Sinking the Pirate Ship - Combating Peer-to-Peer Networks Internationally

I: Introduction
I whole-heartedly expect that by the time I am a grandfather, the record and video stores in this country will be as obsolete as the Beta Max, Commodore 64 and the Eight-Track players. After all, it is rare...no...virtually impossible to walk in to a movie or record store these days and see several people shopping inside, let alone plugging their money into such an establishment anymore.

Ask any member of today's movie and music-buying public, and there is one common answer; the reason CD and DVD sales are plummeting is because people are using services such as iTunes, Yahoo or the now legal Napster to obtain their entertainment. In fact, in 2003, the re-launched Napster.com, as a legal pay service, garnered 3.2 million visitors. Apple's iTunes, by comparison, saw 2.7 million visitors that same year (OECD). And while these numbers continue to skyrocket on a yearly basis, CD sales continue their slump. According to BBC, for instance, American CD sales fell 10 percent in 2002 and have shown no signs of letting up in this day and age.

As Wriston states it in one of our class readings, progress and the future of society always has and always will be driven by technological advances. Accordingly, record companies, movie studios and the organizations behind them are embracing the new technology, doing what they can do make money in the iTunes generation. In other words, there are no initiatives in place to get people away from their computers and to start patronizing their local Sam Goody and Sun Coast entertainment outlets. On the other hand, there is one digital age technology such organizations have been fighting almost since their conception; the use of Peer-to-peer file-sharing networks and software for purposes of piracy.

While there is no official definition for piracy, in a nutshell, it can be defined as the copying, transmission, sharing and/or sale of audio/visual works, with or without monetary gain, without regard to copyright protection or its ownership (personal definition).

In this paper, I intend to show first off, how such technological "innovations" got their start and explain, in general, what the fuss is all about. I shall explain why the problem has been near alleviated of American run P2P networks promoting illegal activity, but of how such activity is still alive and well all over the world. I shall give insight of why some still defend P2P networks and what efforts have been done over the last several years. Finally, in arguing that such international networks kill the livelihood of the artists and authors of such works, what can be done on the international front.

II: What is a Peer-to-Peer Network, and their popularity
The OECD describes a peer to peer (P2P) network as one of three different kinds of communication structures in which a computer user interacts directly with another as to contribute to shared projects or to, most commonly, share files (2004). The software can be downloaded for little or no cost via designated websites, giving them free range of not one, but millions of hard drives worth of shared files.

Web users have, quite possibly, been swapping files across cyberspace since it became widely available to civilians during the 1990s. However, what really got the craze started was the advent of Napster, the creation of Shawn Fanning, a college dropout who took keen notice to people's complaints of the challenge of sharing music with one another over the internet. The software gained popularity very quickly, boasting 1.57 million users at any given time and 60 million on a daily basis. But upon Napster being shut down amidst a laundry list of lawsuits from various organizations and musicians, most notably Metallica drummer Lars Ulrich, several more P2P networks cropped up including Audiogalaxy, Kazaa, eDonkey, Gnutella, WinMX, Soulseek and Morpheus, just to name a few.

One major issue associated with P2P networks is their use of bandwidth. For instance, in 2002, a study found that 75 percent of all University's total bandwidth capacity was being used up by such networks (Wade, February 2004). Globally, it was approximately 70 percent accounted for going to the services (OECD, 2004).

On the other hand, the main issue is not precious bandwidth, but rather what is being "shared" over such networks. The services began, quite possibly, with good intentions, though quickly began to be used to post entire CDs and songs transferred onto computers to be shared with anyone with an internet connection and the designated free software, along with movies copied from DVDs or captured on video via VCRs or camcorders in the movie theaters. All of this was and is done without any regard to the ownership of such intellectual property or similar copyright protection. To put it another way, a whole new generation of "pirates" was born.

III: So, Why Do Copyright Holders Cry So Loud About This?
According to a poll conducted in 2004, it was estimated that nearly 60 million Americans see file-sharing as a "convenient, efficient and enjoyable way to obtain digital content," (OECD). This means, quite possibly, that any given person in our country and, quite possibly, most parts of the world with fast enough internet connections available, know at least a handful of people who downloads songs, albums, movies, games and/or entire episodes of television programs using such software.

