Piracy and illegal downloading in the Internet age have been on the forefront of the intellectual property community's mind since the early 2000s. Websites such as The Pirate Bay are often labeled as being leaders in copyright infringement, giving users the ability to illegally download thousands of files. However, there are both jurisdictional and extradition issues with prosecuting the founders of these websites, because The Pirate Bay and many others like it are often based in other countries. Recently, the Stop Online Piracy Act and PROTECT IP Act have stirred up controversy, with many alleging that their international reach went too far. This Note looks at how (and if) the United States can hold the founders of The Pirate Bay personally and criminally liable in the United States for their actions in facilitating the copyright infringement of others.
TABLE OF CONTENTS I. INTRODUCTION A. The Proliferation of Piracy and Illegal Downloading B. How This Affects American Companies and the American Economy II. THE PIRATE BAY A. Issues with Prosecuting the Founders of The Pirate Bay in the United States B. Attempts to Prosecute the Founders of The Pirate Bay C. The Influence of The Pirate Bay III. THE CRIMINALIZATION OF COPYRIGHT INFRINGEMENT A. The Copyright Act B. The Digital Millennium Copyright Act of 1998 IV. TURNING THE FOCUS TO INTERNATIONAL COPYRIGHT INFRINGEMENT A. The PRO IP Act B. International Treaties and Instruments That Discuss Criminal Copyright Infringement 1. The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement) 2. The North American Free Trade Agreement (NAFTA) 3. Proposed Treaties Not Yet in Force V. THE STOP ONLINE PIRACY ACT AND THE PROTECT IP ACT A. The Stop Online Piracy Act B. The PROTECT IP ACT (PIPA) C. Media and Political Reactions to SOPA and PIPA. VI. LEGAL ANALYSIS: DOES CONGRESS HAVE THE AUTHORITY TO PASS THESE INTERNATIONAL SPECIFIC BILLS? VII. SOLUTION A. Fixing the Stop Online Piracy Act and the PROTECT IP Act 1. Venue and Jurisdiction Issues 2. Extradition Issues B. Returning to the Arguments Against Criminalization 1. Reasons for Not Criminalizing Copyright Infringement a. Copyrights Are Not Real Property and Do Not Provide the Author with the Same Rights b. The Rationale for Criminalization of Other Crimes Does Not Fit into the Context of Copyright c. The Punishment Does Not Fit the Crime d. Civil Remedies Are Adequate 2. Forgoing Prosecution of International Infringers Does Not Violate International Treaties and Agreements VIII. CONCLUSION I. INTRODUCTION
Every day, nearly 100 million different Internet Protocol (IP) addresses throughout the world are involved with illegal downloads of movies, music, and television shows. (1) To put this number in perspective, that would be roughly the equivalent of every single person in the top four most populated states--California, Texas, New York, and Florida--engaging in at least one instance of illegal downloading on his or her computer every single day. (2) The prolific nature of the illegal download culture was also evidenced by the much anticipated and dramatized release of Seth Rogen and James Franco's movie, The Interview, which resulted in over 750,000 illegal downloads within a twenty hour period alone when it was released on December 25, 2014. (3) Yet another prime example occurred in February 2016, when Kanye West released his album The Life of Pablo. Kanye stated that his album "will never never never be on Apple. And it will never be for sale.... You can only get it on Tidal." (4) Internet users were outraged that Kanye only made his album available on Tidal--a music streaming service of questionable success (5)--and they reacted by illegally downloading The Life of Pablo over 500,000 times within twenty-four hours of the album's release. (6)
While the United States has created civil remedies to allow copyright holders to sue those who illegally download or share their copyrighted material, the trickier issue is the criminalization of copyright infringement. (7) Additionally, the criminal prosecution of copyright infringers becomes more difficult when much of the illegal downloading and sharing occurs overseas on websites that do not have servers located within the United States; the best example of this is the popular torrent indexing and tracking site The Pirate Bay. (8) When the website is based in another country, as The Pirate Bay is based in Sweden, conferring jurisdiction becomes tricky because usually the crime is prosecuted where it occurred (9)---but where did this crime occur? America has long been wanting to prosecute the founders and registrants of these international websites personally. In order to do so, two bills were introduced in 2011 that caused an uproar: the Stop Online Piracy Act and the PROTECT Intellectual Property Act. (10) Both the American people as well as American-based websites expressed both outrage and support for these bills; (11) ultimately, they did not pass. (12)
Part I of this Note will discuss the widespread problem of online piracy, illegal downloading, and copyright infringement. It will also discuss how this problem affects Americans and the United States' economy, along with the trouble of prosecuting these owners of these international infringing websites. Part II will give an overview of The Pirate Bay. Part III will discuss the criminalization of copyright infringement, while Part IV will turn the discussion toward the international realm. Part V details SOPA, PIPA, and the outrage with which they were met. Part VI will analyze these two bills from a legal perspective. Finally, Part VII will propose that the United States decriminalize copyright infringement and will also explain why this solution does not violate U.S. international treaty obligations.
