Peer-to-Peer File Sharing of Copyrighted Materials
I am writing my paper on peer to peer file sharing and how the current and proposed criminal laws are deterring (and failing to deter) future sharing of copyrighted materials. For those who do not know, a peer-to-peer (P2P) network is a network that allows users to search and access files from other end-users computers “peers”. The files will be download by a user directly from the other peers’ hard drives. These P2P networks are usually run through a program or a website, but that program or website does not hold the actual files.
In this blog post I talk about two of the biggest recent take downs of Peer to peer file sharing services, Megaupload and Grooveshark. These two takedowns were rather successful at stopping the copyright infringement that the sites were promoting. In my paper I focus on BitTorrent which presents some different problems then these two services. The kind of search and seizure that happened to these two sites is not very effective in stopping infringing material being shared through the BitTorrent protocol. The reason that Megaupload and Grooveshark were able to be taken down was because their P2P users needed to use Megaupload and Grooveshark’s servers to share files with one another. BitTorrent files called .torrent files cannot be stopped so easily because the P2P network is decentralized. This means the shutting down a website (such as Pirates Bay was), does not stop the files promoted on the site from being shared. Megaupload and Grooveshark have both been shut down but there were and still are many legal wrenches in the United States attempts to do so.
On January 20, 2012, New Zealand authorities raided Kim Dotcom’s mansion as part of the American-led global shutdown of his Hong Kong based file sharing company MegaUpload. Dotcom still faces 13 American criminal charges including: copyright infringement, racketeering, wire fraud, and money laundering. The United States filed a formal extradition request with New Zealand prosecutors to get Dotcom in front of a federal judge in Virginia. The US indictment states that Megaupload does not meet the criteria for safe harbor under the Digital Millennium Copyright Act (DMCA) because they were “willfully infringing copyrights themselves on their systems”. The indictment claims that Megaupload employees knew full well that the site’s main purpose was to distribute infringing content, and they encouraged it. A reason that the US prosecutors believe that the employees knew and encouraged this was because of email that they recovered between employees. The emails explain how Megaupload’s “uploader rewards” program worked. This program gave uploaders cash for uploading DVD quality movies and other files in demand. An email recovered from 2008 from an employee says that, their business is that of “modern day pirates.” The US also claims that the sites “abuse tool”, that could be sued by owners of copyrighted material US prosecutors claim that the site has earned more than $175 mostly through copyright infringement.
Dotcom has still not been extradited in the last three years because his lawyers have been able to continue to have the extradition hearing delayed by challenging the validity of the warrant executed to search his business and estate. It has currently been rescheduled ten times. However, Dotcom and his Co-defendants have lost their most recent bid to delay the extradition hearing scheduled for September 21, 2015. Of course this ruling will be appealed and we will have to see if this date will get pushed back again. Dotcom is currently living in his mansion in New Zealand where he has been out on bail
A major reason that Dotcom has not been extradited yet is because copyright infringement is not an extraditable offense. Of the 13 counts that Dotcom has been charged with, only two, racketeering and money laundering, fall under the extradition treaty between the US and New Zealand.
One of the Defendants in Dotcom’s copyright case, a program developer, was arrested in Virginia in February 2015, after being extradited from the Netherlands. He has pleaded guilty to felony copyright infringement and was sentenced to a year and a day in US federal prison. In his plea agreement, the developer admitted that he was aware that copyright-infringing content was stored on the website. Prosecutors hope to use his admission to help the extradite process with Dotcom.
Grooveshark was another P2P file sharing service that had 35million users at its peak. Grooveshark provided streaming access to a library of millions of songs. Grooveshark had one several lawsuits by The Recording Industry Association of America (RIAA), until in Federal judge in New York, ruled that it infringed on thousands of RIAA copyrights. Grooveshark’s defense had been that it complied with the DMCA’s requirement to respond to takedown notices from copyright holders. A reason for the ruling was because many Grooveshark employees had uploaded a total of 5,977 songs without their label’s permission. Because of this and other lawsuits that Grooveshark was involved in, it shut down in 2015.
