Perspective: It's about piracy, not privacy

Just in time for the theatrical release of Harry Potter and the Order of the Phoenix, a judge has held that an Internet-based service may not offer its users an invisibility cloak.

The court ordered TorrentSpy to preserve server log data, and make it available to the Motion Picture Association of America as part of the ongoing litigation between them.

TorrentSpy objected to the initial request for the preservation and production of the server logs on a number of grounds. Its lawyers claimed that preserving the data would be an undue burden requiring great technical resources and significant funds.

But the judge was having none of it. She accused the defense either of laboring under a lack of knowledge and expertise or, even worse, a lack of candor. She found that the defense had miscalculated the amount of data that would be stored as a result of the order. The judge further noted that any costs incurred would be significantly lower than estimated.

Contrary to popular belief, digital file sharing has a direct impact on independent artists as well as major label artists.

TorrentSpy tried to stiff-arm the plaintiff's motion, offering policy and legal arguments, ranging from unrelated statutes to the First Amendment. Again, the judge was unmoved. She held that the defendant's privacy policy did not insulate it from having to produce the requested materials in a discovery proceeding.

Finally, the defense claimed that proper jurisdiction resided in the Netherlands, where TorrentSpy located its primary server, and so that nation's laws governing personal data protection should apply. But the judge rejected the argument because the defendants are residents of--and maintain servers in--the United States.

While Harry Potter may need an invisibility cloak to fight evil, the average Internet user does not need a cloak to use the Internet. The anonymity TorrentSpy has offered its users facilitates the mass distribution of content without permission or compensation to the owners of the copyrights in those works.

Since the Napster 1.0 days, people who have chosen to transfer creative content unlawfully over the Internet have used a litany of excuses to justify their behavior. The most popular excuse seems to be that only large corporations suffer from the lost sales. Recently, file sharers have claimed that they are opinion makers and style influencers.

Contrary to popular belief, digital file sharing has a direct impact on independent artists as well as major label artists. As an example, an influential artist in a niche music genre has established that the bulk of his catalog is available on torrent streams. Significantly, he has discovered his digital-only release on the streams. Though he continues to release well-received albums, he is not able to tour so record sales support his music career.

To his surprise, one infringer actually included an e-mail address in his torrent posting of the digital-only album. The artist contacted the poster to request that the album be removed, and nothing happened. The artist resubmitted the request. Responding with a proclamation that he was the artist's biggest fan and a sincere apology, the infringer removed the album.

Not content to apologize and move on, the infringer provided arguments why the artist was wrong not to have his digital-only release available for file sharing for free, including the lack of radio air play available for the artist. While the poster acknowledged in the response that his activity was illegal, he did not offer to compensate the artist for all the albums that had been transmitted through the torrent.

An invisibility cloak does more than just protect the identity of those who use the Internet for illegal or unlawful activity. It encourages individuals from taking responsibility for their actions. And in providing an invisibility cloak to its users, TorrentSpy has been converted from a passive participant to an active collaborator in their activities.

Biography
Nancy Prager, an intellectual property and corporate attorney, represents technology and entertainment clients on matters from privacy to music licensing. She maintains a blog at NancyPrager.wordpress.com and can be reached at [e-mail].

More Perspectives

[sismoc]

There is no such thing as piracy...

Just overfed lawyers and corporate bigwigs who bought laws to support their archaic business models!

[adlyb1]

This attitude...

...is exactly why the rest of us have to put up with strong arm actions by groups like the RIAA and MPAA.<br /><br />Is the entertainment industry broken? Most likely. Does that give you the right to take whatever you want? Absolutely not. This is the equivalent of taking a TV out of the shop window during a riot.<br /><br />I don't know which is worse, the greed of the entertainment industry trying to overturn Fair Use or the "If I don't get caught, I haven't broken any laws." attitude of many people today.<br /><br />Don't like those laws, then fix it the right way. Speak with your wallet and get involved in the legislative process. The Entertainment has lots of lobbyists, but if you think the average person can't influence givernment take a look at AARP. It started from nothing but the voice of the people. Idealistic? Maybe, but at least I am comfortable with my ethics.<br /><br />Remember, Napster didn't redefine the music industry, iTunes did.

