Big Content's Big Blunders:Anti-piracy measures in the entertainment and copyright

industries

Dee Majek

Filmvetenskapliga Institutionen / Department of Cinema Studies

Examensarbete 15 hp / Masters of One Year Thesis 15 credits

Filmvetenskap / Cinema Studies

Magisterskurs (15-30 hp) / Masters of One Year course (15-30 credits)

Vårterminen / Spring term 2013

Handledare / Supervisor: Maaret Koskinen

Big Content's Big Blunders:

Anti-piracy measures in the entertainment and copyright industries

Dee Majek

Sammanfattning/AbstractThis thesis examines the on-going anti-piracy and anti-file sharing measures taken by media conglomerates and big content as misguided attempts at addressing changing consumer expectations and social and technological norms. These measures include legislation such as the Stop Online Piracy Act (SOPA), Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA), Anti-Counterfeiting Trade Agreement (ACTA), and Cyber Intelligence Sharing and Protection Act (CISPA); and litigation against both extremes of the spectrum: from the world's largest file sharing search engines like The Pirate Bay, and cyberlockers like MegaUpload, to private citizens who illegally downloaded a few movies or a few songs. The manner in which the entertainment industry's largest, most expensive, and highest-profile anti-piracy measures in the recent years have been received by groups from IT corporations to human rights organizations, researchers, politicians, legal and internet experts, and millions of citizens worldwide are of focus; and how this translates into an unpopular public image is explored. Piracy is underlined as a service and distribution problem, and various international studies are presented in exploring the relationship between illegal downloading and legal purchases.

Keywords

File sharing, piracy, digital distribution, copyright infringement, anti-piracy, copy culture, SOPA, PIPA, ACTA, CISPA, The Pirate Bay, MegaUpload, Steam, Aaron Swartz, Pirate Party, MPAA, RIAA, Netflix, HBO, Cybernormer, BitTorrent

2

ContentsIntroduction ........................................................................................... 4 Differing Definitions: Immaterial Property as Information, Copying as Sharing, and File Sharing as Culture ....................................................... 9

Greedy Scofflaws or Valued Customers? Illegal Downloads and Legal Purchases are not Mutually Exclusive ............................................................................................. 14

Market Cleaning: Restrictive Legislation to Combat Perceived Distributional Competition .................................................................... 21

Missed Opportunities: Adaptation Takes a Backseat to Litigation .............................. 26

SOPA / PIPA / ACTA / CISPA / etcetera ................................................................. 32

Image Problems ................................................................................... 39 An Ongoing History of Bad Blood, Scandals, and Persecution .................................. 42

Conclusions .......................................................................................... 47 References ............................................................................................ 50

3

IntroductionThese separate stories sing a common theme. If “Piracy” means using value from someone else's creative property without permission from that creator... then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV... The list is long and could well be expanded. Every generation welcomes the pirate from the last. Every generation – until now.

- Lawrence Lessig, Free Culture1

In the past decade, we have seen a wide array of aggressive, litigious anti-piracy measures being taken

by media conglomerates and copyright trade associations, from sweeping, heavily-criticized copyright

enforcement bills to law suits against not only founders of the world's most trafficked file sharing

sites, but also against individual file sharers and private persons. As Lawrence Lessig questions, “was

Walt Disney a pirate? Would doujinshi be better if creators had to ask permission? Should tools that

enable others to capture and spread images as a way to cultivate or criticize our culture be better

regulated? Is it really right that building a search engine should expose you to $15 million in

damages? Would it have been better if Edison had controlled film? Should every cover band have to

hire a lawyer to get permission to record a song?”2 I'm not entirely new to the topics discussed in this

thesis. I have been following developments in file sharing lawsuits and politics for years, largely via

tech news reports and journalism citing academic studies and legal proceedings. While this thesis by

no means constitutes any conclusive report, I have attempted to map out the most prevalent (and more

publicly accessible) pattern of industry behaviour when it comes to file sharing, which predominantly

take the form of highly aggressive anti-piracy measures. I discuss file sharing as a basic reality of the

digital era and internet culture, and how the largest and most organized, and most expensive industry

efforts concerning it have been received by academics, journalists, specialists, and, perhaps most

importantly, the public at large. Of course, blanket terms such as “the industry” and “big content” are

generalizations. In this thesis, I use them in reference to a number of media conglomerates and

copyright trade associations which I specify whenever relevant in the coming chapters, including the

Motion Picture Association of America, the Recording Industry Association of America, the

International Federation of the Phonographic Institute, Time Warner, Viacom, News Corporation,

Disney, Universal Music, Comcast / NBC Universal, and so on.

1 Lawrence Lessig, Free Culture, [New York: The Penguin Press, 2004], 612 Ibid, 78

4

The central finding in my discussion of high-profile anti-piracy measures is that illegal file sharing is

not per definition antithetical to purchasing behaviour, and that as such the actions taken against it in

the past decade are grossly disproportionate in their severity and ramifications to any industry losses,

real or imagined. Naturally, this cannot be discussed effectively without relevant antithetical

arguments, which from the side of big content often takes the form of the “file sharing is theft”

analogy that I scrutinize from multiple angles throughout this thesis. In the chapter Differing

Definitions, a number of university studies on file sharing and purchasing behaviour have been

selected based on their academic merit, scope, and extent of research; with the aim to explore the

relationship between illegal downloads and legal purchases. An effort has been made to select studies

from various nations in order to invoke the international quality of internet trends. I have also selected

studies based on chronology, that is, to discuss not only the most recent findings but also those from a

decade back, in order to hopefully provide some degree of historical comparison.

In the chapter Market Cleaning, I discuss the copyright industry's apparent preference for restrictive,

heavy-handed legislation rather than for adaptation and incorporation of emerging technological

innovations and evolving digital business models. I question the fruitfulness of discussing the finer

points of to what extent it's morally wrong for kids to be downloading songs and movies, when

copyright lobbyists are making concerted international efforts to police the internet in a fashion

vigorously opposed by famous human rights organizations, IT market giants like Google and

Facebook, and millions of citizens across the globe. As is the core of my thesis, there is a

disproportionality at work that to me precludes the consideration of file sharing as a threat that

somehow justifies these measures. While discussing the Stop Online Piracy Act (SOPA), the

PROTECT IP Act (PIPA), the Anti-Counterfeiting Trade Agreement (ACTA), the Cyber Intelligence

Sharing and Protection Act (CISPA), and similar legislative attempts by big content, I cite

corporations such as Google, non-profit digital rights groups, academics, legal and tech experts, tech

journalism, and politicians to give breadth and scope to the multitude of problems associated with

these acts and bills.

Of particular significance to my discussion of anti-piracy blunders is that file sharing is a social and

culture norm, as is established in Cybernormers research and the University of Amsterdam's 2010

study “Legal, Economic and Cultural Aspects of File Sharing,”3 whose findings I discuss at some

length. Because of this normative nature, industry attempts at criminalizing file sharing become

untenable when the vast majority of youth are participating, and there is essentially no social stigma

3 Nico van Eijk, Joost Poort, and Paul Rutten, ”Legal, Economic, and Cultural Aspects of File Sharing,” Communications & Strategies, nr 77 [1st Q. 2010]: 35.

5

associated with illegal downloading. As I examine in the chapter Image Problems, private persons

have in the past and are currently facing millions in fines for downloading and file sharing a few songs

or movies. These lawsuits may aim to make examples of small-time file sharers in order to make an

example for the general public, but I posit that they only serve to heighten youth disregard for the law

in this respect and distrust toward lawmakers. The cases I discuss have been selected for public

profile: famous examples of heavy-handed lawsuits against private persons and file sharing

organizations form part of the pattern of litigious behaviour from big content and media

conglomerates. I also draw in some historical examples in establishing this pattern as in my opinion

nothing new, but rather part of an old tradition, as well as Lessig's conflicting take on this conclusion.

I have avoided discussing The Pirate Bay trial at length for fear of redundancy due to TPB's extremely

high profile and very extensive media coverage.

It will be no secret to readers of this thesis that I am partial to empirical evidence and its interpretation

and contextualization. Sources have thus been selected with particular regard to this preference,

though I do incorporate some more philosophical standpoints, such as John Hartley's analogy of the

trickster entrepreneur; and make use of previous theoretical groundwork, especially Lawrence Lessig's

extensive look at big media, law and technology in Free Culture. The focus on public opinion and

online culture also incorporates aspects of fan studies, once again relevant to the discussion of file

sharing as a social and technological norm.

I am not a fence-sitter on these issues. As Rasmus Fleischer suggests in Efter The Pirate Bay, the

internet ecology is a place in which we all live and participate, and as such, “all form av kritisk distans

är därför omöjligt.”4 Essentially, the main goal of this thesis is to discuss “the inescapable realities of

piracy that media companies refuse to acknowledge,”5 and to explore how the refusal to acknowledge

those realities is perceived and received by file sharers and the public at large. This is my standpoint,

and the springboard for all discussion that follows. Much like Paul Tassi's Forbes article, “You Will

Never Kill Piracy and Piracy Will Never Kill You,” this thesis is not necessarily intended as a pro-

piracy piece, but rather a delineation of the problematic of the largest, most expensive, and highest

profile anti-piracy measures in the past decade. I have also mainly avoided attempts at categorizing

file sharing into good piracy versus bad piracy, for reasons that will hopefully become apparent by the

end of the Greedy Scofflaws or Valued Customers section of this thesis.

4 Translation: ”All form of critical detachment is therefore impossible.”Rasmus Fleischer, ”Femton gastar på en död mans kista – om framtidens nätpolitik,” Efter The Pirate Bay, eds Jonas Andersson and Pelle Snickars, [Värnamo: Fälth & Hässler, 2010], 280

5 Paul Tassi, ”You Will Never Kill Piracy, and Piracy Will Never Kill You,” Forbes, 2 Mar 2012, http://www.forbes.com/sites/insertcoin/2012/02/03/you-will-never-kill-piracy-and-piracy-will-never-kill-you/3/ [checked 3 May 2013].

6

Fleischer criticizes a discussion of internet politics that portrays “pirates” on one end and “anti-

pirates” on the other, which he feels oversimplifies the importance of internet politics discussions.

Ändå envisades vissa med att upprepa mantrat om ett skyttegravskrig mellan pirater ochantipirater. Många ledarskribenter och forskare har gjort det till en vana att alltid först måla upp en sådan bild, för att sedan bekvämt placera sig i ett nyanserat mittfält [...]6

It is not my intention to pretend to possess an objective vantage-point in some sort of a two-sided

trench war. I would agree with Fleischer that describing the situation as trench warfare is inaccurate:

the past decade's anti-piracy measures have in my opinion been more of a smackdown, or “a big game

of whac-a-mole.”7 As will be examined, the disproportionality of big content's legal actions against file

sharers, whether they be the founders of world-famous organizations like TPB or individuals that

downloaded a few songs or movies, sooner resembles a witch-hunt than a war between two opponents,

where big content and copyright lobbyists seemingly aim to scare the file sharing masses straight by

making examples. I will also provide examples of how this image of two sworn enemies on opposite

sides in fact more complex, including studies showing pirates as big purchasers; the fact that the most

outspoken opponents of anti-piracy legislation proposals SOPA/PIPA/ACTA etc were also outspoken

opponents of piracy; and strange-bedfellow examples of piracy and big content cross-pollination.

Fleischer also laments media dramatization of anti-piracy measures: “Nyhetsjournalister har fortsatt

att frossa i bilderna av skepp och segel när nätpolitiska strider dramatiseras”8 (though we can question

if the term “internet-politics battles” is functionally different from the term “anti-piracy war”).

But can we really lament media dramatization when the events themselves are in fact rather absurdly

dramatic without any embellishment? Kim Dotcom was extracted from his manor during a two-

helicopter FBI-advised raid conducted by police armed with Bushmaster M4 rifles, Glock pistols,

sledgehammers, and saws.9 26 year old Aaron Swarz did commit suicide following extended legal

proceedings during which the charges predicted against him climbed to 35 years in prison and millions

6 Rasmus Fleischer, op. cit., 260

Translation: Yet some still insist on drumming the mantra of a trench war between pirates and anti-pirates. Many pundits and researchers have made a habit of first painting up such a picture and then conveniently positioning themselves in a nuanced middle field.

7 Nick Bilton, ”Internet Pirates Will Always Win,” The New York Times, 4 Aug 2012, http://www.nytimes.com/2012/08/05/sunday-review/internet-pirates-will-always-win.html [checked 5 May 2013].

8 Rasmus Fleischer, op. cit., 260

Translation: News reporters have continued to revel in dramatisations of internet-politics battles with ships-and-sails imagery.

9 Bryan Gruley, David Fickling, and Cornelius Rahn, ”Kim Dotcom, Pirate King,” Business Week, 15 Feb 2012, http://www.businessweek.com/articles/2012-02-15/kim-dotcom-pirate-king [checked 4 May 2013].

7

in fines for granting free access to JSTOR academic articles. Police in Finland did raid and confiscate

a 9-year old girl's Winnie the Pooh laptop under suspicion of her file sharing activities. In many cases,

I feel it is little more than wishful thinking that these actions should be part of a more nuanced

conglomerate policy towards file sharing. Fatigue with the media portrayal of the “war on piracy” is in

my opinion somewhat of a misfire, because responsibility for it lies by and large not at the fingertips

of journalists and academics, but at the hands of the corporations conducting these lawsuits and

drafting draconian legislation proposals. Perhaps the frustration with this situation stems from a sense

of discomfort that the film and music industries continue to behave illogically in response to file

sharing technology. Which further leads to the question: “why are they doing this?” If the industry

actors “know” that they won't stop piracy, as has been suggested by academics and pundits in the past

(for example, by BBC writer Daren Waters in his 2009 blog article, “The Pirate Bay Beached But Not

Sunk”), why do they continue with heavy-handed anti-piracy measures? I hoped my research might

also shed some light on this question, if only as far as my own understanding is concerned, and to

some extent it has, as will be explored in the coming chapters.

A significant limiting agent in this thesis has been the page cap. File sharing technology and the

politics surrounding it is an expansive and complex hot topic. Multiple new cases, updates, ISP and

hosting announcements, industry-worker interviews and other relevant developments continued to pop

up as I wrote, and while I have made every effort to select examples based on the criteria outlined in

this introduction, at some point, there has to be a cut-off. This thesis naturally cannot be a conclusive

report on anti-piracy measures, but it can serve as a look at certain aspects of some of the most high-

profile examples of these measures, whether they target international trade law or file sharers on an

individual scale.

8

Differing Definitions: Immaterial Property as Information, Copying as Sharing, and File Sharing as Culture

There is a distinct difference in the manner in which file sharing and digital files are defined by media

conglomerates and their anti-piracy lobbyists on one side, and by users, Pirate Parties, and sites such

as The Pirate Bay on the other. Whereas the former have been drumming the rather overly-simplistic

(and, as we shall soon explore, erroneous) “Piracy is Theft” mantra since the early 2000's, the latter

are inclined to define digital files as information rather than intellectual property, and to further

contextualize this belief in the ideology of free culture and the free, horizontal flow of information. In

their list of party principles, the Swedish Pirate Pirate underlines the connections between digital files

as information and the ideology of spreadable culture with something of a populist slant:

[M]ycket av kulturen, precis som kunskapen, [har] under större delen av historien varit ett privilegium för ett fåtal. De senaste årens tekniska utveckling skapar emellertid stora möjligheter för allt fler att både uppleva, utöva och försörja sig på kultur.

I dag kan många olika former av kultur kopieras och spridas fritt och på så sätt nå människor som annars aldrig skulle kunna ta del av den. Aldrig tidigare har unga svenskar haft så många olika musikstilar i sina samlingar. Aldrig har det varit så lätt att få tag på udda filmtitlar. Aldrig har så många människor i tredje världen haft tillgång till ett så stort och varierat kulturutbud.10

We may term this stance as cybertarianism if we wish, with some groups, notably hacktivist

organization Anonymous and their characteristic use of Guy Fawkes masks, embodying the term more

than others. Exemplary of the file sharer's stance of spreadable culture and the free exchange of

information is Piratbyrån's11 copyright tag alternative, “kopimi” (copy me), designed in 2005 to

signify the very opposite of a copyright disclaimer: that the author wants their particular work to be

copied and redistributed for any purpose. That Pirate Parties and file sharers identify digital files as

information and culture which should be free to flow horizontally between users is crucial to

10 Piratpartiet, ”Piratpartiets principer,” Website Piratpartiet, entry published 19 May 2012, http://www.piratpartiet.se/politik/piratpartiets-principer/ [checked 15 Apr 2013].

Translation: ”Throughout the greater part of history, culture and knowledge have largely been a privilege for the few. In recent years, however, technological innovations have created great opportunities for more and more people to experience, practice, and earn a living through cultural works. Today, many forms of culture can be copied and spread freely, thereby reaching people who otherwise would never have access to them. Never before have young Swedes had so many different styles of music in their collections. Never before has it been so easy to get a hold of rare film titles. Never before have so many people in third world countries had access to such a varied and extensive selection of cultural works.”

