Combatting Online Privacy: a Case Study on Popcorn Time and Revising Available Remedies to Copyright Holders

• Publication year: 2016

Combatting Online Privacy: A Case Study on Popcorn Time and Revising Available Remedies to Copyright Holders

Zachary Charles Fritts Landy

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COMBATTING ONLINE PIRACY: A CASE STUDY ON POPCORN TIME AND REVISING AVAILABLE REMEDIES TO COPYRIGHT HOLDERS

Zachary Charles Fritts Landy^*

Table of Contents

I. Introduction..........................................................................................222

II. Background.............................................................................................224

A. UNIQUE TECHNOLOGICAL ISSUES PRESENTED.............................224
B. APPLICABLE COPYRIGHT LAW...........................................................228

1. Statutes.............................................................................................228
2. MGM v. Grokster........................................................................229

C. ENGLAND'S INJUNCTION DIRECTED AT INTERNET SERVICE PROVIDERS............................................................................................230

III. Analysis......................................................................................................231

A. HISTORY AND EFFECTIVENESS OF WEBSITE-BLOCKING ORDERS..................................................................................................232
B. ALTERNATIVE SOLUTIONS TO DETER DISSEMINATION OF SOFTWARE.............................................................................................233
C. PROPOSED SOLUTION.........................................................................235

IV. Conclusion...............................................................................................235

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I. Introduction

"Netflix for pirates" is the moniker that has been given to Popcorn Time, an open-source, peer-to-peer file sharing application released in 2014.¹ With reportedly millions of users and an estimated 100,000 downloads per day, the service poses a significant threat to Tinseltown's continued success.² According to the Motion Picture Association of America (MPAA), domestic box office sales decreased by 5% from 2013 to 2014.³ There are likely a variety of factors for this decline, like people choosing to rent from RedBox or watch Netflix and it may not be a big concern because these box office figures increased from 2011 to 2012 and from 2012 to 2013.⁴ An increase in piracy is always a concern, however.

In 2013, a study from Columbia University estimated that 45% of American citizens actively pirate movies.⁵ That number seems alarmingly high, and that was well before the release of Popcorn Time, which undoubtedly makes piracy easier and available to a wider audience than ever before. In 2005, the MPAA estimated that piracy cost the United States film industry approximately $6.1 billion annually.⁶ Another study from 2005 estimated that a 10% decrease in piracy worldwide would add over 1 million jobs, $64 billion in taxes, and $400 billion in economic growth over a four-year period.⁷

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Recently, copyright holders for several movies decided they had enough of the piracy, at least from Popcorn Time users. Rather than standing by and allowing these "pirates" to watch their movies free of charge, copyright holders are taking a stand in courts. The copyright holder of Adam Sandler's comedy, The Cobbler, filed suit against eleven Popcorn Time users in Oregon, in August of 2015.⁸ This has not turned out to be an isolated incident as other copyright holders have followed the same course of action, choosing to file lawsuits against users, en masse.⁹

There is a reason that the law makes it a crime to supply and consume illegal drugs. This same theory can be applied to copyright infringement. If an action is to be quelled, then it must be attacked from the head and the tail. In this instance, the developers, or suppliers, are the head, while the end-users are the tail. Courts have previously recognized the need to hold the head accountable under copyright law, but the head is not always identifiable.¹⁰ At least, the Popcorn Time head is not.

The unique technological properties of Popcorn Time leave copyright holders with relatively few options for remedies, which explains why they have undertaken the inefficient approach of suing individual users. One of Popcorn Time's unique features is that it is open-source software.¹¹ This affords many people the opportunity to contribute to the software from anywhere around the world. Effectively, the open-source feature means a developer can remain anonymous for as long as he chooses.