However, as has been brought up on several occasions, what many find to bring them lots of joy and convenience and alleviating them of the stress of coughing up the twenty dollars for the umpteenth re-release of Star Wars or fifteen for My Chemical Romance's latest offering, in the long run, contributes to bringing the cycle of create-market-sell, then using those profits to make more and start over again, to a screeching halt.

Richard Taylor, the Senior Vice President of the Motion Picture Association of America (an organization well publicized for their crusades against piracy since the days of street-corner bootleg cassettes) summarizes some of the ramifications of P2P file-sharing. Over ninety percent of this "shared content," Taylor estimates consists of unauthorized copyrighted files.

The fiscal base, Taylor says, is extremely fragile. Each film that is released to theaters and later to DVD is a monumental risk, costing upwards of $100 million just to make and market. However, only one in ten films will turn up some profit (make up the cost plus extra) and six in ten projects will never break even. To make most of this money back, film makers are at the mercy of not only pay TV and DVD sales, but especially the foreign distribution of their creations. If such a trend continues, it is quite possible that the flow of entertainment could run dry and the livelihoods of the people involved in the creative process could be wrung out in the iron grip of P2P pirates.

Or if this sounds all to cliché, chew on these figures. The music industry claims to lose $3.5 billion per year due to such illegal practices and has seen a total 25 percent drop in CD sales over the last four years. Or how about this; in 2001, alternative rock group Linkin Park released their debut album, Hybrid Theory. Critically acclaimed and deemed a runaway success, the album sold 4.8 million copies in the US alone, making it the best selling album of the year. On the other hand, the entire album was reported to have been downloaded over P2P networks another eight million times (BBC). If those eight million copies were instead sales either in physical copy or on iTunes, that could've created a few new jobs, brought some more artists into the marketplace or even stimulate our precious economy.

IV: I Thought You Said American P2Ps Were ended. So, what's the big deal?
Napster, the God-send to music-hungry poor college students everywhere, was began in America and later shut down in 2001. As of 2003, more than half of all P2P networks originated in the United States. Others were set up in Germany, France, United Kingdom, Italy, Spain, India, China and Korea. In fact, in China, it was reported that, while the country's internet is extremely restricted by their government, 80 percent of all their internet activity is over P2P networks.

Since then, the majority of the American-based P2P networks were shut down with landmark cases such as MGM vs. Grokster (2005), which ruled that, in a nutshell, the creators not only furnished the tools for, but also encouraged their users to engage in acts of piracy. Kazaa, another popular network, also has found itself on the chopping block, possibly following in Napster's footsteps and becoming a legal online downloads store in the near future.

But while someone can no longer download the Grokster software and start plugging away to get something for nothing, an even bigger problem has arisen; pirate-friendly networks being built overseas and abroad. Use of such services such as WinMX, eDonkey and, most notoriously, the Sweden-based Pirate Bay has seen their number of American users skyrocket since the MGM vs. Grokster case. And the major problem is not that such countries don't care. Such places may have laws on the books, though cannot go in and start busting people. This is because of a lot of their users are foreigners. But then, the foreign countries also have their hands tied because their enforcement of their own piracy law to prosecute their own citizens becomes null and void, because the networks are built out of their jurisdiction.

Some networks have also stepped in to find those who are in violation of applicable laws, though it seems as if the criminals are several steps ahead of the proper authorities. An example of this can be seen in the fact that popular P2P networks such as iMesh and Morpheus have developed software so that their users can share undetected by those monitoring for illegal activity. This has made the job increasingly more challenging for those charged with enforcing 1998's Digital Millennium Copyright Act, enabling authorities to go after not the developers of the networks, but those using it, regardless of where they might live.

V: Crossing to the Other Side: In Defense of P2Ps
Most citizens in the majority of societies agree that taking something without the proper compensation is very wrong, just as much as the vast majority find child pornography to be revolting. On that same token, a lot of these same people are fighting, in and out of the courts, to disconnect citizens from such "stolen" goods. However, that's just one side. On the other side, as highlighted in an article pointing out that the MGM vs. Grokster decision was a win for file sharers, are those defending P2P networks as a good thing, which can also serve as a tool for bands and film makers to garner unprecedented exposure (MGM vs. Grokster Win For File Sharers). Accordingly, this is why some P2P networks like Kazaa still do exist.

