Guest Post: Online Piracy – The Way Forward?

Kartik Chawla brings us his 3rd entry to our SpicyIP Fellowship applicant series with this post looking into how copyright laws have by and large proven to be ill equipped to deal with issues of digital media content. He goes on to recommend that the law should be made more accommodating to the internet and related consumer behaviour. [Readers interested in finding out more details about our SpicyIP Fellowship applicant series can click here.]

Online Piracy – The Way Forward?

By: Kartik Chawla

One of the greatest issues that the Old Guard of the media production realm has had with the Internet is the copyright infringement that it facilitates. As such, there have been multiple attempts at restricting the internet to protect copyright in various ways, the most notable international examples of which are the DMCA, SOPA and PIPA, MPAA’s structured siege against Google, the essentially pointless litigation against Pirate Bay, and the story of Aaron Swartz. The Indian examples include litigation on Section 81 of the Information Technology Act, and the spate of troubling orders that have been passed in the last year alone.

The Draft National IPR policy, released by the IPR Think Tank last month, continues this approach. The Policy is for the most part silent on online piracy, but when it does discuss it, it states only that that the enforcement authorities should be strengthened and enforcement methods should be stepped up to combat this phenomenon.

But this excessively protectionist approach, as this post shows, is misguided and out-dated. There has long been a strong argument that the old content distribution model and the copyright regime that protects it are past their prime, and that it needs to change drastically to accommodate the Internet. This position has gained even more support in recent years due to the consistent failures of anti-piracy laws and measures the world over. An example of this is the failure of the Spanish Sinde Law, which is quite similar to the SOPA Bill. The anti-piracy measures of the Indian government have failed as well, as evidenced by the fact that last year, India was placed on the 2014 International Piracy Watch List by the International Creativity and Theft-Prevention caucus.

The fact is, the Internet has fundamentally altered content production. The Internet and accompanying technological developments have made content easier to produce, and infinitely easier to access, leading to changes in the market demands. The law is as always lagging behind – but this time, it has the support of an entire industry behind it.

Point of Failure

Online piracy is not just a legal problem – it is an economic, service problem, entrenched in the existing copyright system which is fighting to sustain the obsolete model. For instance, the movie ‘The Interview’ was recently released on online video platforms by Sony Pictures. But this release was limited to the US only – anyone who wanted to watch the movie outside US actually could not watch it legally. So if they wanted to watch the movie, they had to pirate it, even if they were willing to pay for it. Even with Sony releasing the movie on online video platforms, this disconnection between the supply and demand of content along with the inconvenience of the old model is a huge part of what leads to piracy.

Another example of the above is Digital Rights Management, one more consequence of the Old Guard’s fear of piracy. Ideally, when sales are made to consumers, the title to the goods sold transfers entirely to them. The seller no longer has any claim over the object, other than some exceptions under the ‘First Sale’ doctrine. But this changes when digital goods and DRMs are involved. With digital goods, you aren’t buying the product – you’re licensing/borrowing it. Thus, you don’t actually own the product in question at all. If you want to own them, you have no choice. You either have to buy the physical copy or break the DRM.

Notably, last year the United Kingdom took a slightly different approach to piracy through their Voluntary Copyright Alert Programme (VCAP). While not exactly a ‘decriminalisation’ of piracy, the scheme indicates a shift in their stance regarding prosecution of consumers for pirating content, at least for those ISPs who take part in the voluntary program.

Changing Markets

The old model of distribution of content is simply unsustainable in the new market created by internet, which is a major cause of the failure of the above measures – and a major part of why Netflix and Spotify succeed, because they capitalize on this very service deficiency. It thus comes as no surprise that Netflix and Spotify actually decrease piracy.

Furthermore, BitTorrent has recently taken strong steps to prove that torrents are not only a means for piracy but can actually be a viable business model. It launched a service called ‘Bundles’, which allows content owners to ‘bundle’ free content with paid content and distribute it. This system allows consumers to share legitimate files through the p2p network from the content creators/distributors, cutting down server and hosting costs for the latter. It also allows creators to market their products directly to the consumer. Last year, Thom Yorke of Radiohead released his album ‘Tomorrow’s Modern Boxes’ through ‘Bundles’ in September, making it the first paid-for-album to be sold through it. And he has made as much as $20 Million through it since then!

Furthermore, many self-published authors and amateur artists have actually found releasing their work on services like Spotify and torrents a good way to gain recognition for their work, before going commercial. Also notable here is the Flattr experiment, co-founded by Peter Sunde, one of the original team at Pirate Bay, and the Aereo and JaadoTV cases.

Conclusion

Therefore, rather than expanding protection in the manner indicated by the Draft Policy and focusing on the pointless practice of trying to curb the Hydra that is online piracy, a better option in the longer run would be to actively try and accommodate the internet herein, and to allow innovators a bit more breathing room so that they can help the industry adapt to the new technologies. This would give start-ups more room to experiment with new, alternative models, and would help the Indian technology sector to boom. It would also lead to a more robust model which can accommodate and even promote the changes that are continuously brought into the content production sector by the evolution of technology, in place of the current unsustainable system.