Playing Whac-A-Mole with Internet Piracy: Where is it Headed, and Will it Ever Be Stopped?

Posted by Cyberbear on March 24, 2017 in 3-D Printing, Copyright Law, Intellectual Property, Internet, Patents |

For years, the movie and music industries have been plagued by internet piracy through websites like The Pirate Bay, BitTorrent and Torrentz who have given users the ability to download and stream millions of their favorite songs and movies, right from their computer for free. Copyright protection has been evaded so well, that many companies are left scratching their heads about what to do next. The New York Times, in an article on the subject, described this process as like that of the game Whac-A-Mole, except in this game of Whac-A-Mole, the mallet is “heavy and slow,” and when it hits one mole, hundreds of others appear. Sadly, (or joyously, depending on which side you’re on), this has become the reality in the digital world we live in, and with the genesis of 3-D printing, you might want to buckle your seatbelt because it looks like internet piracy might not be going away for a very long time.

Copyright law has been constantly trying to keep up with technology from the beginning. Many times, new technological breakthroughs can happen at breakneck speed, and it leaves both legislatures and judiciaries in the dust. In a world where a case can take years to be resolved, especially one with a weighty legal issue that’s taken to the Supreme Court, the technological issues involved can often be obsolete by the time the case is finished. Also, technological innovation ensures that when the verdict is handed down, the legal precedent that is set will be worked around. Since there are so many new innovations, this is quite an easy task for many programmers looking to design programs for illegal internet piracy.

One of the first major cases of the recording industry coming after these internet piracy programs was in the case A&M Records, Inc. v. Napster, Inc.  Napster was a proprietary peer-to-peer file sharing network that allowed users to download mp3 files from other users’ machines using their program. Napster had a program that included a centralized database with one server with a search engine where users could easily go and find music that was being held other users across the searchable Napster network. This was easy and convenient for many people, and became a ubiquitous way to find and listen to music in the 1990’s. The A & M Records, along with many of the top record companies, didn’t take too kindly to this program’s effect on their revenue and violation of their copyright. So, in 2001, they brought suit against Napster and the United States Court of Appeals for the Ninth Circuit heard the case.

The court concluded that Napster was liable to the record companies for contributory infringement, and also for direct infringement, denying Napster’s fair use claims. Napster tried to argue that the program had what is known as “substantial non-infringing uses,” or in other words could be used for a myriad of other things besides downloading music illegally, like chatting in their chat rooms and space-shifting. The court didn’t buy that however, and ruled against Napster’s argument for fair use of the copyright. Significant to the court’s ruling was that Napster had a centralized system which users could access to find the copyrighted songs. This was a major case that changed the landscape of the ballooning peer-to-peer file-sharing industry, but of course the game of Whac-A-Mole continued unabated.

In the wake of the Napster fiasco, similar peer-to-peer program providers took notice. Instead of creating centralized systems designed as an access and reference point for each user, peer-to-peer program creators started to design the programs in a craftier way. Instead of having a central server, these programs were called P2P systems, which still connected individuals and their files through a similar network, but without the centralized server. Thousands of new Whac-A-Mole moles were born, with new and improved technology.

In response to these innovations, media companies again took to the courts and started to focus their attention not on the companies offering these programs like Napster, but on the users of the programs themselves. The recording industry was going after its own clients. Not pretty.

One such case of this was in RIAA v. Verizon Internet Services, a case of the Recording Industry Association of America attempting to go after the little guy. RIAA filed for a pre-filing subpoena to compel Verizon, as an internet service provider hosting the P2P filesharing on its network but not storing it on its servers, to provide the names of the users downloading music illegally to bring suit against them individually. The RIAA was arguing that under a law called the DMCA which permitted pre-filing subpoenas in the case of Online Service Providers hosting infringing material. The court rejected the RIAA’s argument finding that Congress had not explicitly authorized such pre-filing subpoenas in the case of Internet Service Providers that stored no digital materials, and said these issues should be left to the legislature not the courts.

