Saving online copyright: Virtual markets need real intervention

• Published date: 01 November 2019
• DOI: http://doi.org/10.1111/jwip.12131
• Author: Adam R. Tanielian,Pakinee Kampan
• Date: 01 November 2019

© 2019 The Authors. The Journal of World Intellectual Property © 2019 John Wiley & Sons Ltd

J World Intellect Prop. 2019;22:375–395. wileyonlinelibrary.com/journal/jwip

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DOI: 10.1111/jwip.12131

ORIGINAL ARTICLE

Saving online copyright: Virtual markets need

real intervention

Adam R. Tanielian

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Pakinee Kampan

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Preparatory Year Program, King Faisal

University, Mubarraz, Saudi Arabia

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College of Law, Chulalongkorn University,

Bangkok, Thailand

Correspondence

Adam R. Tanielian, King Faisal University,

10396 Prince Abullah bin Jalawi Street,

Mubarraz 31982, Saudi Arabia.

Email: adam.tanielian@gmail.com

Abstract

The internet is a treasure chest of infringing or “pirated”

entertainment media, which viewers from around the world

access, copy, and share with relative ease. Data and

qualitative reviews suggest infringement is ubiquitous in

the streaming and downloading domain. The current

approach to copyright enforcement places undue burdens

on copyright owners who cannot economically advance

claims against millions of individual users. Poorly con-

structed copyright laws and misguided Court decisions have

left rights‐holders with too few remedies against commercial

entities involved in the storage, retrieval, transmission,

access, and streaming of their works. A five‐year exploratory

and observational study were conducted to discover facts

about online pirate media, how services function, how

companies make money, and how they skirt around laws

prohibiting unauthorized commercial exploitation of copy-

right. Sites discovered had multimillion‐dollar valuations and

annual revenues, mostly derived from third‐party advertise-

ments. The study found numerous deficiencies in copyright

legislation and judicial interpretation that enable massive

online infringement to continue. Recommendations include

statutory and regulatory amendments, judicial reversals,

reconstruction of the law, and development of a binding,

compulsory mechanism similar to Internet Corporation for

Assigned Names and Numbers’domain name trademark

dispute resolution system.

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KEYWORDS

copyright infringement, cyberlocker, DMCA, internet, P2P

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INTRODUCTION

People around the world are spending about as much time using the internet as they are watching TV, which

correlates to increased consumption of copyright‐infringing or “pirated”video content. Even as Netflix and other

pay‐to‐watch services increase subscriptions and grow their share of online traffic, the volume of traffic generated

by pirated media sites and networks has grown (Bode, 2018). Private, casual viewers have a handful of routes to

pirated media access online. For prerecorded media, viewers can use peer‐to‐peer (P2P) or torrent networks,

direct‐download cyberlockers, streaming cyberlockers, or they can download and run software that ties together

search, download, streaming, and playback functions. For example, Kodi, Plex, Emby, and Stremio, either in their

original state or with plugins, enable users to locate and view millions of titles. Live media is also available, either via

live‐streaming cyberlockers or software.

Cyberlockers are all fairly straightforward. Hosting companies offer online file storage for individual subscribers

to upload. In the case of live‐stream, users with special software rip content from paid‐services and paste a

reproduction on the live‐streaming pirate cyberlocker. Streaming cyberlockers are much like YouTube in that

content is uploaded by users and the host provides video playback software fixed into the webpage so people can

stream videos. Direct‐download cyberlockers merely allow subscribers to upload and download files which viewers

play with software like Windows Media Player or QuickTime. Some streaming cyberlockers have download

functions available for users. Browser plugins or web applications can also facilitate download of media on

streaming cyberlockers. Kodi software and others like it give users access to all the same content through one

program. These media software applications do not offer an entirely novel service; rather, they make the search,

retrieval, and viewing experience more seamless and convenient for some users who do not want to navigate

through cyberlocker directories via web browsers.

P2P networks are marginally more serpentine than cyberlockers. Torrents—the current version of P2P—require

users to install software onto their PCs (e.g., BitTorrent, BitLord, Tribler, rTorrent, µTorrent, and qBittorrent).

Users then surf the internet to find and download a torrent file associated with a specific movie or episode of a TV

show, or entire season of a series. Titles frequently have multiple files for users to choose from—some offering

different degrees of quality, film editions or cuts, embedded subtitles or voiceovers, or other variations. Torrent

software opens the torrent file allowing users to join a “swarm”of other users who all simultaneously upload and

download small parts of the whole video file. When a whole file is finished downloading, a user may continue

uploading to (or “seeding”) the swarm or cease transmission of the file while retaining a complete copy on their hard

drive. The U.S. District Court provided a thorough explanation of the torrenting process in Hard Drive Productions v.

Does 1–188 (2011, at 1162).

Numerous issues affect user choice in video retrieval method, not the least important of which is legal

disposition toward providers and users. In Stichting Brein v. Ziggo (2017, at 47), the Court of Justice of the European

Union (CJEU) held “the making available and management of an online sharing platform, such as [torrent services],

constitutes a communication to the public”under the EU Directive on copyright (European Parliament, 2001). The

CJEU banned various media players in Stichting Brein v. Wullems (2017), holding the “sale of a media player

preloaded with add‐ons that provide users direct access to streaming pirated videos likewise constitutes a

communication to the public.”Convenience, efficiency, and portability also affect user preferences. Whereas

committed pirates are attracted to P2P services that offer more download options, casual pirates tend to prefer the

single‐view option at streaming sites. Irdeto (2018) found internet users increasingly prefer mobile devices to view

those streaming sites. Between 2010 and 2017, average daily internet viewing time grew to within 30 min of TV

viewing time. In the same period, the global share of internet usage for phones as compared with PCs rose from

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TANIELIAN AND KAMPAN