Piracy - The Ethical and Legal Dilemma on Sharing of Copyrighted Information

In 1998 on college campuses around the country a revolution had taken place involving technology, media, and a little-known piece of software called ‘Napster’. Harnessing the advancements in broadband internet capabilities and the concept of file-sharing or peer-to-peer (P2P) Napster allowed users to upload and download music files from other users in an unlimited fashion.

Napster soon came into legal hot water with media and record labels and eventually in July 2000 was sued for copyright infringement by the heavy metal band Metallica in ‘Metallica, et al.

v. Napster, Inc.” in which a preliminary judgment favored Metallica and ultimately a settlement was reached (1). The case determined the music sharing that users were engaged in was not legal because copyrights give the recording studios exclusive rights to distribute and reproduce the work. The case also determined that users also violate copyright law when they distributed the music to others without permission through the Napster website (2)

Napster was the forerunner for the modern era of file sharing and P2P file sharing most widely utilized via “torrents” and the practice of “torrenting”.

A torrent file is a computer file that comprises metadata about files and folders to be circulated. A torrent file is like an index, with information on content and the address of worldwide computers available with the content.

Torrents can be downloaded via a program where links and the torrent themselves can be found on a variety of websites. The most prolific being Pirate Bay, in the modern era of file sharing, Pirate Bay has become the modern-day Napster.

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Due to its nature of file-sharing of copyrighted media, information, and other files, Pirate Bay has been in and out of legal issues, and in some countries, the domain is blocked due to its illicit nature. Pirate Bay’s name alludes to the act of “piracy”, which is the term used for the illegal acquisition and sale of copyrighted media.

In May 2006 a raid against Pirate Bay occurred and prompted the allegations of copyright infringement. On 17 April 2009, the three founding members of Pirate Bay were found guilty of assistance to copyright infringement and sentenced to one year in prison and payment of a fine of approximately 4.2m USD (3)

Despite the legal infractions and imprisonment of Pirate Bay’s founding members, a plethora of other torrent websites exist. Their existence is claimed by the media and entertainment industry to have resulted in massive losses of potential revenues associated with box office ticket sales, digital downloads, and Blu Blu-Ray or DVD purchases. Carnegie Melon released a 2014 peer-reviewed study which found that the occurrence of piracy before release leads to a 19% loss in projected revenues to post-release piracy (4). Based on this figure, domestic box office sales in 2014 were $10.35 billion (5), meaning that a total of $2.4 billion was potentially lost.

The video game industry is also a victim of torrenting. Irdeto, a company specializing in digital platform security claimed significant losses by the game industry during the release of new video game titles. Irdeto tracked the downloads of a major sports title on P2P networks after the title, which did not include anti-tamper protection, was pirated on the same day of its release. During the first two weeks, Irdeto detected over 350,000 torrent downloads of the illegal copy of the title. Given the retail price of the game, this puts the total potential loss of revenue from P2P downloads at just over $21 million (6).

In 2016, music piracy was claimed to have impacted the European Union’s economy by €170 million. Owing to account tax implications, and additional €63 million impacts on government income (3).

Legal ramifications

Downloading media for personal use could potentially result in several legal conflicts associated with Copyright and Anti-Piracy laws. The definition of copyright is the right to copy. In other words, a producer of a work of art, media, music, or any other original creation grants certain rights for use. This practice is also referred to as “licensing”. In most cases, these rights and licensing are limited in nature to the usage and sale of the material. For example, an artist may create a logo for a major retail company. The artist owns the right to the image created and can choose to provide the company with either limited rights associated with licensing or unlimited rights to copy the image for specific uses. If the artist grants unlimited rights, then the company can act freely without boundaries in the usage of the material.

The Copyright Act of 1976 is the primary legal security blanket that protects original work and content. Under section 102 of the Act, the copyright law extends to ‘original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.’ It is also literary, musical, dramatic, choreographic, pictorial, graphic, and sculptural works, motion pictures, other audiovisual works, and sound recordings.

