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With the increasing importance of the shift from traditional, more physical distribution methods to digital distribution, digital copyright piracy is one of the most crippling problems facing the entertainment industry. After all, with the so-called anonymity provided by the internet and the ability to make illegal copies of music or entire movies at the push of a button, digital piracy as an appealing choice to many would-be customers who can now live outside of their means.

Indeed, it is one that has caused the entertainment industries across the globe billions in revenue. It is no wonder that many copyright holders have attempted to stamp out these pirates through various means, such as appealing to the government to enact legislation or, as is often the case, to take legal action against the pirates directly.

In particular, the latter option has recently been exercised as copyright owners and their legal counsel

enacted campaigns that pursued individual end users in mass suits involving dozens of ‘Does’, both to recoup their losses from a direct infringer and to act as a deterrent to other would be pirates. These copyright owners and their legal support faced many challenges in their campaigns, problems that highlight the inherent difficulties in taking individual pirates to task for their infringement.

Brief Background and Overview

Copyright is the intellectual property that protects creative works. Under the Berne Convention, authors, performers and other artistes who contribute to the work have a right to commercially exploit their creations. This includes film productions, which are works that involve the creative contributions of hundreds, if not thousands of individuals. It is copyright which is the foundation in that the entire entertainment industry is built upon, and it is copyright infringement which undermines this foundation.

Digital piracy is the new form copyright piracy has taken in the 21st Century. As opposed to recording of films from television, illegal sales of pirated videotapes or DVDs, the internet has given digital copyright pirates an effective, sophisticated new distribution medium.

In particular, Peer to Peer site sharing software such as ‘Torrent software’, file sharing websites and illegal file streaming. Each means of distribution allows pirates to widely distribute copyright protected material to a wide range of individuals across a wide geographical area. This illegal copying of material is often done with the pretence of anonymity and often through channels that would normally otherwise be used for legal purposes.

Indeed, it has become so commonplace that an entire generation of consumers has grown up believing that digital piracy is simply part of the internet-culture, when it is in fact a very damaging illegal activity that is costing the industries it affects thousands of jobs and billions in revenue.

Difficulties in Pursuing Copyright Pirates

The rationale of a copyright holder seeking redress against infringers is very clear cut in the Berne Convention and the various jurisdictional legislation around the world. However the very nature of the internet, including its method of function and the persons involved, creates difficulties for copyright holders actually trying to enforce their rights against those involved in copyright piracy.

The largest party to digital piracy, the Internet Service Providers whose physical hardware is used to transmit the copyrighted material, have become increasingly difficult to hold liable for infringement due to ‘safe-harbour’ provisions offered by both legislation and case law. Service providers who have no ‘control’ or ‘knowledge’ over how their services are used by their clients to be held accountable for a copyright infringement perpetrated by the services they have provided.

The next identifiable party would be the illegal distributors of the copyrighted material themselves, such as the file sharing service Megaupload or online digital content index Piratebay. In this instance, copyright owners have been much more successful in seeking redress for their losses in the courts. However, actually getting a judgement for damages and other remedies and seeing it carried out are two different matters. For example, as in the case of Pirate Bay, there was much difficulty in securing Hans Fredrik Lennart Neij for trial. Even then, the ability of these individuals to pay the amount of damages actually incurred by the copyright owners is limited to their own finances. When the costs to the industry is in the billions, clearly more must be done.

It is hard to hold the service providers liable for the infringement due to legal exemptions. It is difficult to actually get the illegal distributors to pay the sum due to practical considerations. This has left many copyright holders with one other alternative; take actions against the end users who have downloaded the illegal material themselves.

Finding and Seeking Redress from Illegal Downloaders

There is a general strategy that is used by copyright owners and their legal councils when seeking redress against individual digital copyright pirates which is outlined as follows:

Firstly, locating the individuals who commit copyright infringement requires two things; specialised software that can be used to locate end users that have downloaded copyrighted material and, more importantly, permission from the courts and the internet service providers to use that software on the internet service provider’s records. Once access has been granted, the software will identify which of the internet addresses, and therefore which individuals known as ‘Does’, have illegally downloaded copyright protected material and generate a list of infringers to take action against.