Technology advances much faster than government can pass new laws and while the United States is still trying to prosecute Kim Dotcom other P2P methods have already taken over. There are obviously many obstacles in shutting down websites that are based in other countries. I think that the only way for the US to be able to stop the P2P sharing of copyrighted material in the US, the government must make strict criminal laws for the users downloading these copyrighted files. Currently, almost all internet service providers use what is called a six strike policy. This is where groups like the RIAA and MPAA monitor P2P networks and send the IP address of users who share or download copyrighted material to their internet service providers (ISP). The ISP’s then take a series of steps to inform their subscriber they are breaking the law. If subscribers ignore the many warnings the worst ramifications that they will receive is getting their internet throttled. ISP’s will not give up their subscriber’s information unless there is a subpoena or a warrant. I think making a law around this system to criminally punish continued infringers is the best way of stopping it in the US.
Let me know what you guys think!
Criminal Law in the Virtual Context 
I’ve been researching something that is tangentially related to this for my paper given that it is on the insufficiency of the DMCA with regards to types of online infringement that are different from P2P. In those instances, it did not seem like criminalizing the actions of those viewing the copyrighted files as it would do very little to help those whose works have been infringed on, it might not actually be that much harm done by the individual if it is a one-time things, and the ISPs that enable the infringement do far more harm. However, I am really intrigued by the six-strike policy and its applications to P2P file sharing. It’s very premise ensures that the only viewers who have infringed to a great extent are held criminally liable. I also like the options of locking Internet service and slowing speeds. Those types of options may not be as harsh as jail, but it would still seem to be a pretty effective deterrent if you end up not even being able to watch what you download. If cable Internet providers could find a way to implement this sort of system and monitor non-P2P infringing activities it would be a big step, but not necessarily solve all Internet infringement.
Even with the potential effectiveness of holding the infringers criminally liable, that doesn’t mean we should let ISPs off the hook as they make so much of this infringement possible. Given that Megaupload “paid users to upload illegal movies and music and tried to hide the practice,” it is very complicit in all of this even if it can say that it has non-illegal uses. (https://www.washingtonpost.com/business/technology/megaupload-shutdown-raises-new-internet-sharing-fears/2012/01/20/gIQATHRtEQ_story.html)
I’m not sure what an easy answer to this would be given that a lot of these sites operate abroad, but if they are inducing intellectual property theft on such a large scale, people like Kim Dotcom cannot be ignored regardless of the effectiveness of measures taken against the users of sites like Megaupload.
I think we need to think carefully about how to address the infringement. The P2P services can definitely serve a legitimate purpose in supporting the free and efficient exchange of ideas and shutting them down directly could have a chilling effect on speech if the services shut down or people are afraid to use them. Perhaps the most efficient way to address the issue would be through the ISP’s. Surely there has to be some way for an ISP to detect those instances when one is downloading the newest movie versus an educational or otherwise non-infringing work. I’d like to see some statistics on the age groups that use these P2P networks to infringe. I would venture to guess that the majority of the infringers could be quite young and if that is the case then criminalizing their youthful ignorance could be a bad way to approach the issue.
Similar to my posting, there always seems to be a successor willing to quickly step in and attempt the very same activity that led to the predecessor’s failure.
Are there any sort of criminal punishments you might have in mind for addressing this issue? Or might you bring it up in this weeks discussion?
The idea of punishing the people who download, in my mind and I’m sure in others minds as well, does need a distinction. When we’ve discussed any of these issues of copyright infringement, I think of the downloading I’ve done myself and others I know who have done so. Essentially, ‘light’ infringers. And then there are the heavy downloaders, people the pull thousands of dollars worth of copyrighted material. Should criminal sanctions be placed against myself and others like me? Or should they just be put toward the heavy hitters?