9

understanding their stances on claims of copyright infringement. Quotations in the style of Bernard

Shaw's in the image on the following page are commonfare among such groups online, as are mock-

ups of the MPAA's “Piracy, It's a Crime” campaign that has been an internet laughing stock since its

inception, to which we will return later during discussion of image. The notorious Pirate Bay

unsurprisingly shares these definitions:

The Pirate Bay is the world’s largest file sharing site.Since its launch in 2003, it has maintained a strong stance for internet freedom and against censorship.It is run by dozens of individuals from all around the world, all with the same values of liberty, kopimi and progressiveness.12

In another display of ideological agreement, Wikileaks founder and editor-in-chief Julian Assange and

Pirate Bay founder Gottfrid “anakata” Svartholm Warg released the following photos online in early

March 2013:

11 Piratbyrån (The Pirate Bureau) was a thinktank group established in 2003 as a counterpoint to the Swedish Anti-Piracy Bureau. Piratbyrån also started The Pirate Bay bittorrent tracker site in 2003. Piratbyrån 'disbanded' in 2010, believing they had served their purpose in helping file sharers become more active and vocal. Former Piratbyrån member Marcin de Kaminiski, a researcher and PhD at the Department of Sociology of Law at Lund University in Sweden, told the BitTorrent specialist weblog TorrentFreak at the time of disbanding: “By proudly standing up for the ideas of a whole generation of internauts and taking the fights no one else did, Piratbyrån worked as catalyzers when it came to understanding the current evolution of culture, clusters and chaos. While other actors have been trying to deliver answers, Piratbyrån has been very focused on targeting problems of the present by searching for the right questions.” The domain piratbyran.org still exists, though currently displays only the words ”stängt för eftertanke” (closed for reflection), as well as a link to the group's forums, which are still functional. -Ernesto Van Der Sar, “Pirate Bay's Founder Group 'Piratbyrån' Disbands,” Torrent Freak, 23 Jun 2010, http://torrentfreak.com/pirate-bays-founding-group-piratbyran-disbands-100623/ [checked 16 Apr 2013].

12 The Pirate Bay, ”Blog,” blog entry posted 18 Feb 2013, http://the piratebay.se/blog [checked 16 Apr 2013]. *Note: at the time of writing this section, TPB ranked the 72nd most visited and viewed site globally. Sites ranking above TPB are or are related to Google, Microsoft, Yahoo, Twitter, Wikipedia, Amazon, and so on – that is to say, true giants.

10

Illustration 1: uploaded to The Pirate Bay's Facebook page March 3rd, where the image currently has over 10 000 likes.

making clear the connection between their respective criminalization and desire for the free flow of

information, where 'free' is defined as freedom from persecution by governments and media

conglomerates for providing online access to that information, be it leaked documents or torrent

trackers. Svartholm Warg and other TPB associates have also in the past assisted Wikileaks on

multiple occasions.13

In 2008, four and a half years prior to his tragic death,14 programmer and internet activist Aaron

Swartz released his “Guerilla Open Access Manifesto” in which he expressed his desire to make the

privatization of knowledge a thing of the past via file sharing:

You have been sneaking through holes and climbing over fences, liberating the information locked up by the publishers and sharing them with your friends. But all of this action goes on in the dark, hidden underground. It’s called stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew. But sharing isn’t immoral — it’s a moral imperative. Only those blinded by greed would refuse to let a friend make a copy.15

While Swartz was referring to “pure information” in the sense of academic articles, books and

texts, and not to entertainment industry products specifically, many file sharers and copyright

holders alike do not distinguish between the two (and, as we will see, this distinction did not

spare Swartz at the hands of federal prosecutors). Lawyer and Researcher Stefan Larsson of

Lund University in Sweden, one of the founders of Cybernormer.se,16 has at length discussed

this difference in definition in terms of social norms contra legal text, with particular regard to

the 'theft' comparison drawn by copyright holders and media conglomerates. In an interview

with BitTorrent specialist weblog TorrentFreak, Larsson outlines the problematic with this theft-

metaphor and how its use affects legal proceedings, taking issue with the assumption that every

file copied is equivalent to a purchase lost. “Following this conception,” says Larsson, “some

iPods could be valued at millions of dollars and a file-sharing service could aid in copyright

13 Ernesto Van Der Sar, ”Pirate Bay Founder Helped Wikileaks On Several Fronts,” Torrent Freak, 5 Feb 2013, http://torrentfreak.com/pirate-bay-founder-helped-wikileaks-on-several-fronts-130205/ [checked 16 Apr 2013].

14 See section: An Ongoing History of Bad Blood, Scandals, and Persecution15 Aaron Swartz, ”Guerilla Open Access Manifesto,” Essay written July 2008, http://archive.org/details/GuerillaOpenAcc ess Manifesto [checked 16 Apr 2013].

16 Cybernormer.se is an academic blog aimed at examining “processes of norm creation in young web cultures. It is administratively placed at Lund University and the department of sociology of law, and was started by Dr Måns Svensson, Stefan Larsson and Professor Håkan Hydén, with the official starting date 1 May 2009.” Stefan Larsson, ”Cybernorms – processes of norm creation in young web cultures,” Cybernormer, entry published 14 Apr 2010, http://cybernormer.se/2010/04/14/cybernorms-%E2%80%93-processes-of-norm-creation-in-young-web-cultures/ [checked 16 Apr 2013].

11

infringements representing more value than the Gross Domestic Product of entire countries.”17

The media industry is unfortunately rife with this untenable form of reasoning, of which the

astronomical charges brought against individuals and file-sharing sites are of course evidence.

Cybernormer's 2009 research paper concluded that there is “a large discrepancy between the

viewpoint of copyright legislation and of young people regarding what is right and wrong:

File sharers do not believe copyright legislation should interfere with how they use the internet in their living rooms. [...] The discrepancy between legal and social norms bears witness to a growing conflict between the old and new, between the analogical and the digital, or between the mature industrial society's established powers structure and the emerging network-society's cheeky lack of respect. As the establishment tries to maintain copyright laws with methods that worked during the analogical era, younger generation’s respect for society’s norms are hollowed out in a manner that in the long run will not benefit anyone. It is striking, that the respondents feel no social pressure to follow the law, whether from parents, friends, teachers, neighbours, etc. Quite simply, there are no social norms to back up the judicial norms in this field.”18

What Larsson and Cybernormer's researchers identify as a discrepancy between how judiciary

systems and file sharers view reality, I have chosen to term a difference in definition, though the

two are quite happily interchangeable. In Cybernomer's research, respondents across the board

tend to underline the unjustness of current copyright law enforcement, and how it is seen by

youth as an unreasonable attempt at criminalizing large segments of the population.19 Revenue

has not been truly proven to be lost as a result of file-sharing, and users online are acutely

aware of this.

17 Ernesto Van Der Sar, ”Piracy is NOT Theft: Problems of a Nonsense Metaphor,” Torrent Freak, 4 Nov 2011, http://torrentfreak.com/piracy-is-not-theft-111104/ [checked 16 Apr 2013].

18 Måns Svensson and Stefan Larsson, Social Norms and Intellectual Property [research report by the Dept. of Sociology and Law, Lund University, 2009], 59.

19 Ibid, 54-5512

13

Illustration 3: "Piracy is Not Theft" by Wendy D. Stolyarov, rationalargumentator.com. Similar images in this style abound, this one in particular was chosen for highlighting attempts at creating artificial scarcity in a digital “age of plenty.”

llustration 2: "Sharing is Illegal" MPAA campaign spoof. Author unknown. Source varies, eg. 9gag.com

Illustration 4: Images in this style are common online, with this one in particular having over 4600 likes on The Pirate Bay's Facebook page at the time of writing this thesis. The multiplication effect of filesharing is often of focus, as in the two MPAA mock-ups above.

Greedy Scofflaws or Valued Customers? Illegal Downloads and Legal Purchases are not Mutually Exclusive

Already in 2005, a digital music research firm found that regular file sharers of copyright protected

material (so-called “illegal downloaders”) spent over 7 times more on legal digital music purchases

per month on average than did their non-file-sharing counterparts.20 “The research clearly shows that

music fans who break piracy laws are highly valuable customers,” said the firm's director Paul

Brindley.21 One year prior, Harvard Business School professor Felix Oberholzer-Gee and his co-author

Koleman Strumpf published a paper on their findings concerning music piracy and downloads,

concluding that not only did music piracy not hurt legitimate CD sales, but even boosted sales of

certain kinds of music.22 The study explains this correlation as possible owing to file sharers being a

combination of two demographics: one that is “money-poor but time-rich, meaning they [c]ouldn't

have bought the songs they downloaded,” and the other being “samplers, an older crowd who

downloads a song or two and then, if they like what they hear, go out and buy the music.”23 In a

question-and-answer session regarding the practice of suing customers, Oberholzer-Gee stated “the

RIAA's legal strategy is hopeless and smacks of short-sighted panic.”24 How unfortunate that such

lawsuits continue to dominate the scene of copyright and file-sharing, nearly 10 years on.

A 2007 study by Canadian government ministry Industry Canada came to the similar conclusions,

finding “no direct evidence to suggest that the net effect of P2P file-sharing on CD purchasing is

either positive or negative for Canada as a whole,”25 (these were aggregate results, that is, for file

sharers and non-file sharers taken together). Conversely, just as with Oberholzer-Gee's results, the

study found “a strong positive relationship between P2P file-sharing and CD purchasing among the

subgroup of P2P file sharers,” meaning that “among Canadians actually engaged in it, P2P file-sharing

increases CD purchasing.”26 Notable among other findings of the study was that half of the file shared

20 BBC News, ”Downloading 'myths' challenged,” BBC News, 27 Jul 2005, http://news.bbc.co.uk/2/hi/4718249.stm [checked 16 Apr 2013]. Firm called ”The Leading Question.”

21 Ibid 22 Sean Silverthorne, ”Music Downloads: Pirates – or Customers?” Harvard Business School, entry posted 21 Jun 2004, http://hbswk.hbs.edu/item/4206.html [checked 16 Apr 2013].

23 Ibid24 Ibid25 Birgitte Andersen and Marion Frenz, The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music: A Study for Industry Canada [report by the Department of Management, University of London, 2007], 33.

26 Ibid14

tracks “were downloaded because the individuals in question wanted to hear them before buying them

or because they didn’t want to buy the entire CD just for that one song;” and that one quarter were

downloaded “because they were not available for purchase anywhere.”27 Both reasons highlighted a

failure in the available official distribution methods at the time to meet customers' needs in a digital

era.

In 2009, a study done by the Norwegian Business School BI found that “those who have used unpaid

downloading have paid to download music an average of 75 times, compared with 7 times for those

who have NOT used unpaid downloads. In other words, the people who use unpaid downloading have

ten times the consumption of paid downloads than those who do not use unpaid downloading”28 – and

Spotify and free ad-funded streaming services were not even included! That means that without taking

Spotify purchases into consideration, the file sharers or 'pirates' involved in BI's study bought ten

times more than their non-file-sharing counterparts, echoing the findings of previous studies in this

matter. When comparing BI's 2009 results to Industry Canada's 2007 study, we notice the following

distinction:

More people use paid downloading than unpaid services, both in the population as a whole and in the 15-20 age group. The number who use both types of downloads is more than a hundred per cent higher among those aged 15-20 than in the general population. However, the youngest pay for nearly twice as many downloads as compared with the number of times they use unpaid downloads. This could indicate that an increasing number of people want to pay for the music they find on the internet.29

I don't feel that this finding indicates a changed want in young consumers, but rather reflects an

improvement in official online media distribution channels. Spotify, for example, started up in

October 2008, and though the survey explicitly did not include Spotify itself, cross-pollination

between such services and online stores is not unlikely. BI's study also showed that CD purchases

were still somewhat higher among those using unpaid downloading (file-sharing) for the general

population, while the reverse was true for the 15-20 age group. This suggests while filesharing is

indicative of an invested fan of music who purchases more than non file sharers, the youngest

demographic examined likely see physical CD discs as less desirable than digital file purchases.

In the 2010 study “Legal, Economic and Cultural Aspects of File Sharing” published by the Institute

27 Ibid, 3; also: Marketing Charts Staff, ”Study: P2P Music Downloads Increase Music CD Sales,” Marketing Charts, 7 Nov 2007, http://www.marketingcharts.com/interactive/study-p2p-music-downloads-increase-music-cd-sales-2287/ [checked 16 Apr 2013].

28 BI Norwegian Business School, ”Downloading music and CD purchases,” BI Norwegian Business School, news posted 23 Apr 2009, http://www.bi.edu/about-bi/News/News-archive-2009/Downloading-music-and-CD-purchases/ [checked 16 Apr 2013].

29 Ibid15

for Information Law at the University of Amsterdam, researchers aimed to examine the short and

long-term economic and cultural effects of file-sharing on music, film, and games. Among their

findings was that the music industry was the only one to sustain losses in the early and mid 2000s, and

that only part of this decline could be attributed to file-sharing. “Despite the losses for the music

industry, the increased accessibility of culture renders the overall welfare effects of file sharing

robustly positive. As a consequence the entertainment industries, particularly the music industry, have

to explore new models to sustain their business.”30 Unsurprisingly, of the three industries examined,

the one whose digital distribution technology is most up to date, the gaming industry, experienced the

best growth and stability.31 The study also identifies file-sharing as a by-product of the digitalisation of

information and communication32 (not of lawlessness, greed, or ignorance, as it is often described by

anti-piracy organizations and copyright lobbyists).

While this study maintains that the effect of file-sharing on sales in specific is ambiguous, it does

identify the positive effects of sampling: “consumers are introduced to new music and this creates new

demand;” as well as the neutral effects of 'money-poor but time rich' file sharers: “when downloading

serves consumers whose demand is driven by a lack of purchasing power, the effect on sales is

neutral;”33 thus mirroring the 2004 Harvard Business School study's findings. When discussing the

negative effects of file-sharing, concerning the scenario in which downloading replaces an official

purchase, the study notes that there appears to be no clear relationship between file-sharing and the

decline of sales, and had as one of its main conclusions that “not every file downloaded does result in

30 Nico van Eijk, Joost Poort, and Paul Rutten, ”Legal, Economic, and Cultural Aspects of File Sharing,” Communications & Strategies, nr 77 [1st Q. 2010]: 35.

31 Ibid, 3732 Ibid, 3833 Ibid, 45

16

Table 1: In the table above from the Univeristy of Amsterdam's 2010 study “Legal, Economic and Cultural Aspects of File Sharing,” the difference in purchasing behaviour between file sharers and non-file sharers surveyed in the Netherlands is displayed. Across the board, file sharers either purchase more than non-file sharers, or there is no difference between the two groups.

one less CD, DVD or game sold.”34

In 2012, the American Assembly, a research centre at Columbia University, discussed their findings

concerning media piracy in Germany and the United States, concluding that their “data is quite clear

on this point and lines up with numerous other studies: The biggest music pirates are also the biggest

spenders on recorded music [around 30% higher among US P2P users].”35 In 2013, the results of the

American Assembly's research was published in “Copy Culture,” whose conclusions, needless to say,

are very similar to those of the aforementioned studies I have been discussing. “Copying and online

file-sharing [were defined as] mostly complementary to legal acquisition, not strong substitutes for it,”

and P2P file sharers in particular were identified as “heavy legal media consumers.”36 Much akin

Cybernormers' description of file-sharing as a social norm, the American Assembly also reported that

“among adults under 30 in both countries, around 70% copy, share, or download media for free;”37 and

that between 73 and 79% of Americans and Germans under 30 find it reasonable to share content

(defined as copying or file-sharing, that is, the recipients are not paying) with family and friends.38

One interesting query from the study asked if internet users would be willing to pay a small broadband

fee in return for legalized file-sharing – that is, should file-sharing be legalized, as proposed by several

European political parties and some copyright stakeholders, would respondents be willing to pay a

compensation in exchange, and if so, how much? Results showed that 61% of Germans and 48% of

Americans “would pay a small broadband fee to compensate creators in return for legalized file

sharing;” and the median willingness to pay sat at “$18.79 per month in the US and €16.43 in

Germany.”39

In their annual report, Stiftelsen för Internetinfrastruktur's 2012 edition of Svenskarna och Internet

(Swedes and the Internet) found that 25% of all Swedish internet users over the age of 12 file share, a

figure which has held steady since 2011.40 An entire 44% of Swedish internet users between the ages

34 Ibid, 4635 Joe Karaganis, ”Where do Music Collections Come From?” The American Assembly at Columbia University, posted on 15 Oct 2012, http://piracy.americanassembly.org/where-do-music-collections-come-from/ [checked 16 Apr 2013].

36 Joe Karaganis and Lennart Renkema, Copy Culture [United States of America: The American Assembly, 2013], http://piracy.americanassembly.org/wp-content/uploads/2013/01/Copy-Culture.pdf pg 5, [checked 16 Apr 2013].

37 Ibid, 538 Ibid, 639 Ibid, 840 Olle Findahl, Svenskarna och Internet 2012 [Stockholm:Danagårds LiTHO, Ödeshög, 2012], https://www.iis.se/docs/SOI2012.pdf pg 15 [checked 1 May 2013].

17

of 21 and 35 file share, as do 45% of 12 to 20 year olds.41 The study also notes that in the period

between 2009 and 2012, not only are more teenage Swedes file-sharing, but that the frequency of file-

sharing among those that do is actually increasing.42 As we will return to later, top-heavy legislation

and scare tactics have not shown to be effective means of 'combating' file-sharing. The study notes

that file sharers subscribe to music services (ex. Spotify) more often than non-file sharers, but

maintains that no positive or negative correlation can be found between music purchases and file-

sharing.

It is worth mentioning that some researchers wish to abstain from making so-called political

statements with the results of their studies. According to Svenska Dagbladet, one of the researchers

involved in the 2010 Dutch study “Legal, Economic and Cultural Aspects of File Sharing” mentioned

prior stated that he did not wish the results to be interpreted as file-sharing being beneficial to sales,

but rather that the industry should be aware that the file sharers they take to court are the same people

who are buying their products legally.43 This statement I find rather contradictory, particularly for a

study whose main conclusions read:

Conversely, only a small fraction of the content exchanged through file sharing networks comes at the expense of industry turnover. This renders the overall welfare effects of file sharing robustly positive. [...]

