Searching for Buried Treasure Abroad: How Better International Cooperation Can Help Decrease Internet Piracy (Part I of II)
By: Rajan Patel*
The pirates of the 21st century plunder more than the pirates of the 18th century ever did. Copying and distributing content worth billions of dollars online, modern-day pirates cost movie studios, music companies, and content creators an astronomical amount of money. While Internet pirates have traded in their cutlasses and ships for keyboards and high-definition copies of “Blade Runner,” the impact they have is tangible and growing. For instance, season seven of HBO’s “Game of Thrones” received over one billion illegal views. To put that into perspective, during the season seven premiere alone, the illegal audience outnumbered the legal audience twelve to one.
Internet piracy has become a legal conundrum wherein countless individuals engage in illegal activity with virtual impunity. Still, it is important to note here the difference between the casual Internet user that occasionally accesses pirated content and the actual pirates that illegally copy and distribute content online: the latter will be the primary focus of my discussion. In Part I of this Article I will examine the current state of US anti-piracy law and further illustrate exactly how countless individuals evade the law. In Part II, which is forthcoming in Spring 2018, I will then frame Internet piracy as a global epidemic and further argue that the international community must foster better cooperation to fight this battle more effectively.
What is Internet Piracy?
Commonly defined as “[t]he illegal reproduction and distribution of copyrighted material on the Web,” Internet piracy has developed alongside the proliferation of the Internet. Pirates traditionally operate by “ripping” content from DVDs, CDs, live television, and digital files, and subsequently uploading the content online. Over the past twenty years, the most common form of Internet piracy has been peer-to-peer (“P2P”) file sharing. P2P file sharing works by creating a network between multiple computers, which in turn allows individual users to share computing power to upload and download content. The primary vehicle for P2P file sharing is known as “BitTorrent,” and individuals utilize these programs to download “torrents”. Once downloaded, torrents contain copies of movies, audio tracks, books, video games, computer software, and other types of digital files.
Recently, however, illegal “streaming” websites have become more popular than BitTorrent in the piracy world. Streaming websites host content ranging from live sporting events to HD movies, all of which can be directly streamed to users’ personal devices. An emerging trend in streaming piracy is for users to “stream rip” content, where an individual uses a software program to create a permanent file of streams found on websites like YouTube and Spotify. Another emerging trend is the use of “Kodi boxes,” which allow users to stream illegal content directly to their televisions.
And though web content has become much cheaper and easier to download with the growth of iTunes and Amazon, many individuals still make use of pirated content. Common reasons for this include: (1) they can’t afford paying for content; (2) they don’t want to pay for content; (3) the content is not available in their region; (4) they feel that the creators already make enough money; and (5) they see other people doing it too. In the end, these excuses guide an illegal industry that, according to one study, costs the US economy $20.5 billion annually.
Current State of US Anti-Piracy Law
At its most basic level, Internet piracy is synonymous with copyright infringement. In the United States, copyright law has undergone three major changes coinciding with the Copyright Acts of 1790, 1909 and 1976. Under the Copyright Act of 1976, copyright holders have the “exclusive right” to reproduce and distribute copies of their work. Further, the Act protects all “original works of authorship fixed in any tangible medium of expression.” To prove a violation of copyright infringement, the copyright holder must establish that (1) the copyright was valid, and (2) an infringement of the copyright transpired.
While the Copyright Act of 1976 formed the basis for modern-day copyright law, Congress’ first attempt to target online copyright infringement was the Digital Millennium Copyright Act (“DMCA”) of 1998. Created to modernize US copyright law and comply with the 1996 World Intellectual Property Organization (“WIPO”) Copyright Treaty, the DMCA “sought to provide a framework for dealing with piracy in the age of the rapidly growing Internet.” Of the many complex regulations the DMCA enacted, the “anti-circumvention” measures and the statutory safe harbor provisions arguably had the largest impact.
