will continue to fuel “justifiable” outrage among users, making enemies of prospective consumers for creative works.  “No one wants a minefield of copyright law. No one wants a restricted Internet. No one wants extended liability for innovators, service providers, or the public. But this is what we’ll get if this problem isn’t solved soon. Something drastic needs to happen, but who will be brave enough to admit it, let alone do something about it?” he writes.

But brave enough to do what about what exactly?  Andy describes a landscape in which pirate technology is becoming more sophisticated and more accessible—even while he credits piracy with fostering affordable, legal services like Netflix, Spotify, Hulu, etc.  Aside from being historically inaccurate—because these streaming platforms were not a response to piracy—Andy doesn’t seem to notice that there is no solution to the problem he describes.  Because the crux of what he’s saying leads one to the conclusion that no matter how affordable and accessible a vast library of works becomes, people will still pirate—a lot.  So, the real title of his post should be No Amount of Free Content Will Ever Be Enough For Some Consumers.

The major flaw with the post is that it’s predicated on a longstanding bit of revisionist history written by the “file-sharing community,” which continues to repeat the campfire legend that piracy was a market response to the excesses and greed of Big Media.  But although the 1990s did reveal plenty that was wrong with major media corporations, I’m calling bullshit on the post hoc assertion that this was a significant factor in the adoption of Napster beginning in 1999.  People used Napster because it was cool and free, not because there was a collective sense of rebellion against corporate producers of music and movies.

I’m from the 80s. We bought a lot of music on vinyl and CD, and I don’t remember any of my peers feeling particularly ripped off by the industry—at least not any more than young people feel ripped off by everything.  But if Napster had been introduced while we were in college, I have every confidence we would have been all over it. A technology that turns a personal computer into a free jukebox?  Hell yes a bunch of teens and young adults are going to think it’s the coolest thing ever invented. And it will only be after some ethical doubt about stealing music creeps into someone’s consciousness that the rationalizations will follow—including the self-affirming lie that we’re only stealing from greedy corporations and not the artists. Right after a new band called the Red Hot Chili Peppers played our dining hall, we’d have been “Napstering” their songs and devising elaborately lame explanations for why “sharing” their music was better than buying it.

The false narrative that piracy represented a socially conscious response to corporatism morphed into the mantra per ad nauseaum that any measure proposed to mitigate piracy will always be the antithesis of “internet freedom.”  The underlying hypocrisy of this point of view is that it willfully ignores the fact that far from being an anti-corporatist “movement,” piracy merely enriched two different categories of corporatists—one, a group of outright thieves; the other, stakeholders in giant internet platforms.  As musician/activist David Lowery wrote in 2012, the new boss (Google, Spotify, etc.) is worse than the old boss (traditional labels, studios, etc.); and if Andy and the “file-sharing community” want to take credit for something, they can take credit for that.

Ultimately, though, Andy fails to recognize that as long as any rule of law—from copyright enforcement to a right-to-be-forgotten to an anti-trafficking provision—is described as anathema to “internet freedom,” there is no conversation to be had.  At least not with anyone who thinks as he does.  Because the logic he presents is that these harms are the price we pay for “freedom,” which is some ultra-libertarian, techno-centric nonsense long overdue for tossing into the Failed Ideas bin.  2017 demonstrated for many (though probably not enough) that the wildwestness of the internet isn’t exactly healthy for democracy—that just like democracy in physical space, freedom is actually sustained by certain boundaries.

Meanwhile, on a purely practical note—one I’ve alluded to the past—who are all these leisure-class consumers with so much time on their hands that they need to pirate content?  Just for filmed-entertainment, I can think of at least a half-dozen new titles that I haven’t had time to watch yet on Netflix, Amazon Prime, and Hulu; and by the time I get to those, there will be more material released.  The market is growing very rapidly, with the new streaming platforms developing some of the best new work ever made. But we can assume that piracy is also a greater threat to the streaming-only platforms than it is to traditional producers with other avenues of distribution.  Note that Netflix and Amazon top the list of plaintiffs in a lawsuit filed January 10th against the makers of Dragon Box—the latest in sophisticated piracy devices to enter the market.

More about Dragon Box in a future post; but for now, I can’t help but think that editorials like this one from Andy are sounding a little out of touch—a bit “clinging to old models” if you will. Piracy itself may not be on the wane, but the rationales used to justify it sound weaker than ever in context to the changing media market and in context to some of the hard realities of what many call “internet freedom.”  So, to the extent Andy’s post is a call to action, whatever action he imagines cannot proceed based on a history that never really happened.  It’s time to put away the childish thing that says piracy = freedom.

Photo by cienpies.