[SeizeCTRL]

Not to mention

the practices that rape the consumer's wallets to help pay for their multi-million dollar mansions.

[mpotter28]

piracy

Doesn't piracy have to be commited on the "high seas"??

[gravityfactory]

TorrentSpy

TorrentSpy is done.

[JadedGamer]

It's about drug addicts, not artists

There is a limit to how much of the double stadards we can swallow. Why should consumers finance the cocaine consumption, hedonistic partying and those expensive lawyers who get the "artists" off to Betty Ford for three months instead of the jail term facing a "mortal" drug-user, drunk driver etc.? (Oh, poor widdle Paris Hilton, did you have to spend a few days behind bars?)<br /><br />(For the record I buy all my music, but only a tiny fraction of what I buy will ever see airtime on Empty Vee and the like...)

[ajhoughton]

Yeah, *right*

[sarcasm] Yes, because all musicians are drug-snorting, orgy-<br />going, lawyer-toting residents in huge mansions that nobody <br />else could ever afford [/sarcasm]<br /><br />Your position is just *ridiculous*. There are lots of musicians <br />(and copyright holders in other fields) who are being ripped off <br />by sites like Torrentspy, who make money through advertising <br />and who only draw most of the people to their sites by offering <br />details of illegal, unlicensed distribution of copyright holders' <br />work.<br /><br />There are plenty of musicians who live on the bread line. They <br />release music too, and they get ripped off just the same. The <br />same goes for almost any other industry.<br /><br />And perhaps you think making music is free? [sarcasm] After all, <br />everyone knows musical instruments cost absolutely nothing, <br />just like electricity, computer equipment, samplers, recording <br />equipment, recording media, time in recording studios, <br />promotion and marketing, etc... [/sarcasm]<br /><br />The fact is that people who justify illegal downloading of <br />copyrighted works are freeloading jerks, and the sooner that <br />governments realise that they have to criminalise this behaviour <br />in order to prevent the total collapse of copyright (and the <br />resulting imposition of DRM, loss of "fair use rights" and loss of <br />material eventually entering the public domain), the better for all <br />of us.

[ColdMast]

It has always been about drugs with the companys

It is how they can control the artist, "just finish this song and I'll give you another hit".<br /><br />poor Paris Hilton, it's all an act?<br /><a class="jive-link-external" href="http://www.youtube.com/watch?v=z3OOwtx8OKU" target="_newWindow">http://www.youtube.com/watch?v=z3OOwtx8OKU</a>

[cocos2000]

poor "artists"

Something tells me tickets and "ENTERTAINMENT" products are WAY TO EXPENSIVE. Young boy playes in Harry Potter picked up 40M check. Can anyone tell me what this little dumb guy do in his life? When did he used his brain? Invented anything? Of course not. Cut prices 10x and make "artists" earn 10x less money, also with behind the scenes industry. Enough rip offs. <br />Now let me go back to my easy job and try to pay my mortgage for next 25 years...

[mpotter28]

judge is wrong

Privacy is one of the main tenants of our civilization that is quickly disappearing . For some judge to make a ruling like this shows that the letter of the law is becoming more important than the spirit of the law in his eyes or maybe thats just the easy way out for a judge.<br /> Another point (which doesn't really excuse theft of owned property) is that you shouldn't be allowed to live of the proceeds of your own misdeeds. Both the org. that you mentioned are dirty. Its been shown in court on numerous occasions that they "cook the books" , They steal from the artists and they're very capable of perjury (you might be correct if you want to argue that they're just plan stupid). <br /> Your response is probably that these are misdeeds committed by individuals but I don;t really see how they're any different then the "MOB",hells angels, or for that matter the waffen ss (I'm not associating them with the Nazis but with the fact that an international court found that mere membership in the org. is illeagal)

[arluthier]

Hand over ALL logs?