The survey held among Dutch Internet users has shown that file sharing is here to stay and that people who download are at the same time important customers of the entertainment industry. The point of no return has been reached and it is highly unlikely that the industry will be able to turn the tide. What is more, there is no guarantee that a situation will ever arise in which a majority of digital downloads will come from an authorized source.44

We can also question if there really is a fundamental difference between file sharing itself being

beneficial to sales and file sharers being valuable customers, when file sharers buy more on average

than non file sharers. Harvard Business School's 2004 study found that the two were indeed connected

via the 'sampler' demographic which resulted in boosted sales for certain kinds of music. Swedish

then-doctorate student Daniel Johansson interviewed in the same SvD news article said he felt it

“dangerous” that both Pirate Party representatives and recording company representatives choose to

interpret data from their respective ideological standpoints (though I would like to see the latter

attempt to turn this particular research into evidence for file-sharing harming sales, since results

41 Ibid, 1742 Ibid, 3243 Martin Hanberg, ”Fildelarna köper mest,” Svenska Dagbladet, 17 May 2010, http://www.svd.se/naringsliv/digitalt/fildelarna-koper-mest_4730737.svd [checked 1 May 2013].

44 Nico van Eijk, Joost Poort, and Paul Rutten, op. cit., 51-5218

showed this was not the case). Perhaps these academics are attempting to shield themselves from

being trivialized by the media: Rasmus Fleischer's run-in with the Swedish newspaper Fokus, whereby

a photo editor asked Fleischer for a photograph of himself wearing an eye-patch “like a real pirate”

comes to mind (Fleischer, who is not a fan of pirate symbolism nor identifies himself as a pirate,

refused).45 Perhaps this is indicative of the academic attempt to appear neutral and without bias,

unswayed by such concerns as ideology and human politics: an impossible self-image that Fleischer

himself at one point criticized.46 There is also a third, and rather likely possibility behind the

contradictions in the article: perhaps Svenska Dagbladet's own political slant was at play at the time of

writing. Regardless, despite his apparently unwillingness to draw conclusions during the SvD

interview, Daniel Johansson's own 2009 joint study found that “total artist revenues have increased in

Sweden by 25.7% since 2000, and 11.3% since 2005.”47 Indeed, the belief that file-sharing has caused

hemorrhaging in the entertainment industry does not appear to be well-founded. “As the major

copyright industries revealed in a recent report [the International Intellectual Copyright Alliance's

2011 Report on Copyright Industries in the U.S. Economy], they pay better than most American jobs,

are outperforming the economy, and are selling record amount of product overseas. As for

employment, it has fallen just mildly during the worst economic slump in 80 years.”48

When examining figure for (American) annual movie box office ticket sales, we see generally

increasing figures for revenue since 1994. While fluctuations do occur, particularly with ticket sales,

record gross revenue figures have routinely been set, including 2012's new record high box office of

over $10.8 billion USD, almost double the gross revenue of 1995.49 International box office revenue

has also been on the upswing: according to the MPAA, global box office gross in USD rose from

$26.2 billion in 2006 to $27.7 billion in 2008, to $29.4 billion in 2009, $31.6 billion in 2010, and

finally up to $32.6 billion in 2011.50

45 Rasmus Fleischer, ” 'Piratrörelsen' har aldrig funnits,” Copyriot blog, entry published 28 Sept 2012, http://copyriot.se/2010/09/28/piratrorelsen-har-aldrig-funnits/ [checked 1 May 2013].

46 Rasmus Fleischer, op. cit., 260 47 Daniel Johansson and Markus Larsson, The Swedish Music Industry in Numbers, [report via KTH Royal Institute of Technology, Stockholm, 2009] http://ec.europa.eu/avpolicy/docs/other_actions/col_2009/pub/kth_annex.pdf pg 6 [checked 1 May 2013].

48 Nate Anderson, ”White House-backed antipiracy video is Reefer Madness for the digital age,” Ars Technica, 30 Nov 2011, http://arstechnica.com/tech-policy/2011/11/white-house-backed-antipiracy-video-is-reefer-madness-for-the-digital-age/ [checked 1 May 2013].

The study discussed in the article can be found here: http://www.iipa.com/copyright_us_economy.html 49 Box Office Mojo, ”Yearly Box Office,” updated 30 Apr 2013, http://www.boxofficemojo.com/yearly/?view2=domestic&view=releasedate&p=.htm [checked 1 May 2013].

50 Motion Picture Association of America Inc., ”Theatrical Market Statistics 2011,” http://www.mpaa.org/resources/5bec4ac9 - a95e-443b-987b-bff6fb5455a9.pdf MPAA.org, pg 4 [checked 1 May 2013].

19

In March 2013, the European Commission published a report entitled “Digital Music Consumption on

the Internet: Evidence from Clickstream Data,” examining the findings of a study by The Institute for

Prospective Technological Studies where the clickstreams of over 16 000 European internet users

were followed. This means that users' visits to, for example, legal and illegal music consumption

websites were recorded and analyzed for correlation. I'm sure at this point in the thesis, readers will be

able to predict what the outcomes of that study were. While “a rather small complementarity” was

found between “illegal downloading” and “legal online purchases” of digital music, “it seems that the

majority of the music that is consumed illegally by the individuals in our sample would not have been

purchased if illegal downloading websites were not available to them”51 – once again, the 'money-

poor, time-rich' demographic that Oberholzer-Gee described in 2005. As for the relationship between

visits to legal and illegal music consumption websites, assuming a causal interpretation, “clicks on

legal purchase websites would have been 2% lower in the absence of illegal downloading websites.”52

Taken at face value, our findings indicate that digital music piracy does not displace legal music purchases in digital format. This means that although there is trespassing of private property rights (copyrights), there is unlikely to be much harm done on digital music revenues. [...]From that perspective, our findings suggest that digital music piracy should not be viewed as a growing concern for copyright holders in the digital era. In addition, our results indicate that new music consumption channels such as online streaming positively affect copyright owners.53

None of the results of these studies54 should come as a surprise, really. Of course the first and most

habitual adopters of new technologies in the digital age are going to be your most valuable customers

as a media corporation in the same era. Why copyright holders continue to view them as the enemy,

despite their own healthy turnovers, is confounding to say the least. File sharers are not thieves

stealing from the pockets of starving artists: they are conscientious consumers who want to be able to

pick and choose which works to support financially. They are youth with limited or no capital to

expend on purchases, making their file sharing practices unrelated to lost purchases. They are music

and movie aficionados of varying tastes and preferences for whom file sharing is the faster, more

convenient, or only available option to gaining access to that particular piece of entertainment they're

looking for. They may file share rarely, once in a while, or every day. For some, it is a political

standpoint, for others, a force of habit, a simple reality of digitalisation.

51 Luir Aguiar and Bertin Martens, Digital Music Consumption on the Internet: Evidence from Clickstream Data [Institute for Prospective Technological Studies Digital Economy Working Paper for the European Commission, 2013/04], http://www.scribd.com/doc/131005609/JRC79605 pg 2 [checked 1 May 2013].

52 Ibid, 1653 Ibid, 1754 An example of a more comprehensive list of studies done on file-sharing can be found at La Quadratur du Net

20

Lessig and other academics and journalists tend to speak of the few “bad eggs” that spoil the bunch,

the greedy pirate that downloads even though he could just as easily purchase, often with the

reassuring assertion that these are a minority of file sharers (certainly, the studies listed prior would

support this). Personally, I would question the importance of discussing these bad eggs at length when

studies on buying and illegal downloading overwhelmingly report no or positive correlations. If

they're out there, the bad eggs are not affecting things empirically enough to make it into the results of

these studies, or to adversely affect figures of growth and stability in the entertainment and copyright

industries – certainly not on the scale that large-scale lawsuits and the recent SOPA/PIPA/ACTA/

CISPA legislation attempts would have us believe. One of the difficulties facing comparisons of “bad”

and “good” illegal downloading is the likely fact that all of our above attempts at categorizing types of

buyers and file sharers are far more fluid and interchangeable in reality. The very same file sharer may

have downloaded content instead of buying it, been introduced to new content via file-sharing and

consequently opted to buy it, and then not been able to afford a third work and therefore downloaded

it. This sort of thing is a much more likely scenario for the greater segment of file sharers, rather than

some sort of large-scale all-or-nothing behaviour; which may explain the ambiguous findings of some

of the studies on 'illegal' downloading, where its effects were at times shown to neither boost nor harm

actual sales, and at times shown to increase purchases. File sharing is, as Cybernormer's research

suggests, a social norm for locating, sampling, and consuming content in a digital milieu, and as such

does not per definition stand antithetical to purchasing behaviour.

Market Cleaning: Restrictive Legislation to Combat Perceived Distributional Competition

If this number of university- and international-level studies have for the past decade repeatedly come

to the same conclusions: that file-sharing and illegal downloading have either no negative effects on

entertainment industry sales, and in some cases even result in increased sales, why have the

entertainment and copyright industries been so aggressively litigious about file-sharing websites and

search engines throughout the same decade? Why the multiple high-profile international lawsuits, the

legal action, the attempts at sweeping multinational copyright legislation so broad in its ramifications

that human rights organizations around the world oppose it? 21

In January 2013, Netflix, probably the film industry's most competitive digital content provider,

reported a total 29.1 million streaming customers, of which 27.4 million were from the U.S; with

revenue rising 8% for the fourth quarter of 2012.55 In December 2012, Spotify announced its figures of

20 million active users, 5 million paid subscribers (1 million from the U.S.), and over one billion user

playlists complied.56 Spotify's funding round one month prior had brought in over 100 million USD

from investors such as Goldman Sachs and Coca-Cola.57 If things are going so well for services at the

(belated) forefront of the industry's own digital distribution, why the continued legal crusade against

file sharing sites and individuals, particularly when simultaneous research and practical facts suggest

the two exist symbiotically? While they're not above grand-standing and self-aggrandizement, I feel

The Pirate Bay was correct to identify these industry actions as attempts at cleaning the market of

(perceived) competition. Their open letter in protest of the SOPA proposal identified as much:

The reason they are always complainting [sic] about "pirates" today is simple. We've done what they did. We circumvented the rules they created and created our own. We crushed their monopoly by giving people something more efficient. We allow people to have direct communication between eachother, circumventing the profitable middle man, that in some cases take over 107% of the profits (yes, you pay to work for them). It's all based on the fact that we're competition. We've proven that their existance [sic] in their current form is no longer needed. We're just better than they are.58

Before we balk at their infamous self-flattery, let us for a moment view The Pirate Bay and similar file

sharing sites owners as “tricksters and entrepreneurs who create new meanings out of the clash of

difference, including the clash of incommensurable systems,”59 as defined by John Hartley in his 2012

book, Digital Futures for Cultural and Media Studies. Hartley suggests that the mythical trickster

gods, Hermes, Coyote, Loki, and so on, make an excellent model for discussing the “very different

figure that stalks the mythology of the creative industries; namely, the [Schumpeterian]

entrepreneur.”60 Much like the entrepreneur (the very word means “between-taker” in French), the

trickster gods of human mythology were destructive creators, using their cunning and oration to

subvert established systems and rules. Even more suitable to our discussion of file sharing and piracy,

55 Dino Grandoni, ”Netflix 4Q 2012 Earnings Show 2 Million User Surge In Subscriber Base ,” Huffington Post, 23 Jan 2013, http://www.huffingtonpost.com/2013/01/23/netflix-4q-2012_n_2536643.html [checked 1 May 2013].

56 Harrison Weber, ”Spotify announces 5M+ paid subscribers globally,” The Next Web, 6 Dec 2012, http://thenextweb.com/insider/2012/12/06/spotify-announces/ [checked 1 May 2013].

57 Ibid58 Ernesto Van Der Sar, ”The Pirate Bay Slams PIPA/SOPA in Public Statement,” Torrent Freak, 19 Jan 2013, http://torrentfreak.com/the-pirate-bay-slams-pipa-and-sopa-120118/ [checked 1 May 2013].

59 John Hartley, Digital Futures for Cultural and Media Studies, [West Sussex: John Wiley & Sons, 2012], 199.

60 Ibid, 20022

the trickster gods were often associated with not only communication, knowledge and commerce, but

also theft.

In spite of all their disruptive behaviour, tricksters are regularly honoured as the creators of culture. [...] I want to argue a paradox that the [trickster] myth asserts: that the origins, liveliness and durability of cultures require that there be a space for figures whose function is to uncover and disrupt the very things that cultures are based on. [...] When he lies and steals, it isn't so much to get away with something or get rich as to disturb the established categories of truth and property and, by so doing, open the road to possible new worlds.61

I posit that we may view the creators of file sharing websites such as MegaUpload and The Pirate Bay

as this type of trickster, “the go-between creator and transgressor of boundaries.”62 What exactly is

being created? Well, increased exposure to new genres and forms of media for file sharers, as was

identified in several of the studies discussed in the previous chapter, is one. The spreading of culture,

information and expression, as maintained by various Pirate Parties across the globe, is another. New,

far more efficient forms of media distribution would be the most obvious technical gain: with the

marvel that is the BitTorrent protocol standing for between 43% and 70% of all global internet traffic

in 2009;63 and streaming technology, which has thus far not fallen target to as aggressive legal action,

on the rise.64 New ways of sharing, exploring, consuming, and by extension creating content. New

platforms, business models, and consumer relations in the IT sphere. New service expectations.

In a 2008 UK Times Labs analysis of the UK music market based on data collected by the Performing

Rights Society and the British Phonographic Institute, figures show that between 2004 and 2008,

while total music industry revenue remained constant, revenue to artists increased, and revenue to

61 Ibid 201, citing Lewis Hyde 199862 Ibid 20063 40% was the lowest figure for the region North Africa, and 70% was the highest for the region Eastern Europe.Hendrik Schulze and Klaus Mochalski, Internet Study 2008/2009 [Leipzig: ipoque GmbH],http://www.ipoque.com/sites/default/files/mediafiles/documents/internet-study-2008-2009.pdf [checked 1 May 2013].

64 If streaming continues to rise in popularity, we can predict the legal action against it may rise to the vehemence of the current action against file sharing. Note for example, the 2011 “Commercial Felony Streaming Act” supported by the MPAA, which proposes up to five years imprisonment for “anyone willfully infringing on copyrights by streaming content for personal financial gain,” where “personal financial gain could equally apply to viewers who avoid service fees and rental costs.” David Dunning, “How Did Streaming Content Create legal Problems?” eHow.com, http://www.ehow.com/info_12184054_did-streaming-content-create-legal-problems.html [checked 1 May 2013].

For discussion on the problematics of viewing P2P and streaming as somehow competing forms of content delivery, see Rasmus Fleischer's text in Efter The Pirate Bay, (2010: 269):“ 'Peer-to-peer är passé' basunerade rubriken till en artikel i Wired, som även den svenska pressen plockade upp. Där rapporterades om en ny studie av den internationella nättrafiken, som visserligen kom fram till att P2P-fildelningen fortsätter att öka i omfattning. Men den ökar inte lika fort som de datamängder av video som strömmar från sajter som YouTube. Fildelningens relativa andel av den totala nättrafiken hade därför minskat från 40 procent (en toppnotering från 2007) till 18 procent. Journalister extrapolerade till en framtida nollpunkt.”

23

record labels decreased.65 These particular results mirror statements by creators of file sharing

websites, proponents of file sharing, Pirate Party politics, and the study results listed in the

prior chapter: one file downloaded cannot be equated to one file stolen, and digital file transfer

technology has loosed big content's distributional monopoly.

MegaUpload founder Kim Dotcom came to the same conclusions as The Pirate Bay in their statement

on SOPA, saying on interview with New Zealand's 3News: “So it's really, in my opinion, the

government of the United States protecting an outdated monopolistic business model that doesn't work

anymore in the age of the Internet and that's what it all boils down to.” While he was pegged as the

poster child for illegal file-sharing, says Dotcom, the government looked the other way on Google,

who gives millions each year to Washington lobbyists.”66 In August 2012, Google agreed to change its

search result algorithms to reflect the “number of valid copyright takedown notices that [they] receive

for any given sites,” so that “sites with high numbers of removal notices may appear lower in

[Google's] results.”67 Critics point out that a ”valid copyright takedown notice” is not in fact a proof

that a site has been violating copyright. “That’s not the 'valid' that they are talking about. What it does

mean is that it is a complaint that is validly formatted. Google doesn’t in fact check whether any

copyrights have been harmed by a site. They look only at the complaints.”68 “The changes are now

beginning to come into effect, with torrent websites such as The Pirate Bay and isoHunt appearing

lower down in the search engine, while legal websites such as iTunes and Spotify have been

elevated.”69 The Pirate Bay's response to the move highlights aspects of competition yet again, this

time pegging Google, as Dotcom did, for their collaboration:

Google just sent out a press release saying that they will lower file sharing systems rankings in their search engine and instead favour our competitors (the old corrupt media industry that is). [...] First you need to know that a very low amount of our traffic actually comes from search engines such as google. If you think about it, you'll understand why - we're competitors. TPB is a search engine just as Google. We only specialize in different

65 Shane Richmond, “The graph the record industry doesn't want you to see,” The Telegraph, 12 Nov 2009, http://blogs.telegraph.co.uk/technology/shanerichmond/100004204/the-graph-the-record-industry-doesnt-want-you-to-see/ [checked 1 May 2013].

Note: Interestingly enough considering the article's ominous title, the original blog entry at Times Online is no longer retrieving. A screengrab of the original graphs is located at Christian Engström's blog.

