Some claim that none are harmed by internet piracy, and that the viral marketing aspects of it actually help music, book, and video sales.

Regardless, those who assume there is no profit motive in piracy must be missing the ads plastered all over major pirate sites. It is just a matter of time before the laws turn to prosecuting those who provide the income for pirates: the advertisers.

I know several fanfic sites which had their donation accounts shut down by Paypal when they were found to provide adult content. I don’t have any objection to those sites personally, but whatever. The sites began accepting donations by mail and started taking on advertisers.

When you consider the huge number of hits pirate sites get, they are making some bank. Unlike fanfic sites, while creating no content themselves, pirates use the work of others to generate revenue.

Pirating would be a lot less attractive if there were no money in it.

It is difficult and undesirable to go after users of pirated material. Few want to crack down on fans. I certainly don’t. Pirates themselves can simply move their servers to foreign climes and keep right on posting.
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But if prosecutors decide to get tough and prosecute advertisers, banks, and online payment services for aiding organized crime, we may see pirates forced out of the game because there is not enough money to pay for bandwidth, equipment, legal, and other services. I expect future prosecutions under the RICO statute, as well as additions to the statute to facilitate this.

Skipis told the audience of his opening speech that his group intends to keep German courts busy with thousands of lawsuits. He also called P2P file sharing “organized crime” and lamented that politicians were ignoring the impact illegal downloads were having on book publishers.

Wherever you stand on intellectual property rights, you can bet that governments world wide are going to start cracking down on internet content even more than before. Pirating costs the economy too much to be ignored by businesses and governments hurting for dollars. According to this article, 95% of music downloads are illegal.

A number of European countries are adopting/debating a 3 Strikes Law. The penalty: cut off internet service to people who have three copyright violations. Some consider the punishment too severe, possibly a violation of human rights.

A recent draft of the French three strikes proposal, backed by President Nicolas Sarkozy, calls for a “graduated response.” Through ISP monitoring, users will receive e-mail and registered letter notifications that material was illegally downloaded by the IP address allocated to their accounts. Finally they could be subject to a one-year broadband service suspension. All ISPs would be required to comply with the suspension plan, so a chastised user could not simply switch providers to escape penalty. The plan creates a “High Authority” to oversee the notification process and possible broadband termination. This Authority would be able to obtain one year’s worth of Internet-use records based just on accusations of suspected infringement. The ultimate penalty, discontinuation of service and being placed on a banned user list, would be administered without a trial.

While popular pirate sites and their users claim that their efforts have made movies, music and books more accessible, the claims that they have also raised sales are largely unproven. DVD sales are expected to plummet 11% next year alone. Book sales are also on a major downward trend. While the rise of pirating may have coincided with a prior rise in film, music and book sales, a booming economy may have had more to do with those sales than the publicity efforts of pirates. Individual anecdotal tales of viral marketing abound, but without a control group comparison, or a comparable study of the sales trends of product which did not enjoy booming sales increases, there’s really no way to tell just what effect pirate sales have book by book, movie by movie.

Major governments already block content which is objectionable, such as porn. Expect the legal definition of objectionable material to expand, and to expand in such a way that it will affect both pirates and political speech.

In addition to all the other weird misinformation out there on the internet about copyright – and the rights of creators in general – the most common misconception on the part of many folks is that copyright violation is not a crime. It is merely a civil matter, and not “stealing”.

Copyright violation can be a felony.

SECTION 2319 OF TITLE 18, UNITED STATES CODE

* * * * * * *

S 2319. Criminal infringement of a copyright

(a) * * *

(b) Any person who commits an offense under subsection (a) of this section-

(1) shall be fined not more than $250,000 of imprisoned for not more than five years, or both, if the offense-

(A) involves the reproduction or distribution, during any one-hundred-and-
eighty-day period, of at least one thousand phonorecords or copies infringing
the copyright in one or more sound recordings;
(B) involves the reproduction or distribution, during any one-hundred-and-
eighty-day period, of at least sixty-five copies infringing the copyright in
one or more motion pictures or other audiovisual works; or
(C) is a second or subsequent offense under either of subsection (b)(1)
or (b)(2) of this section, where a prior offense involved a sound recording,
or a motion picture or other audiovisual work;

(2) shall be fined not more than $250,000 or imprisoned for not more than two years, or both, if the offense-

(A) involves the reproduction or distribution, during any one-hundred-and-
eighty-day period, of more than one hundred but less than one thousand
phonorecords or copies infringing the copyright in one or more sound recordings;
or
(B) involves the reproduction or distribution, during any one-hundred-and-
eighty-day period, of more than seven but less than sixty-five copies
infringing the copyright in one or more motion pictures or other audiovisual
works; and

(3) shall be fined not more than $25,000 or imprisoned for not more than one year, or both, in any other case.)