This was a blow to the record industry, but it was a close call, and so again internet pirates adapted by making more changes. Alas, torrents were born. Torrents are a hybrid type of system. They encompass some aspects of a central server, which coordinates the users by trackers placed on the music. Torrents would be employed when a user downloads a song, which happens through thousands of pieces of that file coordinating together from different separate networks in order to form the one file. Unlike Napster, however, there is no designated server required for these files to be coordinated and downloaded. So, in a sense, it is more decentralized and anonymous. And that decentralization and anonymity just so happens to insulate it from suit based on previous case law. Funny how that happens.

Record companies have tried to sue to require ISPs to disclose the identity of these large groups of pieces which are all held by an individual user each, but have failed because the company doesn’t have enough of a need for disclosure. In many cases, the court requires that the ISP actually know about the illegal activity and stores it on its servers in order to compel disclosure of information. That almost never happens in internet piracy where the piracy software creators and ISP are working in concert, so the record companies usually fail at these requests.

Looking Towards the Future of Piracy and Intellectual Property

In response to these problems, the music and movie industry has taken the wrong approach in the opinion of some. Many, like Paul Tassi of Forbes, believe these companies have to stream more, charge less, and cut their losses. In other words, it is a fruitless battle and they need to change service strategy. I tend to agree, but think that there is an even more pressing copyright issue involving piracy we will see in the future: 3-D printing piracy. This is one area that leads me to believe that many companies 20 years in the future will have no choice but to focus more energy on legal solutions to fight 3-D printing piracy or risk letting it upend and disrupt whole sectors of the economy. So, to me, the fight against piracy we have seen in the movie and music industry might not be fruitless. It might be a fight that lays the framework for the future of copyright in areas we never imagined copyright would venture. For non-utilitarian designs the piracy may implicate copyrights but the 3-D printing of useful products my involve patent piracy.

One of the big issues that will be of paramount importance moving forward in copyrighting 3-D printing non-utilitarian designs is who owns the copyright, according to Art Law Journal.  Is it the person making the CAD design, or the person operating the 3-D printing machine? Which person designing it will be the owner? Will there be a future in which we all own 3-D printers and can find whatever designs we need from pirating sites like The Pirate Bay? Will that be a violation of copyright protection on that design? These are all copyright questions that will need to be answered, and I’m not sure our current framework of laws is enough to answer these questions at the moment.

There are many ways to combat the rising threat of 3-D printer piracy, says Roy Kaufman of Tech Crunch. He suggests manufacturers of automobiles, for example, setting up a system in which 3rd parties can print replacement parts instead of getting them from the company itself. Or, companies in general creating products out of special material that is difficult or impossible to replicate, and requiring that material for the design of the product in order for it to work. Supply-chain management will likely become a huge area of concern among large conglomerates, with design security as the utmost important priority because one leak of that design and I can imagine a company losing millions.

Other companies are creating market solutions to 3-D printing piracy. One company called Authentise created a program that runs by creating a streaming service like Netflix, which gives out 3-D printed designs but only allows one print once it is downloaded. Much like a streaming service, Authentise only sends out the parts of the design when the user needs them to print, ensuring that, like streaming a movie, the design is only used once and for only that purpose. Will there be a technological disruption that can record these parts of the design and save them? I guess we won’t know until it is created.

Intellectual property will have a rocky road ahead in a digital, internet-connected world, but I believe that with the right legal framework, the right legal precedence, and the right market solutions, both the movie, music, and 3-D printing areas will adapt to be leaner and bring more utility to the world around us. That might mean we never again see the luxury of the 1980’s music industry with the fat-cat music execs rolling cigars and rolling in money, but I think we can find a happy medium in the future.

With the increasingly-digital world in which we live, I can’t see internet piracy being reduced anytime soon. It might take decades for us in the legal community to even catch up legislatively and judicially. I think that the only way we can hope to create effective law to protect copyright in this area is to streamline the judicial process and through trial and error (no pun intended) chip away and see what precedent works and what doesn’t. I think judges, especially in these areas, must be more aware of changes in the technology and focus more on future implications than on the present parties’ interests. This is the only hope the law has to winning the Whac-A-Mole game. Truthfully though, the law will never catch up to technology. The law is like the slowest kid on the football team in this situation: give it your all and learn from your mistakes kid, that’s all we ask.

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