66 Russia Today, ”Dotcom claims US officials used Megaupload,” Russia Today USA, 13 Mar 2012, http://rt.com/usa/news/dotcom-us-megaupload-american-491/ [checked 1 May 2013].

67 Amit Singhal, “An update to our search algorithms,” The official Google Search blog, entry posted 8 Oct 2012, http://insidesearch.blogspot.co.uk/2012/08/an-update-to-our-search-algorithms.html [checked 1 May 2013].

68 Tim Worstall, ”Google's Changing The Algorithm Again: This Might Not Be A Good Idea,” Forbes, 8 Nov 2012, http://www.forbes.com/sites/timworstall/2012/08/11/googles-changing-the-algorithm-again-this-might-not-be-a-good-idea/ [checked 1 May 2013].

69 Tom Pakinis, ”The Pirate Bay: 'Google rankings change is good for us',” MusicWeek, 17 Aug 2012, http://www.musicweek.com/news/read/the-pirate-bay-google-rankings-change-is-good-for-us/051427 [checked 1 May 2013].

24

methods and links.70

Part of the problem is that these debates seem in many cases to be going parallel: academics may

conclude after click-tracking and surveying thousands of individuals that Digital Rights Management

measures and harsh punishments act as no deterrent to downloading and file sharing, but big content

doesn't listen. In a 2009 BBC blog article, writer Daren Waters suggested that big content has always

known they would never completely eradicate file sharing of copyrighted material: “instead, they want

to drive it to the margins of society” by “educating” file sharers. “The goal has never been the closure

of The Pirate Bay,” writes Waters, “although I doubt they [the IFPI and the MPAA] would say this

publicly. This was always about awareness and education.”71 Awareness and eduction of what,

exactly? The millions in fines and years in prison that await you should you, like Aaron Swartz, file

share, or like Richard O'Dwyer, so much as hyperlink to file sharing sites? 'Education' that takes the

form of making harsh examples of a handful of prolific trouble-makers is not so much education as it

is a threat, an age old scare-tactic hoping to intimidate – a continued image and customer-relations

problem that has unfortunately been front and centre of the entertainment industry's digital distribution

actions in the past two decades. Secondly, Waters may have spoken too soon, as the continued legal

aggression and attempts at introducing sweeping legislation that would facilitate the knockdown of

emergent distribution models which we've experienced from the entertainment industry in the years

since calls his conclusion into question (though he did accurately predict ISPs would be the next

target).

70 The Pirate Bay Blog, ”Google ranking TPB (and others) lower,” The Pirate Bay blog, entry published 15 Aug 2012, https://thepiratebay.se/blog/220 [checked 2 May 2013].

71 Darren Waters, ”Pirate Bay beached but not sunk,” BBC News, entry published 17 Aug 2009, http://www.bbc.co.uk/blogs/technology/2009/04/pirate_bay_beached_but_not_sun.html [checked 2 May 2013].

25

Missed Opportunities: Adaptation Takes a Backseat to Litigation

Whatever the future brings, the time that will pass between now and a 'clean' future is too long for the industry to sit back and wait, without making an effort to innovate. And so the entertainment industry will have to work actively towards innovation on all fronts. New models worth developing, for example, are those that seek to achieve commercial diversification or that match supply and end-user needs more closely. In such a context, criminalizing large parts of the population makes no sense.

- Nico van Eijk, Joost Poort, Paul Rutten, Legal, Economic and Cultural Aspects of File Sharing 72

I am certainly neither the first nor the last to question the bizarre languor we've seen from the film and

music industry when it comes to adopting new and emergent methods of digital distribution, and their

seeming preference for heavy-handed legal wild goose chases (which we will be examining in more

depth in the coming chapters). “The attitude has been of resistance to technological change,”

explained aforementioned American Congresswoman Zoe Lofgren in a 2011 meeting at Santa Clara

University, “and I think with that they are failing to take advantage of the opportunities that new

technologies bring. Content people have a legitimate interest but they have often not thought through

the issues,” stated Lofgren, continuing to cite several examples, including Hollywood's battle against

DVDs when the format was first introduced, only to see them become a major revenue source for

movie companies in years following.73 Of course, it's easy to say “innovate!” and another question

entirely as how to do it – but perhaps pumping money into the adoption and development of the

distribution and service models popularized via file sharing sites, rather than into draconian lawsuits

and lobbying for restrictive legislation, might be a place to start.

On this front, the game industry has been more proactive, and, interestingly enough, does not engage

in these kinds of legal wars against pirates and file sharing websites. Both are indicators of a more

intuitive industrial comprehension of the IT realm in which they operate, and a deeper understanding

of both the technologies involved and the wants, needs, and norms of their consumers. In September

2012, game digital distribution, multiplayer, and communications platform Steam had over 50 million

active user accounts,74 up 10 million from 2011. “During 2011 the platform grew to offer over 1,800

72 Nico van Eijk, Joost Poort, and Paul Rutten, op. cit., 52-5373 Kieren McCarthy, ”Meet Congresswoman Zoe Lofgren: she understands how the internet works,” .Nxt, 22 Sep 2011, http://news.dot-nxt.com/2011/09/22/zoe-lofgren-town-hall [checked 2 May 2013].

74 Valve, ”Big Picture,” Steam official website, http://store.steampowered.com/bigpicture/ [checked 2 May 2013].

26

games to over 40 million accounts. Year-over-year unit sales increased by more than 100% for the

seventh straight year. [...] Meanwhile Steam doubled the amount of content delivered in 2011 vs.

2010, serving over 780 Petabytes of data to gamers around the world.”75 Concurrent Steam users

peaked at 6.6 million in late January 2013.76 Steam is developed by Valve Corporation, a privately

owned game development and distribution company valued at over $2.5 billion USD.77 Valve's co-

founder and CEO, Gabe Newell, is a Harvard University drop-out and former Microsoft employee,

now a billionaire ranking as the 1268th richest person on the planet due to revenue from his company,

in which he owns more than 50% of shares.78 Mr. Newell's stance on piracy reveals an acute

understanding of the IT era which has undoubtedly been a major factor in his company's international

success:

Newell: One thing that we have learned is that piracy is not a pricing issue. It’s a service issue. The easiest way to stop piracy is not by putting antipiracy technology to work. It’s by giving those people a service that’s better than what they’re receiving from the pirates. For example, Russia. You say, oh, we’re going to enter Russia, people say, you’re doomed, they’ll pirate everything in Russia. Russia now outside of Germany is our largest continental European market.

Ed Fries: That’s incredible. That’s in dollars?

Newell: That’s in dollars, yes. Whenever I talk about how much money we make it’s always dollar-denominated. All of our products are sold in local currency. But the point was, the people who are telling you that Russians pirate everything are the people who wait six months to localize their product into Russia. … So that, as far as we’re concerned, is asked and answered. It doesn’t take much in terms of providing a better service to make pirates a non-issue.79 [my emphasis]

Steam also has a built-in system to see if there is interest for new, independent games before it

chooses whether or not to distributes them, called Steam Greenlight, that enlists the community

in helping select games in development for distribution.80 Why does this simple approach work

for Steam in the game industry, without any need for anti-piracy crusades? One element of

75 Kartik Mudgal, ”Valve releases PR; Steam userbase doubles in 2011,” Gaming Bolt, 6 Jan 2012, http://gamingbolt.com/valve-releases-pr-steam-userbase-doubles-in-2011-big-picture-mode-coming-soon [checked 2 May 2013].

76 Phil Savage, ”Steam concurrent users growing 300% faster than start of 2012,” PC Gamer, 29 Jan 2013, http://www.pcgamer.com/2013/01/29/steam-concurrent-users-growing-300-faster-than-start-of-2012-dota-2-players-rising-steadily/ [checked 2 May 2013].

77 Nick Wingfield, ”Game Maker Without a Rule Book,” The New York Times, 8 Sep 2012, http://www.nytimes.com/2012/09/09/technology/valve-a-video-game-maker-with-few-rules.html?_r=3&pagewanted=all [checked 2 May 2013].

78 Forbes, ”Gabe Newell,” Forbes, Mar 2013, http://www.forbes.com/profile/gabe-newell/ [checked 2 May 2013]. Total equity at $2.5 billion USD estimated in 2012. Compare to Netflix's total equity of $643 million USD at most recent assessment in 2011.

79 Todd Bishop, ”How Valve experiments with the economics of video games,” Geek Wire, 23 Oct 2011, http://www.geekwire.com/2011/experiments-video-game-economics-valves-gabe-newell/ [checked 2 May 2013].

80 See also Good Old Games, Humble Bundle, Kickstarter.27

Steam's success is their robust library of sought after games, something video content services

like Netflix have yet to fully establish. This relates to the (un)willingness of film studios and

programmers to make all of their content available in a third-party owned one-stop shop, opting

instead for their own offshoot services (Warner's Ultraviolet) pertaining exclusively to their own

products. Game producers and rightsholders have clearly been more cooperative in making their

content available on one third-party digital distribution platform. The issue of time delay that

Mr. Newell identifies is also absolutely crucial, as material appears for download on file sharing

sites instantaneously with its official release - sometimes even beforehand.

While I've mentioned the impressive user figures for Netflix, the service is not exactly

exemplary, and its history is checkered with the difficulties of a contingent business model

which leaves it juggling streaming, physical DVDs, and contracts with TV show programmers.

When Netflix raised its monthly rates by 60% in summer 2011, it lost 800,000 subscribers by

the end of the quarter,81 and its market cap plunged from $15 billion to $4 billion in just the

three months following.82 One of the main reasons for this drop-off was that consumers could

not justify paying separately for streaming with such a weak library on offer. While Netflix may

boast of a DVD title collection over 70,000 titles, the number one complaint in a 2012

Consumer Reports survey of over 15,000 respondents was the poor streaming library selection,

“a problem that has hounded Netflix ever since company execs announced their attention to

decouple streaming and DVD subscriptions.”83 Even its seemingly impressive DVD selection

has long been the subject of complaint:

With Netflix, predictably, it's the selection. Who hasn't tried to find something to watch some night, only to spend it scrolling through endless early-2000s movies and obscure documentaries? One respondent noted that the latest movie he could find with George Clooney in it was 10 years old. Even for $8 a month, that's pretty shabby.84

The initially impressive figure of over 70,000 titles in a movie database loses its appeal when

customers still can't access the content they're looking for. Water, water everywhere, but not a

drop to drink. Neflix may beat out Vudu, iTunes, Amazon Instant, Amazon Prime, and Hulu in

81 Rick Aristotle Munarriz, ”Why Does Wall Street Hate Netflix?” Daily Finance, 18 Jan 2012, http://www.dailyfinance.com/2012/01/18/why-does-wall-street-hate-netflix/ [checked 2 May 2013].

82 M.G. Siegler, ”Netflix's market capt has plummeted...” Personal blog of TechCrunch columnist, Oct 2011, http://parislemon.com/post/11912243701/netflixs-market-cap-has-plummeted-from-around-15 figures based on Google Finance. [checked 2 May 2013].

83 Jason Gilbert, ”Netflix Users Hate Netflix (But Cant Stop Using It), Consumer Reports Survey Shows,” Huffington Post, 27 Jul 2012, http://www.huffingtonpost.com/2012/07/27/netflix-users-consumer-reports-survey-_n_1710277.html [checked 2 May 2013].

84 Devin Coldewey, ”Netflix chosen by many, but liked by few, says study,” NBC News, 26 Jul 2012, http://www.nbcnews.com/technology/technolog/netflix-chosen-many-liked-few-says-study-912813 [checked 2 May 2013].

28

number of subscribers, but fall below all of the above in terms of customer satisfaction.85 This is

not to say, however, that the latter services are without their problems, as was summarized in “I

tried to watch Game of Thrones and this is what happened” by popular webcomic The Oatmeal.

The movie distribution market seems considerable hairier and more convoluted than the game

distribution market, where almost every attempt at updating and polishing business models to

match digital era needs seems “plagued by delays and infighting.”86 In 2013 Business Insider

article, writer Josh Luger describes the various ways in which Netflix has been seen and treated

as an industry disruptor, reminiscent of the trickster entrepreneur analogy discussed prior:

Programmers come to the table with lots of original and exclusive high-value content, an otherwise robustly profitable business with many different revenue streams, and a legitimate fear that the rise of Netflix and streaming in general poses an existential threat to their business. Without content, Netflix doesn't have a business. Because exclusive rights to anything - especially popular TV programs - are a huge draw, programmers are increasingly deciding to either not provide them to Netflix(e.g. Showtime), or asking for prices that Netflix won't pay (e.g. Epix). Programmers have similar leverage over consumers as well. Pay-TV is the exclusive home to much of the most valuable video content, including live sports events and HBO. When there’s only one place to get something, people are forced to go to that once place to get it.87

The Examiner reported on the same issue on year prior:

No matter how much Netflix Inc. is willing to pay for the rights, some online video remains off-limits. Major movie studios are refusing to license the rights to most of their latest movies at the same time they’re released on DVDs. Premium cable channels such as HBO and Showtime also are withholding their most popular series, including “Game of Thrones” and “Dexter,” because they are worried about losing subscribers if the content is available on Netflix’s less expensive Internet service.88

“Netflix is in the forefront of the war on piracy,” writes Paul Tassi from Forbes, “and the

studios don’t even seem to understand it. It’s incredible.”89 Tassi brings up a graphic that has

been circulating on the internet for some time under the title “movie Steam” or “How

Hollywood could kill movie piracy (if they wanted to)” [see page 31]. Already from the first

clause we might dismiss this user-creation for its naivete: it is highly unlikely that one platform

85 Jason Gilbert, op. cit., http://www.huffingtonpost.com/2012/07/27/netflix-users-consumer-reports-survey-_n_1710277.html

86 Josh Luger, ” Why The Entire TV Industry Will Be Watching Netflix's 'House Of Cards' Gamble,” Business Insider, 31 Jan 2013, http://www.businessinsider.com/netflix-house-of-cards-gamble-2013-1 [checked 2 May 2013].

87 Ibid88 Acquanetta Ferguson, ”No 'Netflix' streaming of 'Game of Thrones' anytime soon, if ever,” Examiner, 10 Apr 2012, http://www.examiner.com/article/no-netflix-streaming-of-game-of-thrones-anytime-soon-if-ever [checked 3 May 2013].

89 Paul Tassi, op. cit., http://www.forbes.com/sites/insertcoin/2012/02/03/you-will-never-kill-piracy-and-piracy-will-never-kill-you/3/

29

would ever possess the distribution rights to every (popular) movie. The desired breadth and

extent of platforms on which the service would be available, and giving users access to new

movies before they hit the shelves isn't likely to happen, for the reasons Luger listed above.

There are too many contingencies, too many inter-dependencies, too many players on the field,

too many conflicts of interest, too much infighting, too many barriers to a cohesive, digital

distribution platform like Steam for movies. “But with a distribution service like this, at least

they’d be trying. At least they’d be going in the right direction. Trying to pass laws that stifle

the freedom of the internet and piss off the entire population of a country is a terrible, terrible

route to go. The millions of dollars they spent lobbying trying to get bills like SOPA and PIPA

passed could have gone into R&D [research and development] for new distribution arms like

the one [below].”90

90 Ibid30

31

Illustration 5: A user-made infographic solution to movie piracy. Source: Reddit

SOPA / PIPA / ACTA / CISPA / etcetera

Rather than understanding the changes the Internet might permit, and rather than taking time to let “common sense” resolve how best to respond, we are allowing those most threatened by the changes to use their power to change the law—and more importantly, to use their power to change something fundamental about who we have always been.

- Lawrence Lessig, Free Culture 91

The opponents of the American SOPA (Stop Online Piracy Act) bill are famously legion, including

Google, YouTube, Facebook, Twitter, Yahoo!, eBay, Mozilla Corporation, Wikipedia, Wikimedia

Foundation, etc; as well as human rights organizations such as the Electronic Frontier Foundation,

Human Rights Watch, the American Civil Liberties Union, and Reporters Without Borders.92 Harvard

University professor of constitutional law said of SOPA in an open letter entitled “The “Stop Online

Piracy Act” (SOPA) Violates The First Amendment” that “its very existence would dramatically chill

protected speech by undermining the openness and free exchange of information at the heart of the

Internet.”93 James Allworth, a fellow at the Forum for Growth and Innovation at Harvard Business

School, remarked on the proposed bill: “Is this really what we want to do to the internet? Shut it down

every time it doesn't fit someone's business model?

It's happened time and time again: the most famous example is Jack Valenti trying to ban the VCR, claiming it was to the movie industry what the Boston Strangler was to women at home. We know how that one turned out: the VCR lived, and the movie industry went on to generate profits unlike it had seen ever before.

This is history repeating. Except the remedy big content are proposing this time wouldn't just stop VCR technology. It would chill free speech, stop innovation, and pull at the fabric of the internet. In short: they are trying to give America it's very own version of the Great Firewall of China.94

91 Lawrence Lessig, Free Culture, op. cit., 1392 Wikipedia provides an excellent, sourced list of organizations with official stances (for or against) SOPA: http://en.wikipedia.org/wiki/List_of_organizations_with_official_stances_on_the_Stop_Online_Piracy_Act See also videos at: http://www.fightforthefuture.org/pipa and https://www.laquadrature.net/en/video-acta-get-informed-take-action

93 Laurence H. Tribe, ”The 'Stop Online Piracy Act' (SOPA) Violates the First Amendment,” Tribe Legis Memo on SOPA, 6 Dec 2011, http://www.scribd.com/doc/75153093/Tribe-Legis-Memo-on-SOPA-12-6-11-1 [checked 3 May 2013].