The anti-circumvention measures made it unlawful for individuals to tamper with access-control technologies, such as Digital Right Management (“DRM”), which prevent users from copying and distributing content. In contrast, Congress created the statutory safe harbor provisions to protect Internet Service Providers (“ISPs”) from “liability for copyright infringement for content uploaded on their sites . . . so long as the ISPs implement[ed] a mechanism designed to remove infringing content.” This, in turn, produced the “notice-and-takedown” mechanism codified in Section 512 of the DMCA. Section 512 requires ISPs to “expeditiously” takedown illegal content once notified of the infringement by a copyright holder. Although generally effective at removing content unlawfully and directly uploaded online, the DMCA notice-and-takedown mechanism is incapable of targeting P2P file sharing and content streamed live to users because the content is not directly posted online.
The US legislature grappled with online copyright infringement on one other occasion with the Stop Online Piracy Act (“SOPA”) and the PROTECT IP Act (“PIPA”) of 2011. SOPA and PIPA both sought the end of online piracy by going past the DMCA and allowing the government to restrict access to entire websites based on copyright infringement. From the government perspective, the Acts would simply protect content creators. From the user perspective, however, the Acts amounted to mass online censorship and a violation of free speech. As SOPA and PIPA would also hold site operators like Google “on the hook” for hosting pirated material, it was argued that the bills would have had a chilling effect on innovation in the tech industry as well. In protest of SOPA and PIPA, over 75,000 websites participated in a mass “blackout” in 2012. As a result, Congress folded to growing public scrutiny and indefinitely postponed both Acts. And though SOPA and PIPA have remained dormant for the past five years, online pirates on the other hand, have not.
An additional wrinkle in US copyright law is the tension between the DMCA safe harbor provisions and the doctrine of “secondary liability” in copyright infringement. Further described in BMG Rights Management (US) LLC v. Cox Communications, Inc., the U.S. District Court for the Eastern District of Virginia held that an ISP was secondarily liable for a customer’s act of copyright infringement. In Cox, the music publishing company BMG brought suit against Cox for providing service to individuals that illegally downloaded BMG music on numerous occasions. Reasoning that Cox failed to terminate the accounts of “repeat infringers” and acted with “willful blindness” towards BMG’s rights, the court concluded that the DMCA safe harbor provisions did not apply to Cox in this instance. Further, in determining willful blindness, the court noted that mere knowledge of allegations rather than actual knowledge of infringement was sufficient to meet this element. In turn, the jury awarded BMG $25 million in statutory damages. Though the case is still pending appeal in the Fourth Circuit, Cox has the potential to change the entire landscape of US anti-piracy law: if the Fourth Circuit finds in favor of BMG, there is a strong possibility that many ISPs will have to start cracking down on piracy to avoid paying large penalties in the future. While only a possibility, the decision in Cox may prove to be a watershed moment in US copyright law.
How Pirates Evade the Law
Generally, pirates are a risk averse group (as oxymoronic as that may sound). Over the past two decades, as US copyright law has developed with the DMCA, so have pirates. Pirates commonly hide their actions and avoid law enforcement by exploiting five different methods: (1) using fake or hidden website registration details, (2) utilizing overseas servers, (3) exploiting a high-rate of DMCA compliance to continue piracy efforts, (4) receiving payments through cryptocurrencies, and (5) using Virtual Private Networks (“VPNs”).
Under the first method—using fake or hidden website registration details—pirates look to thwart law enforcement agencies from the get-go. By using fake personal information to register domain names, pirates leave law enforcement agencies with very little information to connect a specific person to a specific website. This lengthens the investigation process and makes it costlier for ISPs to actually follow through on takedown requests. Subsequently, this law evasion tactic led to the creation of anonymous domain registration services. These services purchase domain names on behalf of pirates and act as a “straw person that takes the blame” for infringement. In this manner, pirates are afforded an additional layer of anonymity.
Next, the use of overseas servers is a popular technique pirates utilize to evade the law. As the DMCA notice-and-takedown mechanism is rooted in US law, content found on overseas servers is typically outside the reach of DMCA compliance. Moreover, the content found on offshore servers is subject to—and often protected by—the laws of the territorial country. Further, by hiding activity overseas, pirates slow down the legal process by forcing local agencies to go through a great deal of red tape to collaborate with other nations in their anti-piracy efforts.
Another evasion method pirates use is exploiting a high-rate of DMCA compliance to continue piracy efforts. Under this technique, pirates appease law enforcement by following through with a high number of DMCA notice-and-takedown requests, while simultaneously using said compliance as leverage to continue distributing illegal content. As some scholars put it, this turns into a game of “whack-a-mole”: when one link gets taken down, another rises in its place.