Maybe I was reading it wrong, but are they implying that the court told them to hand over all the server logs? Not just Harry Potter related?<br /><br />What gets me is that when these logs are handed over everyone goes under the MPAA magnifying glass. Even the people NOT sharing illegal/copyright material. To me this is no different than a blanket wiretap... it is just the government giving the wiretap info to a commercial entity.

[Professor Cornbread]

Give them hard copies of the logs

They should print off the logs and present them to the judge a la 'Miracle on 34th Street' style by dumping the millions of sheets of paper right on the stand. Here's your logs. Now pay a million man hours to re-digitize them so they can be searched. Enjoy.

[tsi26]

i'll take privacy...thank you very much!

I'm not trying to justify the "stealing" of media files, but when the printing press was invented, did the governments try to protect the hand scribes! I think it's time for the media companies to figure out a new business model or die. I find it hard to believe that the void left by their demise wouldn't be filled!<br /><br />And...no I don't download any media files, but I also haven't bought any CD's or DVD's in years either. Screw you guys....I'm done supporting you cookie cutter crap anyways!

[ColdMast]

The needs of the many

Privacy should only be compromised if it puts someone at risk.<br /><br />dangerous offenders<br />pedophiles<br /><br />if you aren't going to euthanize them, or castrate &#38; frontal lobotomize them, then make the wear bright pink that glows in the dark, and give them a collar with a built-in taser, that can track and monitor their movements.

[Professor Cornbread]

Who is this 'artist'

You need to name the "influential artist in a niche music genre" so that your claim can be substantiated. Every major artist has their complete discography available, so why are this particular artist?s tours being affected? That doesn't make sense. File sharing is not likely hurting this "niche artist" more than any other artist. The artist is most likely personally responsible for their inability to sell out tours. In fact, how does a ?niche? artist go on tour anyway if they don?t have a huge fan base? Your claims seem fishy, so tell us who the artist is, otherwise it sounds like you made it up...

[ColdMast]

Quid pro Quo

more likely to go to the concert to repay the artist.<br /><br />Kelly Clarkson Couldn't Tour.<br /><br />no one wants to see a monkey dance.

[nitefallz]

Side Snippet

"Contrary to popular belief, digital file sharing has a direct impact on independent artists as well as major label artists."<br /><br />This is a load of crap. This statement is on the assumption that people pirating digital content would otherwise be purchasing the content if it were not available to them freely through piracy. This is a poor logical fallacy and there's no supporting evidence for this.

[Karl_J]

Disagree to some extent

I agree with the argument that not every shared file equates to a lost sale, but there is quite obviously *some* correlation to increased file-sharing and declining CD sales. There is a group of 4-5 guys in my office that used to buy CDs and DVDs regularly and now proudly talk about how they haven't bought anything in over five years. In their minds, they're 'sticking it to the man' and they make all the lame rationalizations that people are making on this larger thread here. And please nobody try to say that these 4-5 guys are the exception - these are typical 20-something, tech-savvy guys, very much in the NORM. The fact is, they're just cheap b@stards who see an opportunity to take something for free and don't give a hoot about any larger consequences out in the world... plain and simple. I hear a lot of noise about greedy corporations from people who can't recognize their own greed for what it is also.

[GrandpaN1947]

Punish the poor, ignore the rich

That's right. You don't see them stopping the public viewing of copy protected movies in Wal~Mart or other stores do you? Why not? Is it not against the terms of use? Where's the FBI and Interpol when it applies to rich people?