94 James Allworth, ”The Great Firewall of America,” Harvard Business Review, 28 Oct 2011, http://blogs.hbr.org/cs/2011/10/e-parasite_threatens_internet.html [checked 3 May 2013].A transcription of Valenti's 1982 testimony before American Congress, in which he stated ”I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone,” can be found here: http://cryptome.org/hrcw-hear.htm

32

PIPA (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act)

received the same outrageously negative reception. Internet engineers Paul Vixie, Steve Crocker,

David Dagon, Dan Kaminsky, and Danny McPherson released a whitepaper in 2011 outlining how

PIPA's proposed DNS (domain name system) filters would be easily circumvented while putting users

at increased cybersecurity risk, cause ISPs to lose visibility into network security threats, result in

degraded performance for content distribution networks, and how interdependencies in DNS structure

would lead to collateral damage (“filtering one domain name or hostname can pull down unrelated

sites down across the globe”).95

American democratic Congresswoman Zoe Lofgren from California, long familiar with tech issues,

told CNET that SOPA “would mean the end of the Internet as we know it.”96 The Electronic Frontier

Foundation, a non-profit digital rights organization and staunch opponent of SOPA, PIPA, ACTA, and

CISPA, termed the bill “disastrous.”97 In 2011, a staggering 41 human rights organizations from across

the globe, as well as 110 prominent law professors expressed serious concerns about SOPA and its

ramifications for censorship of information, free speech, and internet infrastructure stability, with the

law professors stating the bill “may represent the biggest threat to the Internet in its history.”98 These

words might at first glance come across as overly dramatic or sensationalistic. A former Wallstreet

journalist at PC Magazine detailed the top five objections to SOPA and PIPA, which can serve to

explicate why the backlash has been so severe. One of the primary causes for concern (and the reason

why so many corporate IT giants opposed the bills) was that the bills' vague language and definitions

(“foreign infringement sites,” “rogue sites”) and broad immunity could very well be used to shut down

legitimate sites and business: a culling, market-cleaning tactic could thus be employed onto new or

competing businesses and corporate rivals.99 First Amendment lawyer Marvin Ammori adds, “social

media sites like Facebook or YouTube—basically any site with user generated content—would have to

police their own sites, forcing huge liability costs onto countless Internet companies.” As non-profit

95 Steve Crocker et al, ”Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill,” Whitepaper released May 2011, http://news.dot-nxt.com/sites/news.dot-nxt.com/files/PROTECT-IP-Technical-Whitepaper-Final.pdf, pg 13 [checked 3 May 2013].

96 Declan McCullagh, ”Rep. Lofgren: Copyright bill is the 'end of the Internet,' ” Cnet, 27 Oct 2011, http://news.cnet.com/8301-31921_3-20126590-281/rep-lofgren-copyright-bill-is-the-end-of-the-internet/ [checked 3 May 2013].

97 Corynne McSherry, ”Disastrous IP Legislation Is Back – And It’s Worse than Ever,” Electronic Frontier Foundation website, entry posted 26 Oct 2011, https://www.eff.org/deeplinks/2011/10/disastrous-ip-legislation-back-%E2%80%93-and-it%E2%80%99s-worse-ever [checked 3 May 2013].

98 Letter from the international civil and human rights community to Congress: https://www.cdt.org/files/pdfs/SOPA-letter-from-Intl-human-rights-community.pdfProfessors' letter in opposition to PIPA and SOPA to the House of Representatives: https://www.cdt.org/files/pdfs/SOPA_House_letter_with_PROTECT_IP_letter_FINAL.pdf

99 Chloe Albanesius, ”Top 5 Objections to SOPA, PIPA,” PC Mag, 18 Jan 2012, http://www.pcmag.com/article2/0,2817,2399008,00.asp [checked 3 May 2013].

33

digital rights advocacy group Fight for the Future explain in their video on PIPA and SOPA, “lots of

trailblazing websites could look like piracy havens to the wrong judge: Tumblr, Soundcloud, an early

YouTube, wherever people express themselves, make art, broadcast news, or organize protests, there's

plenty of T.V. footage, movie clips, and copyrighted music mixed in.”100 The Electronic Frontier

Foundation write, regarding SOPA and PIPA:

Although the bills are ostensibly aimed at reaching foreign websites dedicated to providing illegal content, their provisions would allow for removal of enormous amounts of non-infringing content including political and other speech from the Web.

The various bills define different techniques for blocking “blacklisted” sites. [...] SOPA would also allow rightsholders to force payment processors to cut off payments and advertising networks to cut ties with a site simply by sending a notice.

These bills are targeted at "rogue" websites that allow indiscriminate piracy, but use vague definitions that could include hosting websites such as Dropbox, MediaFire, and Rapidshare; sites that discuss piracy such as pirate-party.us, p2pnet, Torrent Freak, torproject.org, and ZeroPaid; as well as a broad range of sites for user-generated content, such as SoundCloud, Etsy, and Deviant Art. Had these bills been passed five or ten years ago, even YouTube might not exist today — in other words, the collateral damage from this legislation would be enormous.101

204 entrepreneurs signed a letter to Congress outlining their concerns that SOPA/PIPA would create

significant burdens for smaller tech companies;102 and 55 venture capitalists likewise wrote Congress

concerning PIPA, stating that while “we agree with the goal of fostering a thriving digital content

market online, [...] the current bill will not only fail to achieve that goal, it will stifle investment in

Internet services, throttle innovation, and hurt American competitiveness.”103

To illustrate, supporters of SOPA include the MPAA, the RIAA, Time Warner, Viacom, News

Corporation, Disney, Universal Music, Comcast/NBCUniversal, pharmaceuticals makers, and the U.S

Chamber of Commerce. Venture capitalist Fred Wilson of Union Square Ventures explains the divide:

These bills were written by the content industry without any input from the technology industry. And they are trying to fast track them through Congress and into law without any negotiation with the technology industry. The tech industry, led by startups, have created all the net new jobs in the past five years. Companies like Apple, Google, Facebook, and startups like Dropbox, Kickstarter, and Twilio [all opponents of the bills]

100 PROTECT IP / SOPA Breaks the Internet, Video by Fight for the Future, 2011, viewable at: http://www.fightforthefuture.org/pipa [checked 3 May 2013].

101 Electronic Frontier Foundation, ”SOPA/PIPA: Internet Blacklist Legislation,” Electronic Frontier Foundation website, https://www.eff.org/issues/coica-internet-censorship-and-copyright-bill [checked 3 May 2013].

102 Letter from 204 entrepreneurs to Congress: http://www.quora.com/Simon-Olson/Posts/Reject-SOPA-and-PIPA-Engine-Advocacy-Giving- entrepreneurs-a-voice-in-government [checked 3 May 2013].

103 Letter from 50+ venture capitalists to Congress: http://act.demandprogress.org/act/protect_ip_vc/ 34

are the leading exporters and job creators of this time. They are the golden goose of the economy and we cannot kill the golden goose to protect industries in decline.104

Last year on January 18th 2012, in an event hopefully all of us recall, the largest online protest in

history took place as the internet went black to protest the proposed SOPA and PIPA bills. More than

115 000 sites participated in the strike, resulting in over one billion people blocked from websites.

Over 10 million petition signatures against SOPA/PIPA were signed via five watchdog/advocacy

groups: Free Press, Don't Censor the Net, Avaaz, Credo Action, and MoveOn; over 8 million phone

calls to members of Congress were attempted via Wikipedia's call look up tool; and over 4 million

emails were sent through the EFF, Fight for the Future, and Demand Progress. Twelve hours into the

strike, between 8:00 and 20:00 on January 18th, the number of American senators publicly opposing

PIPA grew from six to thirty-six.105 Two days later, the American senate delayed voting on SOPA and

PIPA in light of the widespread international protests.106 The bills are still on the shelf.

It is important to note that the overwhelming majority of the opponents of these bills were not

advocating piracy or file sharing. Google's mantra during the protests, “Stop Piracy, Not Freedom”

was indicative of the general attitude: the purported intentions of the acts were not reflective of their

actual content, content that opened for a wide array of potential corporate abuse. Most letters to

Congress and open letters of objection from legal and IT experts began and ended by acknowledging

the aims of the bills to crack down on piracy as a legitimate goal, but were adamant that these bills

overshot the goal by so much they threatened the internet, the IT market, and free speech. This is a

crucial element, because the copyright and entertainment industry's lobbying attempts have fallen so

grossly out of favour not only with proponents of file sharing but with its outspoken opponents, as

well.

ACTA (Anti-Counterfeiting Trade Agreement), drafted in 2010, was somewhat of an international

forerunner for SOPA and PIPA. Intending to target “illegal commerce in copyrighted and trademarked

goods,”107 the trade agreement drew intense international opposition once its existence became known

publicly as late as 2012. One of the primary critiques towards ACTA was that the “intense but

104 BBC News, ”Google, Facebook warns against new US piracy legislation,” BBC News, 16 Nov 2011, http://www.bbc.co.uk/news/technology-15757282 [checked 3 May 2013].

105 Fight for the Future, ”The January 18 Blackout / Strike,” Fight for the Future website, 2011, http://sopastrike.com/numbers/ [checked 3 May 2013].

106 BBC News, ”Sopa and Pipa bills postponed in US Congress,” BBC News, 20 Jan 2012, http://www.bbc.co.uk/news/world-us-canada-16655272 [checked 3 May 2013].

107 David Jolly, ”A New Question of Internet Freedom,” The New York Times, 5 Feb 2012, http://www.nytimes.com/2012/02/06/technology/06iht-acta06.html [checked 3 May 2013].

35

needless secrecy” under which it was drafted, “behind closed doors.”108 Internet advocacy group

European Digital Rights (EDRi), of which the EFF is also a member, summarized ACTA's

implications, including creating privatized enforcement outside the rule of law and suspicionless

mass-surveillance in violation of the EU Charter of Fundamental Rights.109 ACTA would push internet

providers (ISPs) to police their own customers and disclose their personal information to

rightsholders, an element similar to SOPA's clauses that would hold website owners such as Facebook

and Twitter responsible for any discussion of or links to potentially infringing material posted by their

customers. Just as with SOPA/PIPA, the vague wording of ACTA and its stifling implications for new

business start-ups and technological innovation were key critiques of the proposed trade agreement.

Doctors Without Borders has been in staunch opposition to ACTA, stating the treaty would essentially

criminalize generic medicine and force third parties such as public health authorities to police

counterfeiting at the risk of severe penalties; and describing ACTA as “a cynical exploitation of

concerns around unsafe medicines and not a legitimate response to the problem of falsified

medicines.”110 Director general Michael Gylling Nielsen from Doctors Without Borders' office in

Denmark described ACTA's potential consequences as resulting in hundreds of thousands of

HIV/AIDS patients not receiving the medication they need to survive.111 On January 26 2012, the

European Parliament's rapporteur for ACTA, Kader Arif, resigned his position in protest, denouncing

the treaty as “a masquerade” and condemning the entire process of its negotiations for lack of

transparency, complete lack of consultation of civil society, and rejection of Parliament's

recommendations.112

ACTA also roused an extensive grassroots opposition movement: a petition at Avaaz to vote down the

treaty was signed by 2.8 million people between January and July 2012, making it the largest ever

online campaign aimed at the European Parliament, prompting a response from President of the

Parliament Martin Schulz, who said he was “very impressed” with the petition numbers.113 The

petition went under the name “ACTA: The new threat to the net.” Protestors also rallied across the

108 Letter from 75+ Law Professors to President Barack Obama: http://www.wcl.american.edu/pijip/go/blo g - post/academic-sign-on-letter-to-obama-on-acta [checked 4 May 2013].

109 European Digital Rights, ”ACTA and its impact on fundamental rights,” European Digital Rights website, 16 Jan 2012, http://www.edri.org/files/EDRI_acta_series_1_20120116.pdf [checked 4 May 2013].

110 Médecins Sans Frontières, ”A Blank Cheque for Abuse: The Anti-Counterfeiting Trade Agreement (ACTA) and its Impact on Access to Medicines,” Médecins Sans Frontières, Feb 2012, http://www.msfaccess.org/sites/default/files/MSF_assets/Access/Docs/Access_Briefing_ACTABlankCheque_ENG_2012.pdf [checked 4 May 2013].

111 Dagens Nyheter, ”Actaavtalet 'dödar' i tredje världen,” Dagens Nyheter, 11 Feb 2012, http://www.dn.se/ekonomi/actaavtalet-dodar-i-tredje-varlden [checked 4 May 2013].

112 Dave Lee, ”European Parliament rapporteur quits in Acta protest,” BBC News, 27 Jan 2012, http://www.bbc.co.uk/news/technology-16757142 [checked 4 May 2013].

36

EU: in Poland, 15 000 protestors demonstrated against ACTA in Kraków, 5000 in Wrocław, and

hundreds in other cities across the country,114 causing Polish Prime Minister Donald Tusk to change

his stance on the agreement and reject it, stating during a news conference one month following the

protests that he “was wrong” to initially support ACTA.115 In Germany, police reported that 16 000

people in München demonstrated against ACTA in February 2012, with the Digital Rights Center in

Europe putting the nation-wide figure at 100 000 protestors.116 To date, only Japan has ratified ACTA

to date, with the agreement requiring six states to ratify it before it can go into effect. In the summer of

2012, the European Parliament rejected ACTA with a crushing 92% majority: 478 against, 39 in

favour, and 165 abstaining. 117 ACTA's supporters in the States include the MPAA, the RIAA, and

Pharmaceutical Research and Manufacturers of America.

SOPA/PIPA themselves were re-works of the earlier COICA bill (“Combating Online Infringements

and Counterfeits Act”) that the American senate had previously rejected.118 It takes no stretch of the

imagination to conclude that CISPA, “The Cyber Intelligence Sharing and Protection Act,” is the latest

in the long string of these ongoing attempts at sweeping legislation characterized by vague language

and broad legal immunity, opening for corporate abuse and the stifling of competition, innovation,

freedom of information. With CISPA in particular, intrusions into civil privacy are of primary concern.

Similar to ACTA, CISPA would permit companies to release personal information about their

customers (including emails and text messages) to not only the US government but to any third parties

so long as the reason for the handover can be tagged as handling “cybersecurity risk.” CISPA would

override all previous privacy laws thanks to its key provisions being stated as effective

113 Avaaz, ”ACTA: The new threat to the net,” Avaaz website, petition updated 7 Jul 2012, https://secure.avaaz.org/en/eu_save_the_internet/ [checked 4 May 2013].

114 The Associated Press, ”Protesters rally across Poland to express anger at international copyright treaty,” The Hamilton Spectator, 25 Jan 2012, http://www.thespec.com/news/world/article/660754--protesters-rally-across-poland-to-express-anger-at-international-copyright-treaty [checked 4 May 2013].

115 Raphael Satter and Vanessa Gera, ”US sites hacked as objections grow to piracy deal,” NBC News, 17 Feb 2012, http://www.nbcnews.com/id/46427642/ns/technology_and_science-security [checked 4 May 2013].

116 European Digital Rights, ”European Anti-ACTA protests of 11 February,” European Digital Rights website, entry published 15 Feb 2012, http://www.edri.org/edrigram/number10.3/anti-acta-demonistrations-11-feb [checked 4 May 2013].

117 European Parliament News, ”European Parliament rejects ACTA,” European Parliament website, 4 Jul 2012, http://www.europarl.europa.eu/news/en/pressroom/content/20120703IPR48247/html/European-Parliament-rejects-ACTA [checked 4 May 2013].Carolina Rossini, Maira Sutton, Gwen Hinze, ”Anti-Counterfeiting Trade Agreement,” Electronic Frontier Foundation website, https://www.eff.org/issues/acta [checked 4 May 2013].

118 Electronic Frontier Foundation, op. cit., https://www.eff.org/issues/coica-internet-censorship-and-copyright-bill

37

“notwithstanding any other law.”119 First introduced 2011, CISPA was re-introduced February 2013,

despite a veto-threat in 2012 by President Barack Obama over concerns of the law repealing important

civil liberty safeguards. Unlike with SOPA and PIPA, however, CISPA was actually backed by

Facebook, AT&T, Intel, Verizon, and Microsoft in 2012. Still, opposition remains strong, with

Mozilla, Reporters Without Borders, the American Civil Liberties Union, the EFF, etc protesting.

Some 30 000 sites including Reddit and Craigslist oppose the law; and over a million signatures

against CISPA have been collected by Avaaz, the EFF, ACLU, and Free Press.120

When watchdog groups that petition governments and lawmakers to action about their

mismanagement of horrific crimes and human and environmental rights violations are also holding

successful campaigns boasting millions of signatures against the entertainment industry's anti-piracy

proposals, something has gone seriously wrong with their lobbying, policies and the corporate image

being portrayed.

119 Mark M. Jaycoz and Kurt Opsahl, ”CISPA is Back: FAQ on What it is and Why it's Still Dangerous,” Eletronic Frontier Foundation website, entry published 25 Feb 2013, https://www.eff.org/cybersecurity-bill-faq#cispa [checked 4 May 2013].

120 Alex Fitzpatrick, ”Internet Activists Deliver 300,000 Anti-CISPA Signatures to Congress,” Mashable, 15 Feb 2013, http://mashable.com/2013/02/15/cispa-petitions/ [checked 4 May 2013].

38

Image ProblemsAfter SOPA and PIPA, Hollywood now looks like a dinosaur, and as out of touch as someone trying to kill the radio or home video cassettes. [...] I believe in paying money for products that earn it. I do not believe in a pricing and distribution model that still thinks it's 1998. And I really don’t believe in censoring the internet so that studio and label executives can add a few more millions onto their already enormous money pile. Treat your customers with respect, and they’ll do the same to you. And that is how you fight piracy.