Further, receiving payments through cryptocurrencies is an additional tactic pirates use to avoid punishment. Virtual currencies are an attractive form of payment because they are anonymously traded and leave little to no paper trail. Where pirates of the past used easily traceable services such as PayPal and credit cards, virtual currencies offer the type of anonymity pirates crave. And though cryptocurrencies pose a bit of a learning curve for users, the currency provides an effective method for pirates to further hide illegal activity.
Finally, the widespread use of VPNs has helped both users and pirates hide from the law. VPNs act as middlemen between one’s computer and the Internet by offering encrypted connections between a virtual server and a private network. VPNs disguise a user’s IP address and location and can make an individual appear as if they are in a different country altogether.  VPNs are often used to protect information and access university or business networks remotely. While VPNs are user-friendly and cheap to use, they also mask copyright infringement effectively. Because of this, the governments of China and Russia have banned the use of VPNs.
The fight against Internet piracy is a long way from over. While BitTorrent users are “statistically unlikely to face any consequences,” law enforcement agencies further lack the resources to find and prosecute millions of other copyright infringers as well. Nevertheless, with Cox pending in the Fourth Circuit and DMCA notice-and-takedowns still in effect, US anti-piracy efforts continue to have a visible effect on the illegal industry. However, with new technologies continuously supporting the anonymity of pirates, an international framework fostering better cooperation would be the most effective method to challenge online piracy going forward.
Part II coming Spring 2018.
Recommended Citation: Rajan Patel, Searching for Buried Treasure Abroad: How Better International Cooperation Can Help Decrease Internet Piracy (Part I of II), Calif. L. Rev. Online Blog (Jan. 11, 2018), http://www.californialawreview.org/searching-for-buried-treasure-abroad/.
* J.D., University of California, Berkeley, School of Law, 2019; B.A., University of Oregon, 2015.
 See, e.g., Why Does The RIAA Hate Torrent Sites So Much?, Music Business Worldwide (Dec. 6, 2014) (estimating that in 2014 “U.S. Internet users annually consume between $7 and $20 billion worth of digitally pirated recorded music”), https://www.musicbusinessworldwide.com/why-does-the-riaa-hate-torrent-sites-so-much/ [https://perma.cc/W9GY-B44G].
 Travis M. Andrews, ‘Game of Thrones’ was pirated more than a billion times — far more than it was watched legally, Wash. Post (Sept. 8, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/09/08/game-of-thrones-was-pirated-more-than-a-billion-times-far-more-than-it-was-watched-legally/ [https://perma.cc/CYJ9-RKBJ].
 Id. (noting an illegal audience of 187.4 million and legal audience of 16.1 million).
 Encyclopedia, Definition of: Internet piracy, PC Magazine, https://www.pcmag.com/encyclopedia/term/63907/internet-piracy (last visited Oct. 7, 2017) [https://perma.cc/4BAF-7V44].
 Aatif Sulleyman, Pirate’s Treasure: How Criminals Make Millions From Illegal Streaming, The Independent (Sept. 19, 2017), http://www.independent.co.uk/life-style/gadgets-and-tech/news/piracy-streaming-illegal-feeds-how-criminals-make-money-a7954026.html [https://perma.cc/6D7S-G6M3].
 Aaron Parson, How Does Peer-to-peer File Sharing Work?, http://smallbusiness.chron.com/peertopeer-file-sharing-work-57706.html, (last visited Oct. 7, 2017) [https://perma.cc/3ZLQ-N2BW].
 Robert Elder, Illegal streaming is dominating online piracy, Business Insider (Aug. 1, 2016), http://www.businessinsider.com/illegal-streaming-is-dominating-online-piracy-2016-8 [https://perma.cc/U2H6-JDWS]
 James Titcomb, Rise of illegal Kodi streaming threatens piracy crackdown, says Government report, The Telegraph (July 7, 2017), http://www.telegraph.co.uk/technology/2017/07/07/rise-illegal-kodi-streaming-threatens-piracy-crackdown-says/ [https://perma.cc/JZF9-MMQ2].