From this list, a common strategy employed by copyright owners and their legal councils would be to issue large numbers of Letters of Demand to these stating ‘Does’. The letter informs the ‘Does’ that the copyright holder is aware of their illegal actions and will commence legal proceedings against them unless an amicable settlement can be reached, normally involving a monetary payment of some kind, and a promise that they will cease all illegal activity in the foreseeable future.

The monetary payment from these ’Does’ can vary from case to case, however in a vast majority of cases the ‘Does’, having been confronted with the knowledge that they have been found, will likely want an out of court resolution to protect their reputations, or out of guilt or genuine remorse.

The reasons for going after these ‘Does’ is twofold.

Firstly, the process of reaching out of court settlements with ‘Does’ produces results faster than its alternatives. It takes less time, effort and legal costs to reach a settlement compared to fighting a legal battle against the Internet Service Providers. The smaller settlement sums, compensated by the large numbers of ‘Does’, also ensure that the infringers are not likely to attempt to evade justice, as with the case of the owners of Pirate Bay.

Secondly, if the campaign goes well, the resulting media coverage showing that copyright owners are willing, and able, to enforce their copyright against individual copyright infringers would deter other possible digital copyright pirates from further infringing activity. This deterrence effect would thus prevent further losses from being incurred by the industry.

This strategy was successfully employed in several instances, including ODEX Entertainment and Voltage Pictures in Singapore. However, despite the successes of these campaigns, it was not without problems.

Public Opposition to Legal Campaign

It is an unfortunate reality that, despite digital copyright piracy being an illegal activity, that the general public and media will not support a strategy targeting end users, especially if a multinational film production company like Voltage Pictures is the copyright owner. Public backlash can come from a variety of sources, and the three of the most crucial ones are as follows;

Firstly, the online community values the so called ‘anonymity’ granted by them by the internet. Whether real or imagined, many internet users take it for granted that the internet is the proverbial ‘final frontier of free speech’, where they are allowed to say or do anything as they please largely without consequence. Any action tearing back this veil of anonymity threatens any net user who has ever taken comfort in it, and they will naturally react badly.

Secondly, given that copyright owners capable of employing these tactics are normally large companies with large amounts of financial resources, they may run the problem of being viewed as ‘bullies’ that are ‘unjustly’ coming after the ‘little guy’ with the proverbial legal hammer. Allegations of ‘bullying’, ‘black mailing’ and other allegations will be thrown around. This is a narrative that the media knows will resonate with their readers, and it is a story they will propagate and encourage.

Thirdly, digital copyright piracy is largely seen by the mass public as a victimless crime. This is largely due to public perceptions of the entertainment industry; celebrities enjoy lavish, expensive lifestyles. The box office routinely reports opening nights where the takings number is in the tens of millions. Vast merchandising and advertising campaigns give consumers the notion that the entertainment industry has a limitless source of money. One person downloading a few movies can’t possibly impact the entertainment industry. This is untrue of course, and the general public isn’t aware of this fact, nor of the actual cost to the industry caused by these illegal activities.

Because of the above reasons, many copyright holders and their legal councils may find themselves being assaulted by bad publicity. Worse still, publicity that can end up becoming disruptive to the normal business operations of the copyright owner, as in the case where ODEX’s website was hacked as a reprisal for their legal campaign.

More concernedly, the copyright infringers and general public can become so threatened that they can form an entire community to resist attempts to force them to pay. For example, Die Troll Die.com is a website and open forum where opponents to copyright enforcement campaigns gather and share resources, both legal and otherwise. While the extent of the website’s success is debatable, it’s mere existence shows what can happen if infringers are threatened into action.

As such, it is imperative that a media control strategy is used for any campaign of this nature.

Legal and Regulatory Obstructions

In addition to the public relations issues, there are also problems associated with the legal aspect of the campaign based on past experiences, with two such issues outlined below:

The first legal issue would be the claims by the defence that the campaigns are ‘speculative’, as was unsuccessfully argued in both the ODEX campaign in Singapore and used more successfully in the Dallas Buyers Club campaign in Australia. The defence is normally used at the stage where copyright owners are attempting to acquire data from the Internet Service Providers, and it essentially argues that the nature of the claim and the number of defendants involved in effect means that the campaign is a ‘fishing expedition’ designed to unfairly target end users with speculative invoicing. Indeed, as of time of writing, it is for this reason that efforts in Australia by Voltage Pictures have come practically to a standstill.

