What’s All This About Pirates on the Internet? - Fordham Intellectual Property, Media & Entertainment Law Journal
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What’s All This About Pirates on the Internet?

What’s All This About Pirates on the Internet?

IPLJ BLOG FEATURE: From the Desk of the Editor Each month, Editor-in-Chief Jacqueline McMahon weighs in on topics and legal issues covered in the IPLJ. This month Jacqueline discusses piracy on the Internet.

Pirates are everywhere nowadays.  Pirates in the Indian Ocean.  Pirates in the movie theaters.  Pirates on the web.

Some people define piracy as illegal copying of copyrighted materials from the Internet.  But others label this definition of “theft” ludicrous.  “[U]se of the word ‘piracy’ to describe pattern-copying is going too far. Real pirates storm boats, rape, loot, murder; they break things; they leave the victims dead, injured, enslaved or at the least missing many former possessions. Modern IP “pirates,” of course, do none of these things.”

So is it fair to call what happens online “piracy” and those who copy “pirates”?  What is clear is that the term “pirate” has become such a buzz word for the news industry because of its popularity and the image it connotes.  Pirates of the Caribbean: On Stranger Tides, the fourth movie in the Disney series, made $1,043,871,802 worldwide.  People like pirates.

But the things pirates do are bad—really bad.  Murdering.  Enslaving.  And downloading a movie off of BitTornado?  The analogy doesn’t quite seem to fit, but people who use someone else’s property for their own purposes without proper permission or payment are certainly doing something bad.

The federal government sees it that way too. Congressmen struggle to pass stricter regulations of downloads, uploads, and searches.  PIPA and SOPA have people on both sides of the debate up in arms.  People face serious consequences—both civil and criminal—if they don the label “pirate.”  If convicted, online pirates can be put in IP-prisons or sometimes even (potentially) real prisons.  Civilly, willful pirates—and most people are aware that the content they are copying is protected—can be held liable for damages up to $150,000 per infringed work.

The odd part is that most anti-piracy advocates don’t believe that little Sally should be help accountable for significant damages for “illegally downloading” a song that costs $1 in the marketplace.  And that does seem quite ridiculous, but the counterargument is, of course, there are thousands, maybe millions, of Sallys out there.  When $1 is stolen by 1 million people, the significance of the damage of that $1 download becomes all the more apparent.  Moreover, DVD piracy has been found to have a higher profit margin than the drug trade and is being used to fund organized crime and terrorism rings worldwide.

Because piracy is becoming such a commonplace and profitable occurrence, and efforts to contain it or prevent it have been agonizingly unsuccessful, some businesses are instead trying to turn piracy into a business practice.  According to Mikael Hed, chief executive of Rovio Mobile, creator of the Angry Birds brand, “We could learn a lot from the music industry, and the rather terrible ways the music industry has tried to combat piracy. . . . Piracy may not be a bad thing: it can get us more business at the end of the day.”  Adopting Hed’s philosophy, treating users as customers—focusing solely on the consumer’s financial contribution to the company—diminishes their association with the brand. Instead, users should be seen as fans, whether they obtain the merchandise through legal or illegal means; the more fans you have, the more successful your brand, and ultimately (hopefully) the fatter your wallet.  In other words, “piracy” is “nothing more than a huge sampling exercise.

If this is an option, if it is just as simple as business, those in the music industry, those game-makers, and all other creative geniuses who create something nobody appreciates until they can get it for free, then do we really need PIPA and SOPA or any other government regulation at all?  Should these person-person or person-business, or business-business disputes even be brought into a court?  Should we be creating precedent that says, especially during the “Occupy Wall Street” time we live in, that the big rich company gets to pick on the little guy who really wants that Angry Birds game, but can’t quite afford it?

On the other hand, one could argue quite persuasively that you can’t always get what you want.  Which conveniently brings us back to the pirate idea that began this blog.  Pirates take what does not belong to them, through whatever means necessary, because they want it.  They want it now.  (Pirates seem to share quite a bit in common with Veruca Saltin this regard.)  The Internet makes information available at our fingertips at lightning speed.  But only the information is available for free.  Products—songs, games, movies, tv show, books, etc.—are not promised to us for free.  These products are the product of the blood, sweat and tears of their creators.  Why should we passive Internet users be able to obtain these products for free?

"Nah-a-ah, not so fast!'

While the analogy to pillagers may not be perfect, the idea behind the label is quite simple: If you take what does not belong to you, you are a pirate, the Internet’s (or copyright owners’) name for a thief.

Jacqueline P. McMahon

Jacqueline McMahon is a third year law student at Fordham and the current Editor-in-Chief of the IPLJ. Her primary interests include cybercrimes, information privacy, and First Amendment issues. She is also an avid animal lover and enjoys baking in her free time.