The issue I have with criminality on low-level persons, at risk of sounding too gross, is similar to drug or trafficking criminality: will prosecuting those lower down really make a difference? I think that the only way it really could would be through insane penalties, such that fear would successfully spread across the majority of low users. Which I think would come closer to risks of unconstitutionality. Apart from that penalties such as these are put forward, the result is usually not what was desired. Though I may be mistaken.
Lastly, as for the ‘internet throttling’ solution. I would be entirely opposed to that, not necessarily based off of the value of that idea alone (which I find quite interesting as a deterrent. Actually, a pretty good and cool one). But, my concern is that whomever would be given the power to control internet throttling, there is no way that entity would stop the use of that power at just these penalties. I think something more akin to Time Warner’s efforts of recent years at internet throttling would occur.
The interesting thing about MegaUpload relative to Napster or Morpheus is that MU actually had a use that was not illegal. And while I know that most of the users on MU used it for illegal purposes, it was essentially ~the cloud~ before the cloud existed. You could have an MU account and save your family photos as a zip file onto the MU server so that you didn’t have to have the space on your computer and could access them at any time. The central idea behind MU still lives within iCloud and other services like that, just simply that MU was the one that users chose and owners allowed to be “it” for downloading.
I’m not sure how much throttling will change things and I’m not totally sure about it’s legality. People would have already downloaded things at that point, it just might slow down future downloading, but users would find a way around it. It is similar to the drug conundrum.
I’ve said this before in class but the response by the copyright holders has been the generation of all of these new streaming services for shows, movies, and music. Offering these services at a smaller price than what used to be is the opportunity cost for downloading from a P2P site or torrent and the potential issues that could come with that.
Another interesting blog post! At least the DOJ is trying to do something to combat this issue of copyright infringement. EN1 However, I don’t know how successful the DOJ will be in deterring future similar conduct.
I think criminalizing Internet service providers may work. I think ISPs have the technology and coding to be able to identify infringing material. However, criminalizing these service providers seems to be unpopular. I was really shocked to read about Anonymous’s ability to shut down the DOJ’s website. EN2. I don’t really like the idea that a group can have a retaliatory reaction and shut down an entire website. Right now the Internet is so large that it seems like the DOJ has to pick its battles. Maybe a solution could be to expand the criminal division of the DOJ, particularly the division dealing with cyber crimes mentioned in one of our readings and train more individuals to help police this new area of law. EN1. I think if enforcement of the laws regarding copyright infringement on the Internet seems more likely, then more people may be deterred from engaging in this criminal activity.
EN1: http://www.justice.gov/opa/pr/justice-department-charges-leaders-megaupload-widespread-online-copyright-infringement
EN2: http://money.cnn.com/2012/01/19/technology/megaupload_shutdown/index.htm
I thought this was a very interesting read and I agree with the commenters above that I don’t know if punishing the downloaders is the appropriate route to take. I was really interested in the six-strike policy and think that could be a successful route. Being notified six times that your conduct is unlawful is plenty of warning.
P2P services can be very beneficial for sharing legitimate files and I would hate to see that be infringed upon. However, I have no sympathy for Megaupload or Grooveshark. If they truly knew that people were uploading copyrighted content and allowing it to be downloaded by thousands of other people they absolutely deserve to be shut down. I am still very confused as to how the jurisdiction aspect works in cases like these. I realize that some servers were located in the US but I guess my question is why the US wanted to take the lead on this?
In undergrad a friend of mine used Torrent all the time and I always asked him if he was worried about the copyright rules or getting caught downloading things illegally and he always said no. I didn’t know that it was because the network is decentralized. I do think that the ISP’s need to be held responsible for allowing the content to be accessed in the first place.