[rush6017]

Prager wants to protect her profit margin

This article presents the POV of an attorney who works in the music industry, so the conclusion comes as no surprise. Ms. Prager's pay dries up as the profits for the middlemen in the industry dry up -- without the labels she has to branch out and find other clients. <br /><br />Nancy Prager is so invested in the music industry as it existed in the past that she suggests that people should not be able to use the internet anonymously because that allows for piracy. <br /><br />Using the internet anonymously has always been important to everyone who goes online. Now the recording industry suggests that shouldn't be allowed because it cuts into their profits???<br /><br />Why would anyone even listen to Nacy Prager?

[247mark]

Yeah, so?

What is this article supposed to be about? Yes, it's illegal to distribute copyrighted content. Yes, you can be found sometimes. No, you do not have a legitimate expectation of privacy on the internet. So what? I'm sorry but this article is so 1999. I can respect that you're an IP attorney with probably more knowledge than most here but you didn't even discuss the surrender of info in RAM which was the real issue in this case. Someone get Sinrod back here so we can have some meaningful discussion...<br /><br />Mark

[headkase]

A better way.

I'm not saying that I even have one answer but I'm willing to explore the topic a bit. Capitalism at it's heart is the efficient allocation of resources given scarcity. Capitalism is great. All the way back to Adam Smith's "invisible hand" and unnamed before, capitalism has allowed progress by naturally letting solutions to our problems emerge out of simple actions among individuals. But Adam Smith didn't have the Internet. One of the most fundamental aspects of capitalism is the assumption of scarcity. So the issue isn't as clear as "stealing or not" because the rules that we accept as just when applied to the physical costs of moving things from producer to consumer do not translate meaningfully to the different costs (which are usually much lower) of disseminating that same Information over the Internet. And added to that the Internet is a new development so not enough time has passed to allow a fairer compromise develop between the way major labels would like to distribute their wares and what people are willing to pay. Basically capitalism works best when it is structured properly and fair structures (excluding antitrust) will generally develop over time. So I have faith that it will all work out to some fair status-quo within 20 years which is the blink of an eye in history.<br /><br />What do you think?

[rcrusoe]

The solution to piracy

IMO, the only solution to piracy is for the music and movie industries to abandon their antiquated business models and give their customers what they want.<br /><br />Sure, there is always going to be piracy, but the RIAA/MPAA's tactics are just driving the tech savvy users onto private and/or encrypted networks. And the longer they use their big hammers the more the technology for trading copyrighted works are going to filter down to the average users.<br /><br />I've read that as much as 30% of all illegal trading has already moved off the public internet. What happens when this increases to 60%? 90%.<br /><br />Then all the court orders, pretexting, and other techniques currently used by the entertainment industry will be totally useless. And they still won't be increasing sales.<br /><br />They would be much better off to fix their business plan while they still have some customers left.

[ColdMast]

nail on the head

cheaper music, better way of acquiring said music and no strings attached.<br /><br />sales would go up but the fossil that is the RIAA would be no more

[headkase]

A Compromise to Smack Them Upside The Face With.

I think you are right when you say (to paraphrase Star Wars): "The more you tighten your grip the more star-systems will slip through your fingers.". There is no technological solution to piracy. Period. DRM only creates headaches for people who actually buy their content - the pirates content always has the restrictions removed and is sometimes available before the content hits stores. So what are we to do?<br />I believe that something that actually has a snowball's chance in hell of working instead of fostering mal-adaptation would be the adoption of compulsory licensing. Basically remove all limitations on distribution of digital content and impose a fair levy across the board to all network clients. So everyone pays the levy to support the content and then the levy is divided among the people who provided the content. You do this by ratings: Everyone's computer reports its download history and the pot of money on the government side is split equitably among the providers. The amount charged to end-users is a flat rate. The Internet is revolutionizing distribution of content and it cannot be stopped. With that in mind: work with it instead of against it. Warez of all kinds becomes legal and Nielson type ratings as reported by download statistics (maybe at the isp-router level to fight gaming the system) determine how to split the pie.<br />But as with all solutions that work for everyone no-one will give it a chance.