- Paul Tassi, “You Will Never Kill Piracy, and Piracy Will Never Kill You”121

The ”war on piracy” can be examined as an example of one of the most abysmal public relations and

corporate image failures in the digital era. The MPAA's “Piracy, It's a Crime” anti-piracy PSA

campaign have been an internet laughing stock122 since their airing in 2005: the spoofs are numerous

and sometimes quite high-profile. Futurama's third film, Bender's Game by The Simpsons creator

Matt Groening contained one such spoof where the show's rough-talking, kleptomaniac robot Bender

back-talks the It Came From Outer Space-style PSA narrator. The spoof ends on the message:

“Downloading Often Is Terrible,” which creates the acronym: D.O. I.T.123 British sitcom The I.T.

Crowd also made a well-known spoof of the MPAA's PSA, which, like Futurama's, focuses on the

industry's over-dramatization of the issue. Where the 1960's-style narrator in Futurama's spoof shouts

“then don't download movies illegally! It's exactly like ripping out a human heart!” the I.T. Crowd's bit

reproaches:

You wouldn't steal a handbag. You wouldn't steal a car. You wouldn't steal a baby. You wouldn't shoot a policeman, and then steal his helmet. You wouldn't go to the toilet in

121 Paul Tassi, op. cit., http://www.forbes.com/sites/insertcoin/2012/02/03/you-will-never-kill-piracy-and-piracy-will-never-kill-you/3/Tassi is refering, of course, to Jack Valenti's infamous speeches to American Congress when the MPAA attempted to ban the VCR, and to FM radio inventor Edwin Armstrong's suicide following years of patent litigation wars with the RCA. Note the similarities with Aaaron Swartz's recent suicide following legal prosecution regarding his file sharing of JSTOR academic articles.

122 Know Your Meme, ”Piracy, It's a Crime,” Know Your Meme, entry updated Jan 2013, http://knowyourmeme.com/memes/piracy-its-a-crime [checked 4 May 2013].

123 The impetus behind this 2008 spoof was in my understanding related to Fox's cancellation of Futurama in 2003, despite the show's popular and critical acclaim, having by that time won an Emmy for Best Animation and presenting a petition of over 130,000 fan signatures to keep the show running. Groening has long been scathing in his criticism of Fox's behaviour, calling them “bullies and babies” and “out of their minds” on interview in the past; and lampooning the network and their executives on multiple occasions in the show. Futurama was kept alive through fan interest and re-runs on Comedy Central between 2003 and 2007, as well as four direct-to-DVD films for the following two years. Access to the latter invariably involved file sharing, which I believe to be part of the impetus for the spoof: a little wink to the fans. In 2010, Comedy Central picked up the show again for a sixth season, and the seventh aired late 2012/early 2013. Futurama has to-date won six Emmys and numerous other awards.

39

helmet — and then send it to the policeman's grieving widow — and then steal it again! Downloading films is stealing. If you do it, you will face the consequences!

at which point an FBI agent shoots a young girl in the back of the head for illegally downloading a

movie.124

Pages like “The 14 Most Ridiculous Lawsuits Filed by the RIAA and the MPAA” catalogue the

heights of copyright protection absurdity that these PSA spoofs emphasize: in 2005, grandfather Fred

Lawrence was faced with $600,000 USD in damages for his grandson downloading four movies, only

one of which they didn't already own. In 2004, 42 year old, severely disabled single mother Tanya

Andersen was sued and harassed by the RIAA for purportedly downloading one song, and when she

filed a counter-suit, the RIAA went so far as to shake-down her 10 year old daughter by impersonating

the child's grandmother.125 By 2007, there were 20,000 active lawsuits by the RIAA and MPAA against 124 I.T. Crowd Season 2 Episode 3, clip available at: http://www.youtube.com/watch?v=ALZZx1xmAzg 125 Eric Bangeman, ”RIAA throws in the towel in Atlantic v. Andersen,” Ars Technica, 4 Jun 2007, http://arstechnica.com/tech-policy/2007/06/riaa-throws-in-the-towel-in-atlantic-v-andersen/ [checked 4 May 2013].

40

Illustration 6: Composite from the I.T. Crowd's MPAA PSA spoof, season 2 episode 3, clip available here.

Illustration 7: Screengrab from Futurama's "Piracy: It's a Crime" spoof featured on the Bender's Game DVD. Clip available here.

individual file sharers, and in Capitol vs. Thomas, Jammie Thomas, another single mom, was the first

to see court. In September 2012, after several retrials and despite reasonable doubt, Thomas was

charged $222,000 for allegedly file sharing 24 songs five years prior126 – a reduction from the $1.9

million in damages awarded during the second retrial in 2009.127 “The 24 songs at issue in the case can

be downloaded from iTunes for $24, yet she is being ordered to pay almost 10,000 times as much for

sharing them with others.”128 In 2013 the case was appealed yet again, this time to the United States

Supreme Court, where defense maintains that the charges awarded are “so severe and oppressive as to

be wholly disproportioned to the offense and obviously unreasonable.”129 “But the lower courts had

concluded that a $222,000 award for sharing 24 songs was not so disproportionate and unreasonable

as to violate the Constitution. And in the government's view, the Supreme Court should let that

judgement stand.”130

The more outrageous the lawsuits get, the more copyright lobbyists play into the caricatured spoofs of

them. Despite what big content and the copyright industry may think, scare tactics are simply not

working, a sentiment shared by Cybernormer's aforementioned 2009 research paper, which concluded:

“Our study of 15-25 year olds shows that 75 percent do not consider the fact that file sharing of

copyright protected material is illegal, as a reason strong enough to abstain. Almost as many state that

more stringent legislation will not stop them from downloading.”131 The millions of file sharers around

the world are unlikely to be scared out of a social and technological norm by a few grossly

disproportionate verdicts: rather, their disdain for big content and the law may only grow.

But the industry doesn't seem convinced. On January 14th 2013, one of the largest illegal downloading

cases in Canadian history was set to return to court. American film studio Voltage Pictures, a company

that has previous filed expanded suits via the US Copyright Group against 24,583 BitTorrent users for

downloading the film Hurt Locker (breaking their earlier record of a 23,322 IP address shakedown of

The Expendables downloaders), has been targeting Ontario-based ISP Teksavvy to release the personal

information of 1100 Teksavvy customers on suspicions of illegal downloading. A concerned Hurt

126 United States Court of Appeals for the Eight Circuit, No. 11-2820, filed 11 Sep 2012, http://www.ca8.uscourts.gov/opndir/12/09/112820P.pdf [checked 4 May 2013].

127 Mike Harvey, ”Single-mother digital pirate Jammie Thomas-Rasset must pay $80,000 per song,” The Times, 19 Jun 2009, http://www.thetimes.co.uk/tto/technology/article1859577.ece [checked 4 May 2013].

128 Timothy B. Lee, ”Obama administration defends $222,000 file-sharing verdict,” Ars Technica, 12 Feb 2013, http://arstechnica.com/tech-policy/2013/02/obama-administration-defends-222000-file-sharing-verdict/ [checked 4 May 2013].

129 Ibid130 Ibid131 Måns Svensson and Stefan Larsson, op. cit., 59

41

Locker customer wrote an open letter to Voltage Picture's lead production partner, Nicolas Chartier,

regarding the initial Hurt Locker suits that began in 2010, stating:

The majority of the people you are suing were not seeking to make money from their downloads, and will be financially devastated by a lawsuit or settlement. While it is completely understandable that Voltage Pictures wishes to defend its intellectual property, this is an inhumane way of doing so.

Which prompted the following response from the Voltage Pictures founder:

I'm glad you're a moron who believes stealing is right. I hope your family and your kids end up in jail one day for stealing so maybe they can be taught the difference. Until then, keep being stupid, you're doing that very well.132

On January 15th 2013, a judge delayed the case against ISP Teksavvy (who thus far admirably

continue to protect the identities of their allegedly infringing customers) for a public interest

intervention. While Canadian copyright law thankfully sets the cap for copyright infringement

via illegal downloading at a maximum of $5000 CAD per individual, the ISP Teksavvy has

already racked up over $190,000 CAD in legal fees dealing with Voltage Pictures.133

An Ongoing History of Bad Blood, Scandals, and Persecution

The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

– Lawrence Lessig, Prosecutor as Bully

This sort of litigious head-hunting and doomsday view of new technologies is nothing new for big

content, whose approaches still does not seem to have diverged sufficiently from out beneath the

shadow of the MPAA's long-time president Jack Valenti. Valenti gained notoriety for his attempts at 132 Mike Masnick, ”Hurt Locker Producer Says That Criticizing His Plan To Sue Fans Means You're A Moron And A Thief,” Tech Dirt, 19 May 2010, http://www.techdirt.com/articles/20100518/2341519482.shtml [checked 4 May 2013]. Chartier was also banned from the Oscars in 2010 for ”creating a negative impression of a rival nominee.”

133 Andy Maxwell, ”Judge Delays Teksavvy Copyright Trolls For Public Interest Intervention,” Torrent Freak, 15 Jan 2013, http://torrentfreak.com/judge-delays-teksavvy-copyright-trolls-for-public-interest-intervention-130115/ [checked 4 May 2013].

42

banning the VCR, which he in his dramatic speeches to American Congress claimed would destroy the

American film industry. To Valenti, VCRs were “tapeworms, eating away at the very heart and

essence of the most precious asset the copyright owner has, his copyright.”134 In 1982 he stood before

American Congress and told them the VCR was “the Boston Strangler of the American film

industry.”135 After eight years of legal battles, in 1981, the Ninth Circuit Court of Appeals did indeed

rule the VCR as an illegal technology, essentially outlawing it, and framing Sony Corporation as a

contributory copyright infringer. The decision was reversed two years later by the Supreme Court,

though only by a single vote.136

Media technologies have both since and prior had a history of coming under fire for copyright

infringement: broadcast radio, cable television, digital audio tapes, MP3 players, and so on. But

Lessig states that in all of the cases prior to the file sharing era, American courts and Congress

actually recognized some of the legitimacy of the “pirates,” and did not attempt to eliminate all free-

riding. File sharing technology, suggests Lessig, is being hounded by big content and copyright

industries with uncharacteristic aggression and disproportionality, even considering their history. In

2001, when “Napster told the district court that it had developed a technology to block the transfer of

99.4% of identified infringing material, the district court told counsel for Napster 99.4% was not good

enough. Napster had to push the infringements down to zero. If 99.4% is not good enough, then this is

a war on file sharing technologies, not a war on copyright infringement.”137

It isn't difficult to understand Lessig's conclusion. Famous internet entrepreneur and former hacker

Kim Dotcom, founder of the popular cyberlocker site MegaUpload, was in January 2012 seized for

copyright infringement in an FBI-advised, two helicopter dawn raid on his New Zealand mansion by a

squad of 76 police officers armed with Bushmaster M4 rifles, Glock pistols, sledgehammers, and

saws.

Later that day, Dotcom stood in an Auckland courtroom, facing 20 or more years in prison on charges of copyright infringement, conspiracy, racketeering, and money laundering for running a business that allegedly grossed $175 million over seven years from stolen digital content. His New Zealand lawyer said he was innocent and that Megaupload was no different than YouTube. [...] Until authorities shut it down in January, Megaupload was ranked among the 100 most popular websites in the world by Alexa Internet, a Web-traffic analysis service. Megaupload says it had 150 million registered users and averaged 50 million daily visitors. Dotcom and his lawyers describe the

134 Lawrence Lessig, Free Culture, op. cit., 76135 Ibid136 Home Recording Rights Coalition, ”Inside Betamax,” HRRC website, entry copyrighted 2006, http://www.hrrc.org/index.php?id=280&subid=49 [checked 4 May 2013].

137 Lawrence Lessig, Free Culture, op. cit., 7443

company as a cloud-storage site, or “cyberlocker,” used to store music, video, photo, and data files too big for e-mail.138

One year prior to the raid, A-list music stars and Hollywood celebrities including P Diddy,

Alicia Keys, Snoop Dogg, Mary J. Blige, Jamie Foxx, and Kanye West endorsed MegaUpload

in a 4-minute track praising the site. It was promptly removed from YouTube by Universal

Music under false claims of copyright infringement. MegaUpload, which owns all rights to the

song, filed a countersuit to YouTube, and the video was eventually reinstated on Kim Dotcom's

channel.139 Dotcom has been battling extradition in the MegaUpload legal case for the past year,

and in March 2013 recently won the right to sue the New Zealand Government Communications

Security Bureau and New Zealand Police for illegal spying on behalf of the FBI.140 On

interview, he informs listeners that a large number of Mega accounts belong to US Government

officials, including the Department of Justice and the US Senate, and that he hopes to soon be

given permission to resume their service.141 “Mr. Dotcom likened the government’s over-zealous

actions against him to that of now-deceased Internet activist Aaron Swartz [...] and to Wikileaks’

Julian Assange, now holed up in Ecuador.”142

Twenty-six year old computer programmer, writer, and internet activist Aaron Swartz hung

himself in January 2013 while facing a million USD trial after deals with federal prosecutors fell

apart, in one of the most egregious recent examples of prosecutorial overreach and overzealous

punitive measures against file sharers. Swartz, whose long list of merits include co-developing

the widely used RSS web feed protocol at the age of 14; co-founding one of the world's most

highly trafficked news sites, the user-generated Reddit at 19; and founding the aforementioned

internet activist organization Demand Progress; was faced with at least 35 years in prison and

one million USD in fines for “the crime of — and I’m not exaggerating here — downloading too

many free articles from the online database of scholarly work JSTOR.

138 Bryan Gruley, David Fickling, and Cornelius Rahn, op. cit., http://www.businessweek.com/articles/2012-02-15/kim-dotcom-pirate-king

139 Andy Maxwell, ” Megaupload to Universal: You’ve Got Some Explaining To Do,” Torrent Freak, 28 Dec 2011, http://torrentfreak.com/megaupload-to-universal-youve-got-some-explaining-to-do-111228/ [checked 4 May 2013]. The video may be viewed here.“The fact that this expression could be silenced by a major label — without any apparent infringement — should be seriously troubling to anyone who cares about artists’ speech rights,” says Casey Rae-Hunter, Deputy Director, Future of Music Coalition. “If this can happen to Snoop Dogg and others, it can happen to anyone.”

140 Kurt Bayer, ”Dotcom wins right to sue,” The New Zealand Herald, 7 Mar 2013, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10869764 [checked 4 May 2013].

141 Russia Today, op. cit., http://rt.com/usa/dotcom-us-megaupload-american-491/142 Peter Himler, ”Kim Dotcom Reaps Mega PR,” Forbes, 20 Jan 2013, http://www.forbes.com/sites/peterhimler/2013/01/20/mega-pr/ [checked 4 May 2013].

44

Aaron had allegedly used a simple computer script to use MIT’s network to massively download academic articles from the database that he himself had legitimate access to, almost 5 million in all, with the intent, prosecutors alleged, of making them freely available. You should know that despite JSTOR declining to press charges or pursue prosecution, federal prosecutors dropped a staggering 13 count felony indictment on Aaron for his alleged actions.143

Journalists and legal experts have pointed to the law under which Swartz was prosecuted, the 1986

Computer Fraud and Abuse Act, for its problematically broad language, which is, as we have seen, a

common theme with digital copyright and file sharing legislation. Following Swart'z suicide,

aforementioned representative Zoe Lofgren proposed an amendment to the act entitled Aaaron's

Law.144

By comparison, The Pirate Bay founders' one year prison sentences each and total of $3.5 million

USD in damages may seem almost small (although pre-trial charges were, as usual, higher). But the

similarities in draconian penalization are unmistakable: for example, following his extradition from

Cambodia (despite the lack of an extradition treaty between Sweden and Cambodia), TPB co-founder

Gottfrid Svartholm Warg spent almost half a year in solitary confinement for 23 hours a day, meaning

no social contact other than visitation rights permitting only his mother, no internet, no TV, access

only to one newspaper, and one hour a day outdoor exercise in a yard with high concrete walls.145

Swedish police interpreted the influx of letters of love and support he received from youth around the

world as “a large international network of people that support his criminal activities.”146

These aren't merely a few extreme cases. They are however among the most recent, most high-profile

cases, and as such form part of an underlying pattern of bad policy built on heavy-handed lawsuits,

prosecutorial overreach, disproportional legal claims, and overly harsh punishments; with seemingly

utter disregard for what kind of light these actions cast big content in, in the eyes of the general public.

These kinds of cases are rather numerous and I am naturally restricted by page limit from discussing

them all, but most recently include Finnish police raiding a private home and confiscating a 9-year old

girl's Winnie The Pooh laptop at the behest of the Finnish Copyright Information and Anti-Piracy

143 Chris Hayes, ”The brilliant mind, righteous heart of Aaron Swartz will be missed,” MSN BC, 13 Jan 2013, http://tv.msnbc.com/2013/01/13/the-brilliant-mind-righteous-heart-of-aaron-swartz-will-be-missed/ [checked 4 May 2013].

144 Lofgren's most recent revision of the proposal at the time of writing may be found here.145 Andy Maxwell, ”Pirate Bay Founder Held In Solitary Confinement,” Torrent Freak, 20 Oct 2012, http://torrentfreak.com/pirate-bay-founder-held-in-solitary-confinement-write-him-a-letter-today-121020/ [checked 5 May 2013].

