Hollywood playing hardball on piracy

Student Richard O'Dwyer arrives at court in London to receive judgment on a US extradition request. Photo / AFP
Student Richard O'Dwyer arrives at court in London to receive judgment on a US extradition request. Photo / AFP

When it comes to protecting its property Hollywood plays hardball.

This month a British judge ruled that Richard O'Dwyer, a 23-year-old student, can be extradited to the United States to face charges he posted links to pirated TV shows and films via TVShack, a UK-based website O'Dwyer created as a teenager.

He faces up to 10 years in prison if convicted, despite doubts such sites break UK laws.

The ruling received less media coverage than police raids on MegaUpload in New Zealand, part of a global crackdown on the file- sharing site by the US Justice Department (DoJ).

While Kim Dotcom, aka Kim Schmitz, was identified as MegaUpload's founder, the New York Post fingered rapper Swizz Beatz - aka Kasseem Dean, who is married to pop singer Alicia Keyes - as the CEO. Dean was not charged.

The DoJ said the raids were "among the largest criminal copyright cases ever brought by the United States," alleging MegaUpload received 50 million visitors a day.

Both cases sent a clear warning: when it comes to securing the entertainment industry's assets Washington has long arms. Whether such tactics serve the public is in dispute.

For the MegaUpload saga is part of a wider struggle that pits intellectual copyright owners - in this instance the powerful Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) - against those who argue that heavy-handed laws and policing threaten freedom.

"It's a very complex issue," says Jonathan Band, a copyright lawyer in Washington DC. "The ultimate resolution will involve new business models that give users alternatives to copyright infringement." As examples he cites iTunes and e-Books, which allow US users to download songs and books for around US$1 and US$10 respectively.

"One of the big problems is that the industry - that is Hollywood - hasn't responded quickly enough to demand. That leaves a vacuum in the marketplace. Pirates fill it."

Corporate obsession with intellectual copyright has long been central to congressional lobbying. In 1998 a compliant Washington extended copyright - already the life of an author plus 50 years, or 75 years for corporate authorship - by 20 years via the Copyright Term Extension Act.

Now corporates want US courts to enforce this worldwide.

Last week, heavy-handed legislation to do this provoked a huge public backlash, derailing the Stop Online Piracy Act (SOPA) in the House of Representatives, and Protect IP Act (PIPA) in the Senate, even as the DoJ raided MegaUpload.

The entertainment industry-friendly legislation would have enabled US courts to demand internet service providers and search engine companies bar access to alleged pirates or risk being shut down.

The companies would have had to monitor their online traffic to protect themselves.

In a worst-case scenario, say critics, the US could target a site like YouTube if one person posted a video that violated copyright.

Similar clumsy US efforts to police cyberspace date to the Communications Decency Act, struck down in 1997 as unconstitutional.

Many questions surround the MegaUpload case. Criminal copyright infringement cases are rare in the US, about 100 a year according to Band, compared with thousands of civil suits. Did Hollywood's deep Beltway connections give the MPAA extra heft? Last August, MegaUpload accepted liability in a civil suit involving a porno company. "Whether you have criminal copyright infringement for secondary liability is, I think, an open question," says Band. Given MegaUpload's deep pockets this may be tested in the courts.

And then there's copyright infringement itself. How widespread is it? Last year the US Government Accountability Office concluded figures used by the industry were unsupported, but were accepted by lawmakers.

They may also have been seduced by shaky logic, says Band. "Does a student who downloads a movie displace the sale of that movie? Copyright holders assume a one-to-one relationship between downloads and sales. That makes no sense. It doesn't mean a student on a fixed budget would buy a movie ticket if he couldn't download the movie."

Industry efforts to stamp out piracy ricochet far beyond the bottom line. The internet has become a formidable democratic weapon, used by activists in the Arab Spring, the Occupy movement and other protests. Sweden's Pirate Party is Europe's fastest growing political movement.

In an interview with an online newspaper, The Inquirer, Sir Tim Berners-Lee, who created the world wide web, warned that favouring commerce threatens online freedom.

This prospect is anathema to those who believe in the cyber commons, in contrast to the corporate impulse to enclosures backed by government.

This monopolistic impulse is challenged by the pirates. Whatever happens with MegaUpload, hostilities will likely continue.

Writing in the Washington Post, Rebecca MacKinnon, author of Consent of the Networked: The Worldwide Struggle for internet Freedom, noted that online regulation efforts like SOPA can provide a poor template for other nations.

Foreign activists "had good reason to worry an anti-piracy bill such as SOFA" would force foreign sites seeking US audiences "to set up monitoring and censorship mechanisms".

This Orwellian fear is echoed by the Electronic Frontier Foundation's Global Chokepoints Project, which partners activists around the world, including internetNZ.

"We're seeing initiatives, often backed by Hollywood, to turn internet intermediaries into copyright police," says the EFF's Rainey Reitman. "It's happening through legislative proposals and back room deals."

She cites Spain's Ley Sinde law as just one example.

"WikiLeaks shows pressure was put by US rightsholders on the US Government, which pressured Spain. The bill was rescinded due to public pressure, but passed anyway."

A report in El Pais, which cites a February 2008 cable from the US ambassador in Madrid, said Spain was threatened with inclusion on the US Special 301 watch list - nations with "bad" intellectual property policies. Like a similar law passed in France, the Ley Sinde law has a "three strikes" - three allegations of copyright infringement - provision.

New Zealand's Copyright Amendment Act also has three strikes. "Leaked diplomatic cables show the US wanted to draft it for us," internetNZ said in a statement that stressed balance between copyright protection and public access should not be made via "a private rights lens."

The MPAA and RIAA have long enjoyed a cosy relationship with Washington, greased by US$2 million in campaign contributions to SOPA sponsors in 2010. But draconian laws pushed by old media have enraged new media titans like Google's Eric Schmidt and Facebook's Mark Zuckerberg.

Silicon Valley is stepping up contributions and lobbying hard. Unlike the MPAA or RIAA, social websites have vast, instant reach.

Last week Wikipedia went dark for 24 hours and hundreds of sites closed their pages briefly or posted protests as part of the biggest online demonstration in internet history.

"As the recent blackout campaigns show, people are not ready to let such issues go ignored as copyright industries push for greater control in cyberspace," internetNZ said.

Several US lawmakers, reminded that a free media is fundamental to democracy, suddenly developed doubts. President Barack Obama said he would sign neither bill.

They were also criticised by Mitt Romney, Newt Gingrich and Ron Paul.

By this week both bills were dead. But the issue remains.

- NZ Herald

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