[baike]

economics

Individuals resort to piracy as a form of rebellion against artificial economic constraints. To reduce or eliminate piracy, the artificial economic constraints must be addressed. In the music industry, the large labels dictate price and availability. Natural market forces are suppressed. Simple truth, make it easier and cheaper for people to get the music they want legally, and they won't pirate it.<br /><br />Another truth, a lot of the people who pirate music would not have bought the music anyway. They pirate because they can and its easy, but it does not represent lost revenue by the music industry. Why?, because that transaction would not have occurred by legal means.<br /><br />The bottom line is the music industry, just like any other business, needs to adapt to the new situation, technology, and consumer.

[headkase]

A Compromise to Smack Them Upside The Face With.

I think you are right when you say (to paraphrase Star Wars): "The more you tighten your grip the more star-systems will slip through your fingers.". There is no technological solution to piracy. Period. DRM only creates headaches for people who actually buy their content - the pirates content always has the restrictions removed and is sometimes available before the content hits stores. So what are we to do?<br />I believe that something that actually has a snowball's chance in hell of working instead of fostering mal-adaptation would be the adoption of compulsory licensing. Basically remove all limitations on distribution of digital content and impose a fair levy across the board to all network clients. So everyone pays the levy to support the content and then the levy is divided among the people who provided the content. You do this by ratings: Everyone's computer reports its download history and the pot of money on the government side is split equitably among the providers. The amount charged to end-users is a flat rate. The Internet is revolutionizing distribution of content and it cannot be stopped. With that in mind: work with it instead of against it. Warez of all kinds becomes legal and Nielson type ratings as reported by download statistics (maybe at the isp-router level to fight gaming the system) determine how to split the pie.<br />But as with all solutions that work for everyone no-one will give it a chance.

[Brandonius Maximus]

Wow, ONE anecdotal example?

You're not a very good attorney, are you? You're going to have to provide more than one anecdote to make a real case here. Most indie artists *are* helped by the proliferation of digital copies of their work. New fans are made and a people go to performances of true musicians. They make a living, often a good living. I'm really not impressed by the sob story of your single example artist not getting compensated for every single copy of his work -- he's making a good living still, right? In the real world, these so-called "losses" are called "the cost of doing business." <br /><br />If you can make a provable case that file sharing causes the artists to suffer a net loss of revenue, then perhaps you should create some sort of media malpractice insurance company to make up the difference. Of course, you cannot. The only people who are actually losing money from file sharing are the people in the old archaic media distribution business. Musicians, as a whole, are still doing well -- the entertainment dollar is just divided across a larger number of them. Basic economics, dear.

[sanenazok]

Wow and you came up with...

no example, anecdotal or otherwise. Hmph. Where are all these indie artists on record saying they love free distribution of their work? Do they make music for a living or are they the garage band type...no way to tell from your post since you didn't even provide a single example.

[mattumanu]

Anecdotal?

&gt;&gt;Musicians, as a whole, are still doing well -- the entertainment dollar is just divided across a larger number of them. Basic economics, dear.&lt;&lt;<br /><br />The largest number of musicians have to work a job AND try to have a music career. It costs money to do this, to have quality instruments, sound equipment for live music, mics, stands, cables, lights, then the countless hours of sweat and tears to master your craft. If it weren't for pawn shops, many muscicians would have no way to make a go of it at all. In the mean time, they can expect their fans to be greedy and rather than buy their new CD at the concert, their new fans instead head for the file sharing. (Prove to everyone that this isn't happening). <br /><br />The old archaic system isn't going away, because you are pointing at the wrong place and identifying that as the system. Get rid of the RIAA and you still have the promoters and the system remains the same. Assemble a band, practice your ass off, build some material, cut your own demo, get noticed (big IF here), log some time in a studio, cut your cd, go out and promote it either with a website/tour model or some other model, which means booking venues, paying the venues, paying for CD pressing, guitar strings, drum heads and other instrument repair, backup equipment, lodging, transportation, road crew... And after all of that, the artist can expect all their work to end up on file sharing networks.<br /><br />Have some respect people. If it's good enough to listen to, it's good enough to pay for. <br /><br />In the meantime, the pawnshops are doing well...