The Proliferation of Piracy and Illegal Downloading
The group of people who engage in the piracy of movies, music, and television shows is by no means a small group. (13) The American Assembly at Columbia University found that nearly one half of all Americans have copied, shared, or downloaded online files for free. (14) Within the age group of 18-29, this percentage jumps to about 70 percent. (15) While not all of this copying and sharing occurs online (e.g., the copying of a friend's CD,16) illegal downloading does not seem to be slowing down. (17) In 2013, illegal downloads of television shows increased by 10 percent from 2012. (18) Perhaps most shockingly, the numbers of illegal downloads of some of the most pirated television shows exceeded the estimated U.S. viewership of these shows. (19) For example, in 2013, Game of Thrones, a popular American television show, was downloaded 5.9 million times; this exceeds the estimated U.S. viewership of 5.5 million people by nearly half a million. (20) This is a 37 percent increase in downloads of Game of Thrones since 2012. (21)
How This Affects American Companies and the American Economy
The majority of illegally downloaded content belongs to American artists and producers, which means that sales, distribution, and potential income related to these copyrights are being affected. (22) Since the once wildly popular Napster came onto the scene in 1999, music sales in the United States have dropped by over 7 billion dollars, from 14.6 billion before 1999, to 6.97 billion in 2014. (23) This effect on the music industry in the United States existed even after copyright holders sued Napster in 2001, when Napster was found liable for copyright infringement and ultimately forced into a subscription model instead of allowing free, illegal downloading. (24)
Furthermore, because the total number of illegal downloads of some files, such as the television show Game of Thrones, actually exceeds the number of estimated viewers in the United States, (25) it is safe to assume that many of these illegal downloads are completed by people overseas. (26) While this trend's actual effect on American copyright holders may be debatable, since these foreign users may not have access to a legal or legitimate means of accessing these files--and therefore are not pirating in lieu of watching legally--American copyright holders' rights are still being affected by having their products being made available online for free.
THE PIRATE BAY
While there are numerous websites dedicated to helping Internet users find and access free files, The Pirate Bay is one of the largest and most well-known. It is a peer-to-peer sharing platform launched in 2003 by four Swedish men, Gottfrid Svartholm Warg, Peter Sunde, Fredrik Neij, and Carl Lundstrom, and is used by people from all over the world. (27) The Pirate Bay exists under the URL www.thepiratebay.se because it is a Swedish website, and its servers are also in Sweden.
The Pirate Bay is a BitTorrent indexing and tracking website. (28) BitTorrent is a protocol that allows for easy sharing of large files online, which means that none of the information downloaded by users is directly located on The Pirate Bay--The Pirate Bay simply tells users where to find the files to download. (29) To download the BitTorrent, users must have a torrent downloader such as uTorrent. (30) The torrent contains the audio or video file; the torrent itself is not what is copyrighted. What is copyrighted is the information the torrent transmits--the audio files, movies, and television shows. (31)
Issues with Prosecuting the Founders of The Pirate Bay in the United States
In a typical criminal case in the United States, the defendant is prosecuted in the district in which the crime was committed. (32) When this crime occurs over the Internet, however, this district determination gets more difficult. Furthermore, when this crime occurs on a foreign website not located within the United States, this determination is arguably infinitely more difficult.
For example, if the government wanted to prosecute the registrants or founders of a...