In fact, on their website, Sharman Networks, the developers of Kazaa (www.kazaa.com), state that they do not condone nor promote the illegal sharing of copyrighted goods without the consent of the copyright holder. The website also has made a valiant attempt to eliminate such offending files from their servers and even now charge users for some songs.

People on this side argue that in the case of why some P2P networks are not shut down is because they don't openly promote piracy. On the other hand, the reason why Grokster was shut down, and attempts are being made to shut down Sweden's the Pirate Bay, is because they do, indeed, openly encourage their users to engage in illegal activity.

VI: Domestic and Foreign efforts to Curtail the Problem
As mentioned prior, in looking to alleviate most of the problem with internet piracy over P2P networks, the governments' hands are tied in the bulk of cases. Most of what has happened has been done domestically, as with the MGM vs. Grokster in 2005, the closing of Napster in 2001 and several lawsuits to bring down Sharman Networks' Kazaa which, at one point, was the most popular P2P application on Earth.

Also as mentioned prior, P2P file sharing is huge in Asia, making up for the good majority of ISP activity in countries such as China (Risk Management). Still, the country has at least stepped in to make such efforts to crack down on the problem. In the first half of 2006, the ever-restrictive Chinese Government banned all file sharing over the internet without the direct consent of the copyright holder. The ban also applies to "the production, import and supply of devices that can evade or breach copyright protection" (Digital Media Asia). On the other hand, when a lot of one service's users are out of their power, exactly what can they do?

And in the last few years, some services have been sought out and shut down for their out and out practices of internet piracy. Such was the case, for instance, in 2003 when Puretones, a Spanish service, was brought down by the RIAA. The site charged $3.99 for eight hours or $24.99 per month access to unlimited downloads without any restrictions on playing or copying obtained songs. The main reason the site was shut down was because no one ever received authorization from the copyright holders, namely because the developers claimed "Spanish copyright law allowed it to make its own agreement to pay musicians and artists with the Spanish Association of Artists, Performers and Players and Association of Authors and Editors (Mitchell, 2003). Of course, when someone is downloading the likes of The Beatles, U2, Elvis Presley and others transferred from American ISPs, such artists don't have Spanish protection.

According to the MPAA, the film industries' losses due to such internet piracy total upwards of $2.3 million per year and counting. A lot of this is done in countries such as Japan, China, Hong Kong, the Philippines and Korea. It is obvious that the Asian governments recognize piracy, especially over peer to peer networks, to be an illegal yet thriving industry and are not playing dumb in that regard. And some have made valiant attempts to do so. Most notably, in 2004, Japanese government officials aided in the apprehension of developers who not only encouraged pirates to do business over their P2P network, but who also specifically designed the network to shield its users and distributors from detection of authorities (Music Industry's War On Piracy). Other than that, despite several instances of counterfeit DVDs seized and users engaging in the trade of such illegal goods being arrested, virtually no efforts have been made to nix the international pirated media trade conducted out of the guise of the law due to border technicalities.

VII: No Quick Fix; My Solution to this Problem
In a previous class I finished on my quest to receive my degree, I clearly remember a professor, in reference to efforts to shield children from pornography and the advent of new technologies, mentioning that virtually every technological innovation, legitimate pay service, or technological industry got its start pushing something dirty.

Many of the innovations now available on the internet find itself on the same wavelength as things such as cable television, pay-per-view and phone services such as Dial-a-Prayer, Crossword Help and Dial-A-Joke, all of which begat with ways to obtain pornography, while keeping it out of the hands of children. On that token, we can safely say that services like iTunes, which allow us to purchase our favorite movies, shows and albums from absolutely any genre, all without that pesky trip out to the mall or department store, got their start from a similarly dirty business; pirating via P2P networks.

The major difference, however, is that the former problem with children getting their hands on pornography, while nowhere near contained, has been governed effectively. After all, while pornography is still legal, it is heavily regulated and those stepping out of bounds are promptly hunted down and shut down. Such problems with piracy are also no where near contained.

It is a good thing that countries such as Korea, Japan, China and the Philippines recognize that they have a major issue on their hands. On the other hand, it is not clear whether or not they realize that while they have made efforts to nix the problem in the past, most of the users are either out of their jurisdiction or are undetectable.

