This article is written by Neelabh Keshav Sinha, a first-year student from Symbiosis Law School, Noida who is pursuing BBA LLB. The article provides an overview of the piracy, what constitutes piracy, the laws preventing it and so on.
A person’s possession, be it his work or belongings, is his ultimate brainchild, and the last thing he wants to happen to it is for it to be stolen and misappropriated by someone else.
Piracy has differed in meaning over the course of time, and the perspective and opinion on piracy changes with the generation it is referenced in. However, what remains uniform is the fact that piracy was, is, and probably will remain an unlawful act, regardless of the context in which it is interpreted.
This article will go over the definition of piracy, how it evolved over time, the legal consequences of piracy, how to prevent it, and services that use pirating methods.
Definition of piracy
In medieval presets, the term piracy was often used for the act of raiding or looting, which involved the ship-borne looters, who then attacked dwellers of another ship or a coastal area, with the primary purpose being to loot them of their belongings, such as cargo or other valuables.
However, in today’s world piracy is a more relevant and commonly used term, which constitutes theft on copyrighted and trademarked grounds i.e. unlawfully stealing and infringing someone else’s work and produce it as one’s own.
Piracy in the digital realm can be compared to physical theft and piracy, because when a person illegally distributes a digital file on the internet or locally for free, he prevents the profit from the purchase of that item from going to the creator, creating an economic impact comparable to when actual pirates looted cargo.
Types of piracy
Piracy, when elaborated in terms of software, can be classified into 5 types, those being –
- Counterfeiting: It is the illegal acquisition, duplication, and distribution of any copyrighted material, which directly imitates the copyrighted product. The nature of the distribution of the said product may be a sale, or not. The most common way of distributing such pirated works is through compact discs.
- Internet Piracy: Internet piracy is the act of downloading a file from the internet, or by procuring an online software through a compact disc. Methods of conducting internet piracy are websites offering free downloads of software, auctions selling illegally obtained software or P2P servers which transfer programs.
- End-User Piracy: This form of piracy involves the user illegally reproducing software which he isn’t authorized to do. An example would be a user using one license to the software and installing it on multiple systems, or upgrading an already pirated software.
- Client-Server Overuse: In a computer network, when the number of clients exceeded the number prescribed in the server license, then it is termed as overuse piracy.
- Hard-Disk Loading: This occurs when a business sells new computers with illegal copies of software loaded onto the hard disks to make the purchase of the machines more attractive.
Piracy in movies
The act of illegally acquiring, copying, reproducing and then distributing film media, without having any legal right or license to do so, is considered movie piracy. The most common occurrence of this is the distribution of these movies on websites. Traffic for these sites tends to spike whenever a new blockbuster movie releases as a pirated version will very likely be hosting these movies in a downloadable format on their servers.
Piracy in software
Software piracy describes the act of illegally acquiring, copying, reproducing, and distributing software without a license to do so. Software piracy has become much more rampant in this generation of technology, as most software has converted into a one-user license i.e. it can only be redeemed once by one user for his use alone. Distributing this software, such as sharing with a friend, or via the internet, is illegal.
Online piracy is still a new arena in the world of piracy as compared to its offline older brother, and it has only grown more intricate with advancements in technology. Any piece of digital content, be it movies, music or games, are now accessible online through the BitTorrent client service, which strings together several pieces of the data from a swarm of users, then downloads and compiles them onto the user’s computer. It’s simple, efficient, widely used, and difficult to crack down on.
Movie piracy has become a more controlled art in recent times, from shaky recordings on camcorders to dedicated sites, apps, and add-ons to physical hardware, piracy has grown more subtle yet more dangerous as a practice. In the UK, over a third of people who are above the age of 16 pirate movies.
The method of pirating movies and uploading them online has also grown more intricate and difficult to track. Pirates often make use of BitTorrent to upload their files and store them online. The data travels to the user who requests the file is supplied with the file through the contribution of a huge group of seeders i.e. pirates who upload the files in bits and pieces. However, with the recent crackdown on online piracy, and links for pirated files being shut down, pirates save files offline, and these same games and movies are then sold via optical discs at grey markets.
Law for piracy
Surprising as it may be, there is no definitive international law that governs piracy as a whole, at least for the digital equivalent of piracy. Under international law, the statute of piracy only covers ‘physical’ piracy, i.e. the actual looting and plundering of goods and valuables via ship-borne thieves.
Copyright is one tool to prevent the intellectual property of a person from being pirated. It is the legal right granted to a creator of any intellectual property to be able to reproduce and redistribute his work, at his discretion. Although back then, and even today, copyright doesn’t exactly prevent piracy, it does protect the legal interests of the party negatively affected and prescribe legal consequences for the perpetrator, in the event that copyright infringement(piracy) does occur.
Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.
Filming a movie
An act of piracy that involves recording a movie or a video, especially without prior authority from the creator or purchased license to do so. The most notable method of movie piracy is known as camcorder piracy, in which a camcorder or a small recording device is often snuck into a theatre, and the entire movie, recorded onto the camcorder, is distributed online via the internet, either on pirated sites for free or sold on gray markets.
Websites to pirate movies
Websites that host pirated content are one of the most popular sources to acquire pirated content, as most of these sites offer the content for free, which sees them experience a lot of network traffic due to their popularity, and the sheer number of users accessing their domains to get their hands on the latest pirated songs, games or movies.
While several governments have encouraged ISPs(internet service providers) to block these sites by default on their services, these sites are still regularly visited through the use of VPNs(Virtual Private Networks). Some of the most popular sites to pirate movies are –
- The ‘YTS’ domains
- The Pirate Bay
Law of copyright in India
To handle copyright and copyright infringement related disputes, the Indian Constitution has the Copyright Act, 1957, which acts as the main statute for all copyright-related laws in India. Under section 13 of the Act, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films, and sound recordings.