The second issue, which also greatly impacts the chances of reaching a successful settlement, would be false or misleading legal information spread throughout the community. Past experience has shown Infringers who have been caught illegally downloading material will be more likely to see quick and amicable settlements if they do not have any preconceived notions of what a fair sum should be. There notions can be spread by information from other infringers, the mass media or even other ‘legal experts’ who have accidentally misspoken.

Both these issues are some examples of the legal hurdles that can impact the success of the campaign. Fortunately for copyright holders, there are ways to get around these hurdles.

Overcoming Practical Problems

In spite of the above mentioned problems, both the ODEX Campaign and the Dallas Buyers Club Campaigns have enjoyed success in getting restitution from infringers. This is due to strategies that copyright owners and their legal councils developed and used to overcome these hurdles.

This article is not at liberty to share all the solutions to the above mentioned obstacles to copyright enforcement against infringers, however outlined below are a few of the more well-known ones that have been employed.

The primary method of overcoming the public relations issues would be education of the public and the infringers to the seriousness of digital copyright piracy.

Many infringers are willing to carry out illegal downloading because they believe it is a victimless crime. However, it is possible to disarm them of this notion by showing them the impact their actions have on the workers of the industry; instead of focussing on the production companies that have money to spare, direct attention to the employees and individuals who rely on the entrainment industry for their income and who have made sacrifices for their work.

For example, the movie Dallas Buyer’s Club only had a hairdressing budget of USD 250 due to the willingness of their makeup crew to wait until the movie’s success to get reimbursed. This sadly did not happen when the movie did not perform well, and as such they have been short charged.

This narrative is quite effective in counteracting the bad publicity caused by the media as it weaves a story of an affronted individual needing justice, rather than a large company seeking profits. When the public understands what they have done wrong, that digital copyright piracy is not a victimless crime, reports have shown that they will be less likely to commit infringing actions. This extends to the ‘Does’ identified by the campaign, who might even become remorseful for their actions and voluntarily reach a settlement without further complications.

As to the legal issues, there are strategies and means that are employed by legal firms to overcome legal obstacles. Due to the sensitive, confidential nature of this information, only the most general strategy will be discussed. This overall strategy is to demonstrate to the courts and the public the sincerity of the cause by placing only the most blatant and frequent copyright infringers before the court’s notice.

Rather than a ‘fishing expedition’, copyright owners and their legal counsels would carefully collect and analyse the data secured from the Internet Service Providers and only pursue a limited number of individuals who have repeatedly downloaded illegal material from a variety of sources, not just the copyrighted material. This is no ‘fishing expedition’; the ones placed before the court are pirates, ‘repeat offenders’ who have consistently and wantonly flaunted copyright laws, and now have been taken to account.

This would of course require time, effort and investment by the copyright owners and their legal counsels to ensure that the correct infringers are included in the campaign, however the sincerity of the effort will show the courts the authenticity of the cause.

Conclusion

There are other strategies and methods employed by the copyright holders to overcome obstacles that prevent them from seeking justice, just as there are new obstacles that will emerge with each passing day. However, what is clear is that identifying a copyright pirate is merely the first step in an ongoing battle against digital copyright piracy, one that has many practical considerations that anyone wishing to take part should be aware of.

Biography

Samuel Seow is the Managing Director of Samuel Seow Law Corporation and is also Foreign Legal Advisor to Seow & Associates. Mr Seow’s expertise is in the field of intellectual property law and general commercial and corporate law. He also has several years of experience dealing with a wide range of property related transactions, with special focus on the application of these laws to the entertainment, arts and media industries. Mr Seow is a much recognised name in these industries. In 2010, he received the Spirit of Enterprise Award, given out annually to a select few in recognition of entrepreneurial spirit in Singapore.

SINGAPORE

Enforcement of Copyright Against Digital Piracy: Practical Considerations for Tackling Individual Digital Pirates

Written by Samuel Seow,

Samuel Seow Law Corporation

Samuel Seow

In essence, this article discusses the legal background behind the copyright claims used by law firms against digital pirates, the associated practical difficulties they face and finally arguing for the moral basis of enforcing copyright against digital piracy.

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