(b) Any person who commits an offense under subsection (a) of this section-

(1) shall be imprisoned not more than 5 years, or fined in the amount set
forth in this title, or both, if the offense consists of the reproduction or distribution, during
any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works,
with a retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this
title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title,
or both, in any other case.

(c) As used in this section-

(1) the terms (“sound recording”, “motion picture”, “audiovisual work”, “phonorecord”,)
“phonorecord” and “copies” have, respectively, the meanings set forth in section 101
(relating to definitions) of title 17; and
(2) the terms “reproduction” and “distribution” refer to the exclusive rights of a copyright
owner under clauses (1) and (3) respectively of section 106 (relating to exclusive rights in
copyrighted works), as limited by sections 107 through (118,) 120, of title 17.

FN1 S. Rept. No. 102-268, 102d Cong., 2d Sess.

FN2 Act of January 6, 1897, 54th Cong., 2d Sess., 29 Stat. 481.

FN3 This provision also imposed liability on those who “knowingly and
willfully” aided and abetted criminal infringement.

FN4 The 1976 act dropped the aiding and abetting provision of the former law,
however.

FN5 For sound recordings, criminal infringement would lie for violation of
the reproduction, derivative, or distribution rights. For motion pictures,
criminal infringement would lie for infringement of the reproduction,
distribution, or public performance rights. 17 U.S.C. S 506(a)(1978).

FN6 Act of May 24, 1982, P.L. 97-180, 97th Cong., 2d Sess., 96 Stat. 91.

FN7 Section 2319 of title 18 currently reads:

(a) Whoever violates section 506(a) (relating to criminal offenses) of
title 17 shall be punished as provided in subsection (b) of this section and
such penalties shall be in addition to any other provision of title 17 or any
other law.

(b) Any person who commits an offense under subsection (a) of this section-

(1) shall be fined not more than $250,000 or imprisoned for not more than 5 years, or
both, if the offense-

(A) involves the reproduction or distribution, during any 180-day period, of at
least 1,000 phonorecords or copies infringing the copyright in one or more sound
recordings;
(B) involves the reproduction or distribution, during any 180-day period, of at
least 65 copies infringing the copyright in one or more motion pictures or other
audiovisual works; or
(C) is a second or subsequent offense under either of subsection (b)(1) or (b)(2) of
this section, where a prior offense involved a sound recording, or a motion picture
or other audiovisual work;

(2) shall be fined not more than $250,000 or imprisoned for not more than 2 years, or
both, if the offense-

(A) involves the reproduction or distribution, during any 180-day period, of more
than 100 but less than 1,000 phonorecords or copies infringing the copyright in
one or more sound recordings; or
(B) involves the reproduction or distribution, during any 180-day period, of more
than 7 but less than 65 copies infringing the copyright in one or more motion
pictures or other audiovisual works; and

(3) shall be fined not more than $25,000 or imprisoned for not more than 1 year, or both,
in any other case.

FN8 Specifically, S. 893 as passed by the Senate provided for:
(1) A fine of not more than $250,000 or imprisonment for not more than 5 years or both if, during any 180-day period, at least 50 copies infringing the copyright in one or more computer programs are reproduced or distributed;
(2) A fine of not more than $250,000 or imprisonment for not more than 2 years or both if, during any 180-day period, more than 10 but less than 50 copies infringing the copyright in one or more computer programs are reproduced or distributed.
(3) A second or subsequent offender under either (1) or (2) will be punished under (1).

That’s just a portion of the copyright law, and you can read more here at this site that reviews the history of Federal Copyright Act legislation.


Here is the case of a Texas man who went to jail for selling video games and software over the internet.

While most of the laws regarding criminal copyright violation were targeted at software and film, the fact remains that copyright violation of any protected work in sufficient quantity and of a sufficient dollar amount can be a crime. That includes sites which scan and post thousands of comic books.

Further information from the Department of Justice website.

…Evidence of discrete monetary transactions (i.e., the selling of infringing goods for a particular price) provides the clearest evidence of financial gain, but such direct evidence should not be a prerequisite to prosecution. Such a stringent requirement would ignore the plain wording of the statute, which requires only the showing of commercial or financial purpose…

While our review has not been comprehensive, it nonetheless tends to show that courts are willing to consider a wide variety of sources of evidence bearing on the issue of commercial purpose, and are generally willing to draw reasonable inferences therefrom. We see no reason why such sources of evidence would not be considered in the context of violations committed through the use of computer bulletin board systems. This reading of this statutory element has been informally and anecdotally confirmed by legal experts for trade associations such as the Motion Picture Association of America, the Software Publisher’s Association, and the Business Software Alliance.

President Clinton signed a more strongly worded Criminal Copyright Violation Act in 1997. You can read more about it here.