Being that the issue across the board is that users from one country are getting away with theft time and again, because their server isn't hosted by their country, this ought to be the first step to tackling the problem. I propose that all of the countries, developing and otherwise, which have consistent access to the internet and P2P networks, have hearings, write laws and put together a collective agreement to cooperate with each other and kill piracy on their soil. For example, if American and Canadian users are stealing movies and receiving and/or trading them with pirates in China or Japan, such an agreement would give the United States or Canada the legal authorization to come in and assist in the arrest of all guilty parties on all turfs. While all kinks would need to be worked out, when such an agreement is reached, the problem with one country's hands being tied would be no more.

The other major issue I found while searching via LexisNexis and other special search engines was that a lot of people are getting away with the illegal practice because the user is "sharing" over a network allowing them to do it undetectable by authorities. My solution to this problem came to me after watching many episodes of Dateline's To Catch a Predator and reading up on the efforts of undercover groups such as Perverted Justice in catching pedophiles attempting to meet children for sex. The way to catch someone red-handed is not to come in as a cop. Just like how we catch pedophiles, identity thieves and drug dealers here in America, we should set up similar operations for catching pirates worldwide. This would also be part of the international agreements outlined previously. Each undercover agent would be fully educated one way or another, on the ins and outs of how such business is conducted and would be fully competent in all the tricks of the "trade." Then, say, when an undercover agent breaks in and finds cold, hard evidence of no-detection devices, the creators can not only be busted for piracy, but also for blatantly eluding authorities. Now, if only we could get Chris Hansen and the Dateline team to take up the investigation and televise it. And if a particular country disagrees with the undercover agent clause, we would threaten them, putting the cut off of their American electronics, entertainment, news and information on the table.

VIII: That's A Wrap: Conclusion
The major problem with the international piracy epidemic is not the illegal practice itself, but rather the fact that people get away with it as a result of all of every country's legalese and border-crossing technicalities. However, with the right efforts, record label and film company profits may soar and the ability to keep the entertainment business thriving could see a significant increase. The issue has been existent for much too long. However, with the right undercover tactics, we quite possibly, can finally beat them at their own game and sink the pirate ship once and for all.

Works Cited

Dutta, Sourav. (May 2006). China Gets Tough on Copyright Laws. Retrieved July 3, 2007 from http://www.digitalmediaasia.com/default.asp?ArticleID=15758.

Gil, P. (2007). The Grokster Case: a Win for File Sharers! Retrieved June 30, 2007 from http://netforbeginners.about.com/od/p2legalitiesandethics/a/grokster.htm

Mitchell, P. (July 2003). Spanish cut-price must web site forced to close. Retrieved July 2, 2007 from http://www.wsws.org/articles/2003/jul2003/file-j26_prn.shtml.

Taylor, R., Motion Picture Association of America. (September 22, 2005). Peer to Peer Piracy to the House Judiciary. Capitol Hill Hearing Testimony. [Retrieved from LexisNexis].

Wade, J. (2004). The Music Industry's War on Piracy. Risk Management, 51(2). Page 10.

Asia Piracy Fact Sheet; Asia-Pacific Region. Retrieved July 1, 2007 from http://www.mpaa.org/AsiaPacificPiracyFactSheet.pdf.

(September 5, 2005). Australian Court rules music file-swapping software infringes copyright. [Retrieved from LexisNexis].

(October 19, 2005). Peer-to-peer services take up over 70% of global bandwidth. [Retrieved from LexisNexis].

(May 2, 2006). No Music to Ears Illegal Downloading Business in India is Alive and Kicking. [Retrieved from LexisNexis].

(December 2005). Peer-to-Peer: The Problem is the Solution. [Retrieved from LexisNexis].

New Swedish Law Closes the Pirate Bay and Prohibits Linux Distributions from 1^st July 2005. Retrieved July 3, 2007 from http://linuxreviews.org/news/2005/02/10_way_to_go_sweeden/.

(April 2003). Gloom Settles on Global CD Sales. Retrieved July 3, 2007 from http://news.bbc.co.uk/1/hi/entertainment/music/2931589.stm.

Legal Disclaimer. Retrieved July 16, 2007 from http://www.kazaa.com.