146 Andy Maxwell, ”Pirate Bay’s Gottfrid Sends His Warmest Thanks to all Supporters,” Torrent Freak, 2 Feb 2013, http://torrentfreak.com/pirate-bays-gottfrid-sends-his-warmest-thanks-to-all-supporters-130202/ [checked 5 May 2013].

45

Centre because the child illegally downloaded the latest album of national pop-star Chisu;147 and,

during the same month in November 2012, the reinstatement of a Texas judge who had eight years

prior been caught on tape beating his Cerebral Palsy-suffering daughter as punishment for her using

Kazaa to obtain music.148 In December 2012, 24-year old UK student Richard O'Dwyer finally won

his extradition battle after agreeing to pay £20,000 in damages for running TVShack, a website where

users submitted links to sites where one could watch TV-shows.149 If extradited, O'Dwyer would have

faced charges of up to 10 years in prison in the United States. Even more recently, The Pirate Bay

(still sailing) filed a law suit against the Finnish IFPI and affiliated CIAPC for stealing their website

design. When some users expressed confusion as to the motives of the suit, The Pirate Bay explicated

on their official Facebook page: “Oh for the gods sake, can't some of you understand irony? We're

suing the finnish IFPI because it's fun. Not because we're butt hurt that they "stole" our code. TPB -

Only in it for the lulz since 2003.”150

While entrepreneurs like the TPB founders and Kim Dotcom benefit from their ride-the-line,

“badboy” public image that resonates with youth, the primary adopters of new technology, big content

comes in as the Goliath to their David, the Prince John to their Robin Hood. While big content puffs

and stamps its feet in indignation, internet hacktivist groups take on Guy Fawkes' masks popularized

by the former's very own blockbuster hit, V for Vendetta (James McTeigue, 2005). In some sort of

bizarre strange-bedfellows spiral, Disney's Pirates of the Caribbean movies undoubtedly profited on

the media frenzy regarding the ongoing Pirate Bay trials at the time. It's as though big content is

simultaneously aware that the bad-boy vigilante who rides the line in a fight against a draconian,

restrictive authority is a popular archetype among youth, especially among the “screwed

generation;”151 but yet unaware of how this image translates into situations where multinational media

conglomerates are lobbying governments for internet restrictions, and suing single moms, students,

and famous internet whizzkids for millions.

147 Andy Maxwell, ”Police Raid 9-Year-Old Pirate Bay Girl, Confiscate Winnie The Pooh Laptop,” Torrent Freak, 22 Nov 2012, http://torrentfreak.com/police-raid-9-year-old-pirate-bay-girl-confiscate-winnie-the-pooh-laptop-121122/ [checked 5 May 2013].In response to the case, file sharers anonymously gifted the girl a new MacBook Pro.

148 Ben Jones, ”Texas Child-Beating P2P-Hating Judge Reinstated,” Torrent Freak, 9 Nov 2012, http://torrentfreak.com/texas-child-beating-p2p-hating-judge-reinstated-121109/ [checked 5 May 2013].

149 Andy Maxwell, ”Richard O’Dwyer Piracy Extradition Battle Ended in New York Court,” Torrent Freak, 7 Dec 2012, http://torrentfreak.com/k-court-121207/ [checked 5 May 2013].

150 Posted on TPB's official Facebook page on February 13, 2013.151 Joel Kotkin, ”Are Millennials the Screwed Generation?” The Daily Beast, 16 Jul 2012, http://www.thedailybeast.com/newsweek/2012/07/15/are-millennials-the-screwed-generation.html [checked 5 May 2013].

46

ConclusionsStopping online piracy is like playing the world’s largest game of Whac-A-Mole. Hit one, countless others appear. Quickly. And the mallet is heavy and slow. [...] Sooner or later, the people who still believe they can hit the moles with their slow mallets might realize that their time would be better spent playing an entirely different game.

- Nick Bilton, Internet Pirates Will Always Win

Perhaps it's time for big content to face the bold new world. Some players seem more prepared than

others. In a recent interview with Entertainment Weekly, HBO programming president stated that the

program's Game of Thrones being the most illegally downloaded TV series for 2012 was “a

compliment of sorts. The demand is there. And it certainly didn’t negatively impact the DVD sales.”152

Game of Thrones director David Petrarca had one month prior “said the illegal downloads did not

matter because such shows thrived on "cultural buzz" and capitalised on the social commentary they

generated.”153 While maintaining that he was “100% against illegal downloading,” Petrarca at least

identified it as a problem resulting from lacking legal distribution. However, this April, the United

States ambassador in Australia put out a public plea singling out Australians as “some of the worst

offenders with among the highest piracy rates” and imploring them to stop pirating Game of Thrones,

even trotting out the tired old mantra of “stealing is stealing.”154 The reaction on his Facebook page

currently comprises over 200 comments, most of which explain in detail the lack of HBO distribution

options in Australia. “You are a dinosaur,” writes one user. “Get out of the fast lane.”

Despite the hopes of many users, a “Steam for movies” will likely never happen. Big content seems

too invested in their channel-distribution logic and economic model to adopt a central database

distribution system, no matter how badly customers might want it. As explored in the chapter Missed

Opportunities, the incentive to do so is, from big content's perspective, low, as being the exclusive

provider for sought-after entertainment prevents third-party providers from capitalizing on their

content. To big content, Netflix and the like are often seen as competitors for access to their exclusive

rights, not as allies in improving legal access. Of course, this leads to a lacking distribution system 152 James Hibberd, ”HBO: 'Game of Thrones' piracy is a compliment,” Entertainment Weekly, 31 Mar 2013, http://insidetv.ew.com/2013/03/31/hbo-thrones-piracy/ [checked 5 May 2013].

153 Timothy Geigner, ”Game Of Thrones Director: I'm 100% Opposed To The Piracy I Just Said Helps My Show Survive,” Tech Dirt, 28 Feb 2013, http://www.techdirt.com/articles/20130227/08153622137/game -thrones-director-im-100-opposed-to- piracy-i-just-said-helps-my-show-survive.shtml [checked 5 May 2013].

154 Andy Maxwell, ”US Ambassador Pleads: Stop Pirating Game of Thrones, It's Stealing,” Torrent Freak, 26 Apr 2013, http://torrentfreak.com/us-ambassador-pleads-stop-pirating-game-of-thrones-its-stealing-130426/ [checked 5 May 2013].

47

that prompts illegal downloading, and from the looks of this month's vigorous CISPA lobbying,

litigation and legislature will still continue to be the method of choice for dealing with piracy,

regardless of whether it stems from a service issue.

Can HBO and other content providers open up regional distribution like HBO Nordic for every

country or equally-sized region in the world? How many different subscriptions and $10-a-month fees

will international users have to juggle in order to gain access to content that is packaged and bundled

with internet and hundreds of other channels in the United States, the country of its origin? As internet

speeds in the rest of the world catch up to Sweden's, the Nordic countries may no longer be the

“hotbed” of file sharing sites, and instead media conglomerates will be facing file sharing sites based

in disparate nations, some with less transparent judiciary systems and varying political inclinations. As

an example of this: The Pirate Bay is currently ranked by Alexa as the 76th most trafficked website in

the world. The top regional rankings for the site are as follows: it is the 14th most trafficked website in

Sweden, the 19th most trafficked website in the Philippines as well as in the United Arab Emirates, the

24th most trafficked website in Serbia, and the 26th most trafficked website in Croatia.

Did suing Napster and Kazaa into oblivion end illegal file sharing? No. Instead, file sharing continued

to rise to unprecedented heights and actors like The Pirate Bay and MegaUpload emerged instead. Has

attempting to sue The Pirate Bay into oblivion ended illegal file sharing? No. The site is now even

48

Illustration 8: This logo replaced the one on The Pirate Bay's landing page on Feb 26th 2013. In order to protect the Swedish Pirate Party from legal action threatened by Swedish Rättsalliansen for hosting The Pirate Bay, TPB moved their server hosting from Sweden to Spain and Norway. Swedish Pirate Party leader Anna Troberg had the following to say: “Today, there are more than sixty different Pirate Parties all around the world. Every cut connection to The Pirate Bay will generate two new connections.”

more trafficked than ever.155 It is my opinion that the only thing that can kill file sharing is an even

more efficient, even more user-friendly distribution technology – though this wouldn't necessarily

knock-out unpaid access. But instead of spending millions attempting to destroy this generation's

internet whizz-kids, why don't media conglomerates consider recruiting them for R&D for improving

their own business models and distributional systems? Instead of fighting the inescapable social and

technological realities of the internet and trying to regress to methods from an era of analog

distribution, why not embrace the developments and move forward? Or, should they continue to opt

for exclusive distribution based on a channel system, at least accept unauthorized international

downloads as a result of the lack of access that kind of model brings? To quote The Pirate Bay

founders, “Seriously though, we need better competition. Who's up for it? Who's gonna make that

killer app/protocol/site that turns everything upside down just like Bittorrent did some 10 years ago?

Like Napster did a few years before? We're waiting, we don't wanna do it ourselves (since we're old

and tired).”156

File sharing and digital copyright laws are a gargantuan topic with extensive ramifications into many

industries and facets of our lives. Whatever future developments may come, I feel Tassi's headline

may continue to hold true: you will never kill piracy – and piracy will never kill you.

155 Ernesto Van Der Sar, “The Pirate Bay Becomes #1 File-Sharing Site as Cyberlockers Collapse,” Torrent Freak, 31 Mar 2013, http://torrentfreak.com/the-pirate-bay-becomes-1-file-sharing-site-cyberlockers-collapse-130330/ [checked 5 May 2013].

156 The Pirate Bay, posted on their official Facebook page 31 Mar 2013, https://www.facebook.com/ThePirateBayWarMachine/posts/154771278022246 [checked 5 May 2013].

49

References

Online Articles, Books, and Websites:

Albanesius, Chloe. ”Top 5 Objections to SOPA, PIPA.” PC Mag, 18 Jan 2012, http://www.pcmag.com/article2/0,2817,2399008,00.asp [checked 3 May 2013].

Allworth, James. ”The Great Firewall of America.” Harvard Business Review, 28 Oct 2011, http://blogs.hbr.org/cs/2011/10/e-parasite_threatens_internet.html [checked 3 May 2013].

Anderson, Nate. ”White House-backed antipiracy video is Reefer Madness for the digital age.” Ars Technica, 30 Nov 2011, http://arstechnica.com/tech-policy/2011/11/white-house-backed-antipiracy-video-is-reefer-madness-for-the-digital-age/ [checked 1 May 2013].

Avaaz. ”ACTA: The new threat to the net.” Avaaz website, petition updated 7 Jul 2012, https://secure.avaaz.org/en/eu_save_the_internet/ [checked 4 May 2013].

Bangeman, Eric. ”RIAA throws in the towel in Atlantic v. Andersen.” Ars Technica, 4 Jun 2007, http://arstechnica.com/tech-policy/2007/06/riaa-throws-in-the-towel-in-atlantic-v-andersen/ [checked 4 May 2013].

Bayer, Kurt. ”Dotcom wins right to sue.” The New Zealand Herald, 7 Mar 2013, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10869764 [checked 4 May 2013].

BBC News. ”Downloading 'myths' challenged.” BBC News, 27 Jul 2005, http://news.bbc.co.uk/2/hi/4718249.stm [checked 16 Apr 2013].

BBC News. ”Google, Facebook warns against new US piracy legislation.” BBC News, 16 Nov 2011, http://www.bbc.co.uk/news/technology-15757282 [checked 3 May 2013].

BBC News. ”Sopa and Pipa bills postponed in US Congress.” BBC News, 20 Jan 2012, http://www.bbc.co.uk/news/world-us-canada-16655272 [checked 3 May 2013].

50

Bilton, Nick. ”Internet Pirates Will Always Win.” The New York Times, 4 Aug 2012, http://www.nytimes.com/2012/08/05/sunday-review/internet-pirates-will-always-win.html [checked 5 May 2013].

Bishop, Todd. ”How Valve experiments with the economics of video games.” Geek Wire, 23 Oct 2011, http://www.geekwire.com/2011/experiments-video-game-economics-valves-gabe-newell/ [checked 2 May 2013].

Box Office Mojo. ”Yearly Box Office,” updated 30 Apr 2013, http://www.boxofficemojo.com/yearly/?view2=domestic&view=releasedate&p=.htm [checked 1 May 2013].

Coldewey, Devin. ”Netflix chosen by many, but liked by few, says study.” NBC News, 26 Jul 2012, http://www.nbcnews.com/technology/technolog/netflix-chosen-many-liked-few-says-study-912813 [checked 2 May 2013].

Crocker, Steve et al, ”Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill.” Whitepaper released May 2011, http://news.dot-nxt.com/sites/news.dot-nxt.com/files/PROTECT-IP-Technical-Whitepaper-Final.pdf [checked 3 May 2013].

Dagens Nyheter. ”Actaavtalet 'dödar' i tredje världen.” Dagens Nyheter, 11 Feb 2012, http://www.dn.se/ekonomi/actaavtalet-dodar-i-tredje-varlden [checked 4 May 2013].

Dunning, David. “How Did Streaming Content Create legal Problems?” eHow.com, http://www.ehow.com/info_12184054_did-streaming-content-create-legal-problems.html [checked 1 May 2013].

Electronic Frontier Foundation. ”SOPA/PIPA: Internet Blacklist Legislation.” Electronic Frontier Foundation website, https://www.eff.org/issues/coica-internet-censorship-and-copyright-bill [checked 3 May 2013].

European Digital Rights. ”ACTA and its impact on fundamental rights.” European Digital Rights website, 16 Jan 2012, http://www.edri.org/files/EDRI_acta_series_1_20120116.pdf [checked 4 May 2013].

European Digital Rights. ”European Anti-ACTA protests of 11 February.” European Digital Rights website, entry published 15 Feb 2012, http://www.edri.org/edrigram/number10.3/anti-acta-demonistrations-11-feb [checked 4 May 2013].

European Parliament News. ”European Parliament rejects ACTA.” European Parliament website, 4 51

Jul 2012, http://www.europarl.europa.eu/news/en/pressroom/content/20120703IPR48247/html/European-Parliament-rejects-ACTA [checked 4 May 2013].

Ferguson, Acquanetta. ”No 'Netflix' streaming of 'Game of Thrones' anytime soon, if ever.” Examiner, 10 Apr 2012, http://www.examiner.com/article/no-netflix-streaming-of-game-of-thrones-anytime-soon-if-ever [checked 3 May 2013].

Fight for the Future. ”The January 18 Blackout / Strike.” Fight for the Future website, 2011, http://sopastrike.com/numbers/ [checked 3 May 2013].

Fitzpatrick, Alex. ”Internet Activists Deliver 300,000 Anti-CISPA Signatures to Congress.” Mashable, 15 Feb 2013, http://mashable.com/2013/02/15/cispa-petitions/ [checked 4 May 2013].

Fleischer, Rasmus. ” 'Piratrörelsen' har aldrig funnits.” Copyriot blog, entry published 28 Sept 2012, http://copyriot.se/2010/09/28/piratrorelsen-har-aldrig-funnits/ [checked 1 May 2013].

Forbes. ”Gabe Newell.” Forbes, Mar 2013, http://www.forbes.com/profile/gabe-newell/ [checked 2 May 2013].

Geigner, Timothy. ”Game Of Thrones Director: I'm 100% Opposed To The Piracy I Just Said Helps My Show Survive.” Tech Dirt, 28 Feb 2013, http://www.techdirt.com/articles/20130227/08153622137/game -thrones-director-im-100- opposed-to-piracy-i-just-said-helps-my-show-survive.shtml [checked 5 May 2013].

Gilbert, Jason. ”Netflix Users Hate Netflix (But Cant Stop Using It), Consumer Reports Survey Shows.” Huffington Post, 27 Jul 2012, http://www.huffingtonpost.com/2012/07/27/netflix-users-consumer-reports-survey-_n_1710277.html [checked 2 May 2013].

Grandoni, Dino. ”Netflix 4Q 2012 Earnings Show 2 Million User Surge In Subscriber Base.” Huffington Post, 23 Jan 2013, http://www.huffingtonpost.com/2013/01/23/netflix-4q-2012_n_2536643.html [checked 1 May 2013].

Gruley, Bryan, David Fickling, and Cornelius Rahn. ”Kim Dotcom, Pirate King.” Business Week, 15 Feb 2012, http://www.businessweek.com/articles/2012-02-15/kim-dotcom-pirate-king [checked 4 May 2013].

Hanberg, Martin. ”Fildelarna köper mest.” Svenska Dagbladet, 17 May 2010, http://www.svd.se/naringsliv/digitalt/fildelarna-koper-mest_4730737.svd [checked 1 May 2013].

52

Harvey, Mike. ”Single-mother digital pirate Jammie Thomas-Rasset must pay $80,000 per song.” The Times, 19 Jun 2009, http://www.thetimes.co.uk/tto/technology/article1859577.ece [checked 4 May 2013].

Hayes, Chris. ”The brilliant mind, righteous heart of Aaron Swartz will be missed.” MSN BC, 13 Jan 2013, http://tv.msnbc.com/2013/01/13/the-brilliant-mind-righteous-heart-of-aaron-swartz-will-be-missed/ [checked 4 May 2013].

Hibberd, James. ”HBO: 'Game of Thrones' piracy is a compliment.” Entertainment Weekly, 31 Mar 2013, http://insidetv.ew.com/2013/03/31/hbo-thrones-piracy/ [checked 5 May 2013].

Himler, Peter. ”Kim Dotcom Reaps Mega PR.” Forbes, 20 Jan 2013, http://www.forbes.com/sites/peterhimler/2013/01/20/mega-pr/ [checked 4 May 2013].