Battling piracy is critical to maintain the value of copyrights. Without legitimately protected copyrights, creators have less incentives to create. If creators perceive that they stand to make less money from a certain venture, then they will undoubtedly look for more lucrative alternatives. In another sector of the entertainment industry, a similar battle can be seen with musical artists taking on streaming services. Taylor Swift has completely withdrawn her music from the streaming service Spotify because she "doesn't think music streaming services appropriately value her art."¹² Similarly, movies and

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television shows that are streamed on the Popcorn Time application are significantly devalued by users. However, copyright holders do not have the ability to remove their copyrighted work from the service.

In addition to the importance of protecting copyrights to maintain entertainment as a viable and worthwhile career path, it is morally repugnant to pirate copyrighted works. Piracy is no different than stealing. It is analogous to walking into a brick and mortar store, taking the movie or television series off the shelf, and walking out the door. Popcorn Time facilitates this activity in a way that looks innocent. The user interface is easy to use and reminiscent of Netflix, which is why it earned its nickname. Regardless of appearance, the acts that the software and its developers encourage should have serious legal consequences if copyrights are to be appropriately protected.

This Note concentrates on the inefficiency inherent in the current approach forced on the copyright holders of these movies and television shows, and possible solutions to combat this unique, ever-changing software.

II. Background

In order to fully understand the legal issues involved with Popcorn Time, it is necessary to have a general understanding of the software's unique technological facets.

A. UNIQUE TECHNOLOGICAL ISSUES PRESENTED

There are three technological issues that make Popcorn Time unique from other streaming services: it is open source, it uses torrent streaming to download content, and it advises its users to obtain a private virtual network.

By September of 2015, the most popular version of Popcorn Time had an estimated 283 different developers work on it.¹³ And yes, there are multiple versions. The choice to design Popcorn Time as open-source software was a strategic one by the project's lead designers, who hails from Argentina.¹⁴ This choice has allowed a plethora of designers from around the world to get involved and spawn multiple versions of the software.¹⁵ It has also enabled these developers to largely remain anonymous.¹⁶

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Open source software is loosely defined as "software with source code that anyone can inspect, modify, and enhance."¹⁷ "Source code" is what makes the program run, in essence its operating protocol.¹⁸ The Open Source Initiative offers a more detailed list of criteria.¹⁹ Those important to the legal analysis of Popcorn time are free redistribution, derived works, and other license requirements.²⁰ Free redistribution means that "[t]he license shall not require a royalty or other fee for such sale."²¹ The license must also "allow modifications and derived works . . . to be distributed under the same terms as the license of the original software."²² The Open Source Initiative also requires that the license not be specific to a product and it must not restrict other software.²³

While Popcorn Time is generally referred to as open source software, at least one of its offspring was licensed under the GNU general public license from the Free Software Foundation.²⁴ Open source and free software are very similar. Free software users have "the freedom to run, copy, distribute, study, change and improve the software."²⁵

If software is only modifiable by one person, team, or organization it is referred to as "closed source," or "proprietary software."²⁶ The original authors of the source code are the only individuals authorized to alter it, which can restrict collaboration and innovation in designing the software. This is one reason, of many, that developers and contributors sometimes prefer to use open source software.²⁷

Once the original developers of open source, or free, software have released the source code, future programmers do not need their permission to modify the code.²⁸ On one hand, this is beneficial because any problems with the code can be fixed quickly.²⁹ On the other hand, it creates an issue when these programmers are engaged in illegal activity, such as promoting or contributing to copyright infringement. There is no easy way to track who has altered the

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code, and another requirement of the Open Source Initiative is that the license cannot discriminate against anyone, even those with ill designs.³⁰

To release software as open source, or any other kind, one must obtain a license. As previously mentioned, at least one version of the Popcorn Time software is licensed under a GNU general public license from the Free Software Foundation. Releasing software under such a license requires very little in the way of documentation. The Free Software Foundation recommends only that the licensee provide a copyright notice in the release and a copy of its license.³¹ That is all. This license may be used by anyone.³²

This discussion of open source software was...