I agree with other commenters that I don’t think the people downloading should be punished. I think in cases like Megaupload where the site encouraged and paid people to upload illegal content that Megaupload should be the one punished. Maybe also those uploading the content. Punishing the people downloading the content does not seem to me to be a way of fixing the problem. There will always be people continuing to upload movies and tv shows and people downloading it because they don’t think they will get in trouble for it because it is “normal” to download illegal content.
I think it is solely the responsibility of the website, in this case Megaupload or Grooveshark, to take down illegal content and to discourage it from being posted in the first place.
When a provider of server space is encouraging individuals to post high quality pirated material for public consumption on its servers, then they should be held criminally liable for it. This does not seem to be debated at all in all of the posters. I just do not know if it is going to matter. I am very jaded on the subject and feel that it is similar to cutting the head off of a hydra. Similarly to the other blog post this week, taking down Silk Road or Megaupload, will more than likely just lead to the creation of a new one or three. It is simply to lucrative and easy an illegal industry to break into.
My best solution for it has to be holding the ISPs responsible for throttling the internet of those individuals who both post the material and download it. This creates some cognitive dissonance for me because I do believe in a free an open internet, but we cannot as a society let blatant criminality go unchecked.
I look forward to discussing solutions in class.
When reading this blog I was intrigued as to how some people would address this issue.
I echo what some of my classmates have said in terms of what punishment some people should receive when downloading illegal content. I think that the six-strike policy is a bit much. I don’t think people really need six warnings to figure out that what they are doing is not right. However, how would punishing people differ when it came to people who barely download illegal content versus those that download thousands of dollars worth of material? I think that punishing those that barely download illegal material is not really going to make a difference, as many stated. The heavy down-loaders, in my opinion, should be punished through fines and imprisonment.
I agree with Britney’s comment on the lack of sympathy I have for MegaUpload or Grooveshark. If they knew or suspected that copyrighted content was downloaded by various people and did nothing about it, then they should be held liable. Furthermore, I am interested in discussing how jurisdiction would work in these cases, considering anyone can download an illegal movie, song, or anything else from anywhere in the world.
I look forward to our discussion!
As always , an interesting post. I am also curious as to what you think the criminal legislation should address. What behavior would we be seeking to regulate and how exactly? Do we want to penalize anyone who downloads illegally or seeds one song in violation of someone’s copyright? Should there be a thresh hold for number of times or size of files? Can it even be size of files since the files can be broken up on a BitTorrent? I don’t appreciate people who sneak into the movies and film and then upload the film to the internet. This is a theft, but how do we regulate it? The devil is in the details is the expression that comes to mind.
France tried a 3 strikes system, where the violator’s internet would be shut off at the third warning, and there was a possibility of criminal charges. I believe that only 3 people actually had their internet cut off and no criminal charges were ever brought. I believe France has abandoned the system. I will try and verify that for the class discussion.
When Grooveshark closed the owners apologized for bad judgment and stated that they should have paid royalties. I don’t know if this was part of the settlement agreement or whether they really believed it, but they did apologize. I do sometimes wonder whether the idea that the internet is free allows people to believe that anything they can get off the internet should also be free, even if it is copyrighted material. Is this a cultural/societal norm that is developing in your generation?
Kim Dotcom’s lawyers lost the last appeal. The extradition hearing has been scheduled.
I personally have received ten (10!) cease and desist letters from HBO via Verizon for (in my misguided youth) downloading torrents of the entire first season of Game of Thrones. At the time, I had been told that torrents occupied a legal grey area, and that no action could be taken against me for downloading them. However, the cease and desist letters I received implied otherwise. Now that I’m in law school, I can recognize that there is a uniquely frustrating quality to the field of P2P file-sharing that makes it difficult to legislate for.
If I take a copy of Adele’s new album, 25 (when it comes out), and burn three copies for my friends and family, have I violated the law? Or is it only on the level of mass distribution that I have broken the rules? Is showing copyrighted material (like a movie) at my house to a large group of people breaking the law, or do I have to profit from it? It’s a very new, very tenuous area of the law, and one I look forward to discussing in class.