The “No Electronic Theft Act” would impose criminal liabilities on any individual who infringes copyright for purposes of “commercial advantage or private financial gain.” In a more complicated but perhaps more important provision, the law would also impose criminal liability on any person who reproduces or distributes one or more copies of one or more works during a 180-day period, if such works have “total retail value of more than $1,000.” Hence, a faculty member loading materials onto a website or even making photocopies for classroom distribution, if the value of the copies totals more than $1,000, may now actually face the prospect of a criminal violation of copyright.

Copyright violation is also a crime in England. As in the USA, minor infractions are a matter of tort, but go too far, and you’re a criminal.

For more very valuable information on common copyright myths, please take the time to read this excellent article by Brad Templeton, 10 Big Myths About Copyright. It goes over fanfic, non-profit copyright violation, and other very common copyright gaffes that are on every single fan website and are the subject of lively debate right now.

This was originally posted to the old website, and Ray Cornwall had some important points to add I wanted to preserve here.

“I don’t want to sound all Cory Doctorow, but the current laws on copyright are crappy. They’re not crappy because stealing is good; they’re wrong because they’re nearly impossible to enforce unless you have millions to spend on legal fees.

Chris Rock has a joke about pre-nuptual agreements, and how everyone needs them before you get married. It’s one thing to lose half when you’re making 30 million. You still got 15 million. But when you’re making 30 THOUSAND, I ‘aint gonna live with my momma just cause you’re not happy!

Your recent boondoggle with the torrented ADS shows why. How would you ever start trying to get a prosecutor to go after the case? You wouldn’t. Even if you had the name, address, and a video of the scanner with a stack of your comics scanning away, your local DA would probably not want to pursue the case. But if a big entertainment concern comes by, that case will get taken on the flimsiest of evidence. This, even though you could lose a large percentage of money from pirating.”

I agree wholeheartedly with Ray, and believe copyright law needs revision. But the sheer volume of copyright violation on pirate sites makes it likely that individuals like me won’t be going after violators: major corporations and governments will, and they will do my lawyer’s job for me. It is easier for governments to block an IP address than it is to track people down and go to court.

When pirates take from people like me, they are not robbing a rich corporation, but someone who lives on a small farm and helps support a family. Most creators are not doing half so well.

Some express the point of view that anyone pirates take from is rich already, so they are not losing anything. If the creator is not rich, they are not deserving anyway, for if their work was any good, surely they’d be rich. The creator is being done a favor by having their work distributed to possible paying customers, even though only a tiny percentage of users actually go on to pay for content.

Pirate sites have millions of users, hundreds of millions of page views, and multiple advertisers. With ad space going for over $100 per 100,000 cycles, that means one popular site I scoped out pulls in well over $3,000,000 annually. And they regularly shill for donations claiming they need even more cash.

Oh, the irony; who advertises on a major bit torrent site? Partnership for a Drug Free America and The Salvation Army.

Hilarious.

internet

Intellectual property rights aren’t just about money. They are about integrity, creative control, the guard against having your work misused and misrepresented. I’m not happy seeing my work and the work of other creators going to support companies which do business with extremely exploitative pornographers. Thanks to some pirate websites, I don’t have a choice in the matter.

I heard directly from an internet pirate: his plea was that he wasn’t getting rich, he was just paying for bandwidth, his personal expenses, and more equipment. Therefore, no profit!

Well, if you made enough money to expand your operation, then that is the very definition of capitalism. You used your profts to expand your business by buying more equipment, and paying your personal living expenses so you could continue to do business. That’s what profit is for.

Only you did it without actually having to pay anyone who provided the content which paid for your equipment, your employees, your t-shirt manufacturing operation, and your legal team. Everyone wins except the creators. Worse yet, only rich creators can afford to object.

If you are hitting the counter on the pirate site, the only person who gets paid is the pirate, not the artist or writer. They convince people that those who put forth the effort to create things are not worthy of being paid for it unless you deign to do so. But those who distribute it are.

The pirate site is acting as a distributor or publisher. Only they are a distributor or publisher who pays no one but themselves.

We’ve simply gone from a print publishing environment where some gatekeepers used talent and didn’t pay them, to an electronic environment where some gatekeepers use talent and don’t pay them. Only they’ve created an ideological movement to insulate themselves by arguing that the only people hurt by the copyright violations are evil corporations. This enables the content user to feel morally superior about the situation.

Without copyright and the ability to make money on past work, creators cannot afford to create new work. It costs money to live while you are producing new work. That money comes from past work (especially if your publisher is Image Comics which pays no advances.)

Pirates are not performing a public service. Internet piracy isn’t just about wacky online hijinks. The pirates are making a buck.

And since bucks are tight, I fully expect more aggressive prosecution, and more aggressive laws to block content governments and corporations don’t like.

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FYI: An earlier version of this post appeared on the old A Distant Soil blog (now defunct) in 2007. It was revised and updated in March 2009.