Home Recording Rights Coalition. ”Inside Betamax.” HRRC website, entry copyrighted 2006, http://www.hrrc.org/index.php?id=280&subid=49 [checked 4 May 2013].

Jaycoz, Mark M. and Kurt Opsahl. ”CISPA is Back: FAQ on What it is and Why it's Still Dangerous.” Eletronic Frontier Foundation website, entry published 25 Feb 2013, https://www.eff.org/cybersecurity-bill-faq#cispa [checked 4 May 2013].

Jolly, David. ”A New Question of Internet Freedom.” The New York Times, 5 Feb 2012, http://www.nytimes.com/2012/02/06/technology/06iht-acta06.html [checked 3 May 2013].

Jones, Ben. ”Texas Child-Beating P2P-Hating Judge Reinstated.” Torrent Freak, 9 Nov 2012, http://torrentfreak.com/texas-child-beating-p2p-hating-judge-reinstated-121109/ [checked 5 May 2013].

Know Your Meme. ”Piracy, It's a Crime.” Know Your Meme, entry updated Jan 2013, http://knowyourmeme.com/memes/piracy-its-a-crime [checked 4 May 2013].

Kotkin, Joel. ”Are Millennials the Screwed Generation?” The Daily Beast, 16 Jul 2012, http://www.thedailybeast.com/newsweek/2012/07/15/are-millennials-the-screwed-generation.html [checked 5 May 2013].

Lee, Dave. ”European Parliament rapporteur quits in Acta protest.” BBC News, 27 Jan 2012, http://www.bbc.co.uk/news/technology-16757142 [checked 4 May 2013].

Lee, Timothy B. ”Obama administration defends $222,000 file-sharing verdict.” Ars Technica, 12

53

Feb 2013, http://arstechnica.com/tech-policy/2013/02/obama-administration-defends-222000-file-sharing-verdict/ [checked 4 May 2013].

Luger, Josh. ”Why The Entire TV Industry Will Be Watching Netflix's 'House Of Cards' Gamble.” Business Insider, 31 Jan 2013, http://www.businessinsider.com/netflix-house-of-cards-gamble-2013-1 [checked 2 May 2013].

Masnick, Mike. ”Hurt Locker Producer Says That Criticizing His Plan To Sue Fans Means You're A Moron And A Thief.” Tech Dirt, 19 May 2010, http://www.techdirt.com/articles/20100518/2341519482.shtml [checked 4 May 2013].

Maxwell, Andy. ”Judge Delays Teksavvy Copyright Trolls For Public Interest Intervention.” Torrent Freak, 15 Jan 2013, http://torrentfreak.com/judge-delays-teksavvy-copyright-trolls-for-public-interest-intervention-130115/ [checked 4 May 2013].

Maxwell, Andy. ”Megaupload to Universal: You’ve Got Some Explaining To Do.” Torrent Freak, 28 Dec 2011, http://torrentfreak.com/megaupload-to-universal-youve-got-some-explaining-to-do-111228/ [checked 4 May 2013].

Maxwell, Andy. ”Pirate Bay Founder Held In Solitary Confinement.” Torrent Freak, 20 Oct 2012, http://torrentfreak.com/pirate-bay-founder-held-in-solitary-confinement-write-him-a-letter-today-121020/ [checked 5 May 2013].

Maxwell, Andy. ”Pirate Bay’s Gottfrid Sends His Warmest Thanks to all Supporters.” Torrent Freak, 2 Feb 2013, http://torrentfreak.com/pirate-bays-gottfrid-sends-his-warmest-thanks-to-all-supporters-130202/ [checked 5 May 2013].

Maxwell, Andy. ”Police Raid 9-Year-Old Pirate Bay Girl, Confiscate Winnie The Pooh Laptop.” Torrent Freak, 22 Nov 2012, http://torrentfreak.com/police-raid-9-year-old-pirate-bay-girl-confiscate-winnie-the-pooh-laptop-121122/ [checked 5 May 2013].

Maxwell, Andy. ”Richard O’Dwyer Piracy Extradition Battle Ended in New York Court.” Torrent Freak, 7 Dec 2012, http://torrentfreak.com/k-court-121207/ [checked 5 May 2013].

Maxwell, Andy. ”US Ambassador Pleads: Stop Pirating Game of Thrones, It's Stealing.” Torrent Freak, 26 Apr 2013, http://torrentfreak.com/us-ambassador-pleads-stop-pirating-game-of-thrones-its-stealing-130426/ [checked 5 May 2013].

McCarthy, Kieren. ”Meet Congresswoman Zoe Lofgren: she understands how the internet works.”

54

.Nxt, 22 Sep 2011, http://news.dot-nxt.com/2011/09/22/zoe-lofgren-town-hall [checked 2 May 2013].

McCullagh, Declan. ”Rep. Lofgren: Copyright bill is the 'end of the Internet'.” Cnet, 27 Oct 2011, http://news.cnet.com/8301-31921_3-20126590-281/rep-lofgren-copyright-bill-is-the-end-of-the-internet/ [checked 3 May 2013].

McSherry, Corynne. ”Disastrous IP Legislation Is Back – And It’s Worse than Ever.” Electronic Frontier Foundation website, entry posted 26 Oct 2011, https://www.eff.org/deeplinks/2011/10/disastrous-ip-legislation-back-%E2%80%93-and-it%E2%80%99s-worse-ever [checked 3 May 2013].

Mudgal, Kartik. ”Valve releases PR; Steam userbase doubles in 2011.” Gaming Bolt, 6 Jan 2012, http://gamingbolt.com/valve-releases-pr-steam-userbase-doubles-in-2011-big-picture-mode-coming-soon [checked 2 May 2013].

Munarriz, Rick Aristotle. ”Why Does Wall Street Hate Netflix?” Daily Finance, 18 Jan 2012, http://www.dailyfinance.com/2012/01/18/why-does-wall-street-hate-netflix/ [checked 2 May 2013].

Pakinis, Tom. ”The Pirate Bay: 'Google rankings change is good for us'.” MusicWeek, 17 Aug 2012, http://www.musicweek.com/news/read/the-pirate-bay-google-rankings-change-is-good-for-us/051427 [checked 1 May 2013].

Piratpartiet. ”Piratpartiets principer.” Website Piratpartiet, entry published 19 May 2012, http://www.piratpartiet.se/politik/piratpartiets-principer/ [checked 15 Apr 2013].

PROTECT IP / SOPA Breaks the Internet, Video by Fight for the Future, 2011, viewable at: http://www.fightforthefuture.org/pipa [checked 3 May 2013].

Richmond, Shane. “The graph the record industry doesn't want you to see.” The Telegraph, 12 Nov 2009, http://blogs.telegraph.co.uk/technology/shanerichmond/100004204/the-graph-the-record-industry-doesnt-want-you-to-see/ [checked 1 May 2013].

Russia Today. ”Dotcom claims US officials used Megaupload.” Russia Today USA, 13 Mar 2012, http://rt.com/usa/news/dotcom-us-megaupload-american-491/ [checked 1 May 2013].

Rossini, Carolina, Maira Sutton, and Gwen Hinze. ”Anti-Counterfeiting Trade Agreement.” Electronic Frontier Foundation website, https://www.eff.org/issues/acta [checked 4 May 2013].

55

Satter, Raphael and Vanessa Gera. ”US sites hacked as objections grow to piracy deal.” NBC News, 17 Feb 2012, http://www.nbcnews.com/id/46427642/ns/technology_and_science-security [checked 4 May 2013].

Savage, Phil. ”Steam concurrent users growing 300% faster than start of 2012.” PC Gamer, 29 Jan 2013, http://www.pcgamer.com/2013/01/29/steam-concurrent-users-growing-300-faster-than-start-of-2012-dota-2-players-rising-steadily/ [checked 2 May 2013].

Siegler, M.G.. ”Netflix's market capt has plummeted...” Personal blog of TechCrunch columnist, Oct 2011, http://parislemon.com/post/11912243701/netflixs-market-cap-has-plummeted-from-around-15 figures based on Google Finance. [checked 2 May 2013].

Singhal, Amit. “An update to our search algorithms.” The official Google Search blog, entry posted 8 Oct 2012, http://insidesearch.blogspot.co.uk/2012/08/an-update-to-our-search-algorithms.html [checked 1 May 2013].

Swartz, Aaron. ”Guerilla Open Access Manifesto.” Essay written July 2008, http://archive.org/details/GuerillaOpenAcc ess Manifesto [checked 16 Apr 2013].

Tassi, Paul. ”You Will Never Kill Piracy, and Piracy Will Never Kill You.” Forbes, 2 Mar 2012, http://www.forbes.com/sites/insertcoin/2012/02/03/you-will-never-kill-piracy-and-piracy-will-never-kill-you/3/ [checked 3 May 2013].

The Pirate Bay. ”Blog.” blog entry posted 18 Feb 2013, http://the piratebay.se/blog [checked 16 Apr 2013].

The Pirate Bay Blog. ”Google ranking TPB (and others) lower.” The Pirate Bay blog, entry published 15 Aug 2012, https://thepiratebay.se/blog/220 [checked 2 May 2013].

The Associated Press. ”Protesters rally across Poland to express anger at international copyright treaty.” The Hamilton Spectator, 25 Jan 2012, http://www.thespec.com/news/world/article/660754--protesters-rally-across-poland-to-express-anger-at-international-copyright-treaty [checked 4 May 2013].

Tribe, Laurence H. ”The 'Stop Online Piracy Act' (SOPA) Violates the First Amendment.” Tribe Legis Memo on SOPA, 6 Dec 2011, http://www.scribd.com/doc/75153093/Tribe-Legis-Memo-on-SOPA-12-6-11-1 [checked 3 May 2013].

56

United States Court of Appeals for the Eight Circuit. No. 11-2820, filed 11 Sep 2012, http://www.ca8.uscourts.gov/opndir/12/09/112820P.pdf [checked 4 May 2013].

Valve. ”Big Picture.” Steam official website, http://store.steampowered.com/bigpicture/ [checked 2 May 2013].

Van Der Sar, Ernesto. “The Pirate Bay Becomes #1 File-Sharing Site as Cyberlockers Collapse.” Torrent Freak, 31 Mar 2013, http://torrentfreak.com/the-pirate-bay-becomes-1-file-sharing-site-cyberlockers-collapse-130330/ [checked 5 May 2013].

Van Der Sar, Ernesto. “Pirate Bay's Founder Group 'Piratbyrån' Disbands.” Torrent Freak, 23 Jun 2010, http://torrentfreak.com/pirate-bays-founding-group-piratbyran-disbands-100623/ [checked 16 Apr 2013].

Van Der Sar, Ernesto. ”Pirate Bay Founder Helped Wikileaks On Several Fronts.” Torrent Freak, 5 Feb 2013, http://torrentfreak.com/pirate-bay-founder-helped-wikileaks-on-several-fronts-130205/ [checked 16 Apr 2013].

Van Der Sar, Ernesto. ”The Pirate Bay Slams PIPA/SOPA in Public Statement. Torrent Freak, 19 Jan 2013, http://torrentfreak.com/the-pirate-bay-slams-pipa-and-sopa-120118/ [checked 1 May 2013].

Van Der Sar, Ernesto. ”Piracy is NOT Theft: Problems of a Nonsense Metaphor.” Torrent Freak, 4 Nov 2011, http://torrentfreak.com/piracy-is-not-theft-111104/ [checked 16 Apr 2013].

Waters, Darren. ”Pirate Bay beached but not sunk.” BBC News, entry published 17 Aug 2009, http://www.bbc.co.uk/blogs/technology/2009/04/pirate_bay_beached_but_not_sun.html [checked 2 May 2013].

Weber, Harrison. ”Spotify announces 5M+ paid subscribers globally.” The Next Web, 6 Dec 2012, http://thenextweb.com/insider/2012/12/06/spotify-announces/ [checked 1 May 2013].

Wingfield, Nick. ”Game Maker Without a Rule Book.” The New York Times, 8 Sep 2012, http://www.nytimes.com/2012/09/09/technology/valve-a-video-game-maker-with-few-rules.html?_r=3&pagewanted=all [checked 2 May 2013].

Worstall, Tim. ”Google's Changing The Algorithm Again: This Might Not Be A Good Idea.” Forbes, 8 Nov 2012, http://www.forbes.com/sites/timworstall/2012/08/11/googles-changing-the-algorithm-again-this-might-not-be-a-good-idea/ [checked 1 May 2013].

57

Printed Books:

Fleischer, Rasmus. ”Femton gastar på en död mans kista – om framtidens nätpolitik.” Efter The Pirate Bay, eds Jonas Andersson and Pelle Snickars. Värnamo: Fälth & Hässler, 2010, 259-280.

Lessig, Lawrence. Free Culture. New York: The Penguin Press, 2004.

Hartley, John. Digital Futures for Cultural and Media Studies. West Sussex: John Wiley & Sons, 2012.

Reports and Studies:

Aguiar, Luir and Bertin Martens. Digital Music Consumption on the Internet: Evidence from Clickstream Data. Institute for Prospective Technological Studies Digital Economy Working Paper for the European Commission, 2013/04, http://www.scribd.com/doc/131005609/JRC79605 [checked 1 May 2013].

Andersen, Birgitte and Marion Frenz. The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music: A Study for Industry Canada. Report by the Department of Management, University of London, 2007.

BI Norwegian Business School. ”Downloading music and CD purchases.” BI Norwegian Business School, news posted 23 Apr 2009, http://www.bi.edu/about-bi/News/News-archive-2009/Downloading-music-and-CD-purchases/ [checked 16 Apr 2013].

Findahl, Olle. Svenskarna och Internet 2012. Stockholm: Danagårds LiTHO, Ödeshög, 2012, https://www.iis.se/docs/SOI2012.pdf [checked 1 May 2013].

Johansson, Daniel and Markus Larsson. The Swedish Music Industry in Numbers. Report via KTH Royal Institute of Technology, Stockholm, 2009, http://ec.europa.eu/avpolicy/docs/other_actions/col_2009/pub/kth_annex.pdf [checked 1 May 2013].

Karaganis, Joe. ”Where do Music Collections Come From?” The American Assembly at Columbia University, posted on 15 Oct 2012, http://piracy.americanassembly.org/where-do-music-collections-come-from/ [checked 16 Apr 2013].

Karaganis, Joe and Lennart Renkema. Copy Culture. United States of America: The American

58

Assembly, 2013, http://piracy.americanassembly.org/wp-content/uploads/2013/01/Copy-Culture.pdf pg 5, [checked 16 Apr 2013].

Larsson, Stefan. ”Cybernorms – processes of norm creation in young web cultures.” Cybernormer, entry published 14 Apr 2010, http://cybernormer.se/2010/04/14/cybernorms-%E2%80%93-processes-of-norm-creation-in-young-web-cultures/ [checked 16 Apr 2013].

Marketing Charts Staff. ”Study: P2P Music Downloads Increase Music CD Sales.” Marketing Charts, 7 Nov 2007, http://www.marketingcharts.com/interactive/study-p2p-music-downloads-increase-music-cd-sales-2287/ [checked 16 Apr 2013].

Motion Picture Association of America Inc. ”Theatrical Market Statistics 2011,” http://www.mpaa.org/resources/5bec4ac9 - a95e-443b-987b-bff6fb5455a9.pdf MPAA.org, [checked 1 May 2013].

Schulze, Hendrik and Klaus Mochalski. Internet Study 2008/2009. Leipzig: ipoque GmbH,http://www.ipoque.com/sites/default/files/mediafiles/documents/internet-study-2008-2009.pdf [checked 1 May 2013].

Silverthorne, Sean. ”Music Downloads: Pirates – or Customers?” Harvard Business School, entry posted 21 Jun 2004, http://hbswk.hbs.edu/item/4206.html [checked 16 Apr 2013].

Svensson, Måns and Stefan Larsson. Social Norms and Intellectual Property . Research report by the Dept. of Sociology and Law, Lund University, 2009.

Van Eijk, Nico, Joost Poort, and Paul Rutten. ”Legal, Economic, and Cultural Aspects of File Sharing.” Communications & Strategies, nr 77 [1st Q. 2010]: 35-54.

Letters to Government Organs:

Letter from the international civil and human rights community to United States Congress: https://www.cdt.org/files/pdfs/SOPA-letter-from-Intl-human-rights-community.pdf

Letter from 204 entrepreneurs to United States Congress: http://www.quora.com/Simon-Olson/Posts/Reject-SOPA-and-PIPA-Engine-Advocacy-Giving- entrepreneurs-a-voice-in-government [checked 3 May 2013].

59

Letter from 50+ venture capitalists to United States Congress: http://act.demandprogress.org/act/protect_ip_vc/ [checked 4 May 2013].

Letter from 75+ Law Professors to United States President Barack Obama: http://www.wcl.american.edu/pijip/go/blo g - post/academic-sign-on-letter-to-obama-on-acta [checked 4 May 2013].

Médecins Sans Frontières. ”A Blank Cheque for Abuse: The Anti-Counterfeiting Trade Agreement (ACTA) and its Impact on Access to Medicines.” Médecins Sans Frontières, Feb 2012, http://www.msfaccess.org/sites/default/files/MSF_assets/Access/Docs/Access_Briefing_ACTABlankCheque_ENG_2012.pdf [checked 4 May 2013].

Professors' letter in opposition to PIPA and SOPA to the United States House of Representatives: https://www.cdt.org/files/pdfs/SOPA_House_letter_with_PROTECT_IP_letter_FINAL.pdf

Video Material:

Futurama: Bender's Game (Dwayne Carey-Hill, 2008)

The I.T. Crowd (Ash Atalla, prod, 2006-2010)

60

61