Another court case in which the result of copyright infringement was associated with media was Perfect 10, Inc. v. Giganews, Inc. The case involved the unauthorized distribution of photos over Giganew’s server. In this case, the defending party, Giganews was not held liable for the charges against them from the complainant Perfect 10. The court found that Giganews did not engage in the volitional conduct necessary to be culpable for the unauthorized display, distribution, and reproduction of Perfect 10’s images. The Ninth Circuit thus declined to hold Giganews liable for contributory copyright infringement, holding that Perfect 10 failed to raise a triable issue of fact as to whether Giganews materially contributed to or induced infringement of Perfect 10’s copyrights (8).

There is an argument against the usage of copyright material associated with licensing relative to the Fair Use Act as well as various civil liberties of personal freedom. In addition, there are oppositions to copyright laws even to the extent of groups that are campaigning for the abolishment of copyright laws such as Pirate Cinema.

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the legal framework for determining whether something is fair use and identifies certain types of uses such as criticism, comment, news reporting, teaching, scholarship, and research as examples of activities that may qualify as fair use. Section 107 calls for consideration of four factors in determining fair use; purpose and character of the use, nature of the copyrighted work, amount and substantiality of the portion used about about the copyrighted work, and the amount and substantiality of the portion used about peer-to-peer the copyrighted work as a whole (9).

Moral and Ethical Impact

Most users of peer-to-peer, file-sharing do not redistribute information for monetary gain. Instead, most unknowingly become “seeds” and are unknowingly a provider of files they have recently downloaded themselves and thus become an uploader allowing other users to download the same file in pieces. Because users are not selling downloaded files for profit, a common perception is that they are sharing something that one person purchased but on a mass scale. It could be argued that it is no different than recording a song from the radio onto a cassette deck in the 1980s,

Does the film, music and game industry? lose millions in revenues because of piracy and copyright infringement? Wouldn’t those who partake in torrenting or piracy do so mainly because of financial reasons? If the offender is not even able to purchase the video game, ticket, then or DVD then what revenuetheirllyis lost? Perhaps the losses claimed by the film industry are merely an excuse to explain why ticket sales are decreasing. For example, in 2014 box office ticket sales were at their lowest since 1995 (5).

The act of piracy bodes the argument for copyright infringement. In the modern era, riddled with media conglomerates such as Viacom, Disney and Comcast there are endless resources to ensure copyright infringement does not occur. But this solicits the question onof,  the passe, for example, Walt Disney Studios enjoyed large success in the 1940s, with animated films such as Cinderella and Snow White. None of these stories were written by Disney, they were fables and fairy tales. But Disney took what was considered public domain and essentially copyrighted the imagery associated with these characters. Does this mean Walt Disney was unethical? Smart and cunning, but unethical is not what one would perceive (10).

Conclusion

Unfortunately, from the standpoint of the artist, producer, corporation or essentially the owner of the copyright, there is a financial impact. Maybe not to the extent that the film industry claims, but a material amount albeit. Anti-Piracy Laws and Copyright Laws also see otherwise, aside from the conceptual aspect of theft. The redistribution of copyrighted materials therein lies the offense against the Copyright Act.

While the financial impact toon the entertainment industry is subjective due to the motives of the offending party. In many cases, pirated media is “bootlegged”, or sold to a bidder, on the secondary market for a reduced price. If this practice was completely eradicated and the consumer had no other choice than to buy media from the distributor thenarethen are obviously revenue would be generated by the entertainment studios who claim the loss.

Legally, torrenting or pirating media files are not protected by The Fair Use Act assuming that the involved party is receiving the completed piece of material. Since none of the activities of torrenting would qualify within the four factors of the Fair Use Act it is apparent that there is copyright infringement. The definition of copyright is the right to copy. In other words, a producer of a work of art, media, music, or any other original creation grants certain rights for use. In most cases, these rights are limited in nature to the usage of the material.

Ultimately, the acquisition and usage of the copyrighted material are illegal, and those involved not only impact the large media conglomerates who own those copyrights. But ultimately the employees and personnel who work in the industry lose out on benefits associated with high earnings from their company such as raises, bonuses, or, avoidance of layoffs. While torrenting may seem victimless, it is far from it.