An Arms Race for the 21st Century: Copyright Holders and Pirates

*Suggested Caption: Should’ve Used a VPN

Innovation in the media content industry has given the back and forth between content copyright holders like the Motion Picture Association of America (MPAA) and pirate consumers the feel of an arms race. As soon as a new enforcement paradigm appears, so do ways to subvert it or technology that makes that particular brand of enforcement irrelevant. The parameters of the back and forth change, evolution of the debated issues is inevitable. Yet, some things don’t, and probably won't, change.

Back in January, the Center for Copyright Information shuttered their controversial “Six Strikes” program. In the most positive light Six-Strikes was a voluntary agreement between service providers and content holders to educate unwitting pirate users through a warning system and speed penalties – the program did have some upside. For all its failings (…which we’ll get to), “Six-Strikes” created an air of certainty and uniformity surrounding torrenting. One wouldn’t face legal action before one had exhausted one’s warnings and moreover, one could be reasonably certain that one was safe from repercussions if one was using a VPN, seedbox, or proxy.

But let’s be clear, the “Six Strikes” policy was most definitely flawed. It allowed ISPs to take distinctly disproportionate measures like throttling bandwidth and disconnecting Internet connections. It enshrined generally vague legal punishments and allowed ISPs to issue 35 dollar fees if one wanted to “defend” oneself from notices. What is more, the whole scheme was tremendously opaque having released precious little data and only a few press releases despite claiming to be primarily an endeavor aimed at educating the public about copyright infringement. The worst part was that these draconian enforcement mechanisms didn’t work very well, which is probably the reason “Six Strikes” no longer exists.

The “Six Strikes” episode is but one in an ongoing telenovela starring pirates, disrupters, and powerful industry giants… and there are many, many more episodes. Remember Aereo, the tech industry start-up that attempted to upend the traditional cable business model by setting up antennas to capture free broadcast signals and retransmit them for a fraction of the cost? They were decimated by a Supreme Court ruling in 2014 declaring them to have infringed cable copyrights. The crux of the case revolved around whether or not the retransmission of a free signal constituted a public performance of works that other cable companies pay fees to retransmit. Though Aereo was careful to operate according to existing law, something the dissent penned by Justice Scalia grudgingly admitted, that didn’t save them from the copyright wolves – so much for competition.

Even in cases where there remains a revenue stream, the MPAA, Copyright Alliance, and allies are unsatisfied. Take the example of music streaming platforms like Pandora and Spotify. Pandora pays licensing fees for its content based on a tiered system. Tier 1 royalties for ad-supported content are paid directly to artists. Tier 2 royalties for subscription services are paid to labels that license the music to the subscription channels. Spotify, for its part, has some blanket agreements in place with labels as well as some equity grants that monetarily reimburse BMI and ASCAP. Nevertheless, they both have been hit by a number of lawsuits from individual artists who claim that they constitute a “staggering” display of infringement.

On the flip side of the equation, industry players do attempt to create innovative ways to subvert piracy – they don’t always resort to suit. One example is the practice of simultaneous release dates. Simultaneous release refers to releasing a film on DVD, in theaters,