[bblackmoor]

Propaganda, not perspective

This article is mis-titled. It should be called "Propaganda", not "Perspective".<br /><br />Another fine piece of yellow journalism sponsored by the Digital Rights Mafia and the media robber barons.

[bknabe]

Verifiable evidence

that allowing file sharing helps authors and artists. Check out <a class="jive-link-external" href="http://www.baen.com/library/palaver11.htm" target="_newWindow">http://www.baen.com/library/palaver11.htm</a> and learn how Janice Ian and Mercedes Lackey (70's pop singer and modern author, respectively) both benefited from file sharing. Ian from "illegal" file sharing, Lackey from putting a few works in the Baen free library.<br /><br />The RIAA and MPAA don't understand what filesharing is (or what internet radio is) or how to use it. Baen books does, and have helped several of their authors using it.

[popsnie]

And you graduated from law school?

"It encourages individuals from taking responsibility for their actions." Well, I guess its better than discouraging them!

[boghound]

Piracy. The same old chestnut.

Here we go again. When news is thin on the ground let's roll out the copyright/piracy issue.<br /><br />It always takes the same editorial form as well. The one's that kick-start the issue are always the one's with a vested interest in the subject, i.e, they depend on the laws for an income but are nearly always on the side lines "stoking the fires". Look at the "job description" of Nancy Prager for example!<br /><br />As someone who has made a very good living out of producing copyrighted material and at the same time had it copied by so called pirates. I feel well situated to comment on the "Great Copyright Debate". I've come across some terrible copies of my material and talked to the people who have bought it, most say that it makes them buy a genuine copy. <br /><br />The same old argument rolled out "that it stifles young talent" is absolutly rubbish in this day and age of "bedroom production". When a few of the "Fat Cats" at the top of the tree come clean that the "debate" is about protecting their riduculas saleries. Perhaps then, this whole issue will take a "back-burner" whilst the World concentrates on more pressing issues.

[ecartman0]

2 thoughts

So as I understand it.....<br /><br />I don't own the music, I just bought the right to hear it. I own the CD not the music... OK. So how many times do I have to legally buy it? <br />I am a Hendrix fan. I bought at least 4 copies, I'm sure, of of ElectricLadyland on album (yeah I'm that old, hell I saw him live a few times). The worn out albums and cassettes I bought should cover the problem of downloading a copy right? You know like right now, the stick I have Ladyland on is in my car outside, so can I download a quick copy and listen to it now on my computer? How about format switching? Is that legal? Can I even have a memory stick in my car I made from a legal CD? It's all to complicated and too much BS. Guess I'll do what I think is right.<br />Now point two, copyrights.. never understood these . Why do "artists" get to claim their work forever? I am a modelmaker and if I create a model and it gets used multiple times, I only get paid once. Why in the world do heirs to copyrights continue to get proceeds from the long dead artist? Hell a few weeks ago we (my boss and I) came up with a process and mixture to make a skinlike plastic that feels and looks and moves right. Do we get anything for it? Nope the company I was working for owns it, even if we did invent it on our own time. IMO copyrights should last as long as the author is alive, after that it should be public domain.

[enigma.foundry]

IT'S ALL ABOUT FREEDOM, AS IN THE CONSTITUTION...!

Since the origin of the DMCA, corporations who have chosen to control creative content unconstitutionally have used a litany of excuses to justify their behavior. The most popular excuse seems to be that only with legal regimes such as the DMCA can corporations not suffer from lost sales. Recently, corporations have claimed that they have intrinsic rights to violate the fair use rights of citizens.<br /><br />Contrary to popular belief, DMCA has a direct impact on independent artists as well as major label artists, by giving the large labels defacto control over the licensing models used.