commentary For nearly a decade, major music and film companies have lamented the loss of revenue and jobs that they blame on illegal file sharing. During that time they have lobbied lawmakers and enforcement agencies for antipiracy help.
But after reading reports from the FBI and Department of Justice about efforts to protect the nation's intellectual property, I was stunned to find so few cases involving online file sharing. Among the "significant" prosecutions the DOJ listed in 2010, only one involved the illegal distribution of digital media over the Web. In April, the DOJ won a conviction against the operator of USAwarez.com, a site that the feds claim used the Web to distribute pirated movies, games, and software. The man was sentenced to more than two years in jail.
Contrast this one conviction with the scores of sites that stream pirated movies and the millions of people around the world who use peer-to-peer networks to access unauthorized copies of films, TV shows, e-books, and games. Media companies say piracy costs the U.S. economy billions and kills jobs, harming actors and musicians as well as caterers and truck drivers. Entertainment companies spend millions on lobbying efforts and all the government can muster is one "significant' digital-media prosecution. A DOJ representative did not respond to an interview request.
The DOJ's 28-page report raises all kinds of questions for me.
Is the commercial pirating of films and music online harder to prosecute? Are media companies hurt by this as much as they say? (The credibility of the studies that film and music sectors have cited on the impacts of piracy were called into question by the U.S. Government Accountability Office last year.) How much support in Washington do entertainment companies possess?
Smash and grab
The reports from the DOJ and FBI are part of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO IP), signed into law by former President George Bush. As part of the act, civil and criminal penalties for copyright and trademark infringement were increased and a new office within the government's executive branch was established. The act also requires the DOJ to submit a report on its PRO IP investigative and prosecution efforts.
President Barack Obama has promised to step up efforts into protecting intellectual property. Last June, U.S. Vice President Joe Biden told reporters that file sharing wasn't any different than stealing physical goods. "Piracy is theft," Biden said. "Clean and simple, it's smash and grab. It ain't no different than smashing a window at Tiffany's and grabbing [merchandise]."
That's tough talk. Pinpointing government action on this issue is more difficult.
A bill introduced in the Senate last year called the Combating Online Infringement and Counterfeits Act would have given the government sweeping power to shut down U.S.-based pirate sites as well as the authority to order Internet service providers to cut off access to similar sites overseas. Opponents called the legislation censorship. The bill never got out of the Senate and its future is unclear.
As for the DOJ, it appears the FBI and other agencies under its umbrella are making plenty of arrests for counterfeiting and copyright infringement. But the kind of cases the department pursues speaks volumes.
In its report, the DOJ provides a list of its priorities. No. 1 is protecting the health and safety of U.S. citizens. The DOJ reported that it successfully prosecuted people involved in the sale of fake cancer drugs, phony airplane parts, and dubious pharmaceuticals. Who can argue with that? Next on the DOJ's list was taking down organized criminal networks, followed by the prosecution of large scale commercial counterfeiting. Last was protecting the country's trade secrets and battling economic espionage.
Under a heading titled "Large-scale counterfeiting and online piracy" the DOJ had little to say about digital music or movies.
A man was busted for selling counterfeit slot machines, another for dealing in bogus Microsoft software. One was sentenced to jail for selling "popular business, engineering and graphic design software." There were people arrested for selling counterfeit sports jerseys and women's handbags. There was even a prosecution of a woman and man from Turlock, Calif., for selling pirated film discs via the Web. The only other action involving digital media in the DOJ's report besides the USAwarez prosecution was a seizure last June of nine alleged pirate site domain names as part of a joint operation by the U.S. Immigration and Customs Enforcement (ICE) agency.
It should be noted that ICE is part of the U.S. Department of Homeland Security (DHS) and not the DOJ. In November, ICE oversaw a seizure of an additional 82 site domains, some of which were distributing digital music and films online. There's no mention of arrests in either ICE operation. It appears pirated movies, music, and games don't rate as high as the fake Gucci bags.
Because many of the people allegedly pirating U.S. intellectual property operate overseas, the DOJ's task isn't simple. But in the report, the DOJ says it has a team consisting of 40 attorneys specializing in computer crime and Internet protocal law that "places a high priority on fostering international cooperation and coordination in its IP enforcement efforts." The group participated in an international investigation that brought down a Chinese seller of counterfeit Cisco networking hardware. So, the DOJ's long arm extends into other countries, but apparently not to protect media.
The music and film industries can point to some successes in their antipiracy efforts over the past year. But for all the talk about the political might of big entertainment companies, when it comes to protecting copyright, it appears more and more that they're on their own.