 See id.
 10 Reasons Why People Pirate And Illegally Download Movies, Songs, And Software, Fossbytes (May 29, 2017), https://fossbytes.com/10-reasons-why-people-do-piracy-and-download-movies-shows-albums-software/ [https://perma.cc/HQ3Q-3A7Q].
 Elder, supra note 8 (noting that the economic impact of piracy is still open to debate).
 David Amar, Copyright Competition: The Shifting Boundaries of Convergence Between U.S. and Canadian Copyright Regimes in the Digital Age, 41 Brook. J. Int’l L. 1303, 1309 1313–14 (2016).
 17 U.S.C. § 106 (2012).
 Matthew Bernstein, Searching for More Efficient Piracy Protection, 43 AIPLA Q.J. 625, 626 (2015).
 Amar, supra note 14, at 1313–14.
 Zoe Carpou, Robots, Pirates, and the Rise of the Automated Takedown Regime: Using the Dmca to Fight Piracy and Protect End-Users, 39 Colum. J.L. & Arts 551, 556 (2016).
 17 U.S.C. §501; see also Chris Hoffman, What Is the DCMA, and Why Does It Take Down Web Pages?, How-To Geek (Sept. 22, 2016), https://www.howtogeek.com/161216/htg-explains-what-the-dmca-is-and-how-it-affects-the-internet/ [https://perma.cc/9T56-LYT3].
 Carpou, supra note 20.
 See id. at 556; §512.
 See generally Carpou, supra note 20 (noting the strengths and inherent flaws of DMCA notice-and-takedowns).
 Id. at 556–57.
 Julianne Pepitone, SOPA explained: What it is and why it matters, CNN Money (Dec. 18, 2017), http://money.cnn.com/2012/01/17/technology/sopa_explained/index.htm [https://perma.cc/HC6A-QMJU].
 Bernstein, supra note 18, at 639.
 199 F.Supp.3d 958, 963 (E.D. Va. 2016).
 Id. at 963–66.
 Id. at 968–80.
 Id. at 977–981.
 Id. at 363–65.
 See David Newhoff, BMG v Cox Goes to 4th Circuit Appellate Court, The Illusion of More (Jan. 17, 2017), http://illusionofmore.com/bmg-v-cox-goes-4th-circuit-appellate-court/ [https://perma.cc/7J73-VFJK].
 Andy, The Things Pirates Do To Hinder Anti-Piracy Investigations, Torrent Freak (Sept. 9, 2017), https://torrentfreak.com/the-things-pirates-do-to-hinder-anti-piracy-outfits-170909/ [https://perma.cc/7TS5-HP65].
 Zohair, supra note 41.
 See id.
 Ernesto, Pirate Bay Founder Launches Anonymous Domain Registration Service, Torrent Freak (Apr. 19, 2017), https://torrentfreak.com/pirate-bay-founder-launches-anonymous-domain-registration-service-170419/ [https://perma.cc/TQ6A-DHPM].
 See id.
 See Enforcing Online Copyright Protections Abroad: Understanding Foreign Takedown Notice Requirements, The IP Exporter (Mar. 25, 2013), https://theipexporter.com/2013/03/25/enforcing-online-copyright-protections-abroad-understanding-foreign-takedown-notice-requirements/ [https://perma.cc/7A9D-TUCM].
 See id.
 Andy, supra note 42.
 Stephen Carlisle, DMCA “Takedown” Notices: Why “Takedown” Should Become “Take Down and Stay Down” and Why It’s Good for Everyone, Nova Southeastern University: Office of Copyright (July 23, 2014), http://copyright.nova.edu/dmca-takedown-notices/ [https://perma.cc/472E-S8SA].
 Andy, supra note 42.
 See id.
 Pocket-lint Promotion, What is a VPN?, Pocket-lint (Oct. 5, 2017), http://www.pocket-lint.com/news/142278-what-is-a-vpn [https://perma.cc/NA74-5TRE].
 Andy, Just How Risky is Internet Piracy in 2017?, Torrent Freak (July 15, 2017), https://torrentfreak.com/just-how-risky-is-internet-piracy-in-2017-170715/ [https://perma.cc/K5CM-UGEB].