The Copyright Act, 1957 handles protection of copyrighted material via classification of the same into two categories of rights, those being –
- Economic Rights: The scope of this Act falls under originally conceptualized work including literary works, dramatic works, musical works, artistic works, cinematograph films, and sound recordings. The owners of these intellectual properties and works are given exclusive rights which they can exercise when it comes to the reproduction and distribution of these works, and to have a share in the profit of any sales of the product made by a licensed third-party.
- Moral Rights: Section 57 of the Act splits moral rights into two basic rights, right of paternity and right of integrity. The former enables the original creator of the intellectual property to be able to claim ownership of it and prevent any others from claiming ownership. The latter enables the creator to restrict any and all ‘distortion, mutilation or other alterations of his work, or any other action in relation to said work’ which may damage his reputation.
Piracy in India
India is one of the few countries that has multiple dominant box office film industries, in Bollywood, Hollywood, and Tollywood. As such, piracy is a much more dominant force considering there is a lot more material to pirate which the local audience would be interested in. Internet users often use VPNs to visit torrent sites which host songs, games, movies and the like. Local vendors at technological hubs often carry compact discs with pirated movies and games, which are sold at cheap prices. Modding video game hardware to play pirated discs is also a booming industry in India.
Pirating movies in India
Considering the viewership of cinema in India with the three major cinema industries, the traffic of sites that host pirated content is also considerably higher in the country. While the above-mentioned torrent sites, which are the most used across the world, are relatively popular in India, people often tend to visit piracy sites that host Bollywood or Tollywood content exclusively. Some of these sites are –
Punishment for piracy
Illegal downloading of movies
The Union of India recently issued an amendment to the Cinematograph Act, 1952, in order to clearly define the punishment which can be faced by pirates who, without the written authorisation of the copyright owner, use any recording device to make or transmit a copy of a film. It is not necessary for the film to be fully recorded, or even distributed via the internet. If the perpetrator attempts to record the movie while inside the theatre, he is guilty under the act.
The punishment for this is generally imprisonment, a fine, or both. This punishment can also extend to those who download said pirated movies.
Charges for piracy
Since the crime of piracy is not limited to only the movie industry, the punishment specified above isn’t the only one dealt to pirates. It varies with the industry in which they are committing an act of piracy. The most notable forms of punishment are covered in the provisions of the Copyright Act, 1957 and Information Technology Act, 2000. The punishments specified are as follows-
- Copyright Act: If a person uses a pirated computer program, or a program that has been manufactured or acquired through copyright infringement, on any computer device, he shall be liable for imprisonment no less than 7 days, extending up to 3 years, and a fine no less than Rs. 50 thousand, which may be extended up to Rs. 3 lakh.
- IT Act: If a person gains access to a computer, a network of computers, or computer systems, then proceeds to view, copy and extract the data present on the computer, either through digital means or through a removable storage medium(pen drive or hard disk), without prior authorization from the owner of the computer, he is liable to pay damages as compensation which can go up to a sum of Rs. 1 crore. Any person who downloads said stolen data will also be liable for the same amount.
Prevention of piracy
While the legal consequences associated serve to act as an effective deterrent against piracy, they are not nearly enough to act as a solid preventive measure, considering actual prosecutions against digital pirates are few and far in between. This is because most intellectual property owners tend to just get a cease-and-desist(termination) order against sites which host pirated content, which are just orders to take down the download links for the content.
Therefore, there are, while loosely-defined, some effective ways to prevent piracy, i.e. deter users themselves from seeking out and downloading pirated content. These are as follows –
- Price Regulation: By offering digital goods and services at a lower, realistic price, producers can hope to at least lessen the number of users pirating their content by a wide margin. It won’t stop piracy completely but reducing the incentive for people to make use of pirated content will certainly prevent piracy to a large extent.
- Barriers to Entry: This is a mode of prevention that rests more within the jurisdiction of the government. Most governments instruct and encourage ISPs to restrict entry into sites which host pirated content, mostly by blocking the sites on their servers. Directly barring users from accessing these sites helps reduce the pirate users by a large amount, as most don’t have the technical know-how i.e. how to use VPNs which is required to circumvent the sites being blocked.
- User Confrontation: A lot of TV and streaming services often use a combination of both the above-listed methods, but with some real-time interaction with the users. Pirate users often get real-time messages which notify them that the producer is aware of them using pirated content. Game developers often use this to troll pirate gamers in hilarious, game-breaking ways.
- Cooperation between industries: The above-listed methods to prevent piracy, while working great on their own, often fail and fizzle out when there is one bad link in the chain. That one bad link can be a producer who is lenient with his content being pirated or doesn’t know about the extent of piracy. That is why, all of the above methods, if executed systematically and efficiently by all relevant producers at once, can be one of the biggest deterrents to pirates.
Camcorder piracy refers to the method of piracy used in pirating movies. This involves the pirate recording the entirety of the movie while in the theatre using a camcorder. These movies are generally referred to as ‘Cam print’ movies. Keep in mind, camcorder piracy is not limited solely to the use of camcorders. Any device capable of recording video qualifies under camcorder piracy.
Despite the quality of these pirated movies being very poor, with constant shaking, foreign audio, and low video pixels, these movies are downloaded in large quantities, largely due to the timing of their upload, which is usually a couple of days after the release of the movie. A lot of these movies are often repacked into optical drives for sale in black markets via local vendors.
Need to prevent camcorder piracy
While not as prevalent of a force as it was in the early 2000s, camcorder piracy is still a huge threat in the cinema industry, especially in the Indian box office. Since Bollywood and Tollywood often come out with lower-grade, cheap entertainment movies to make a quick buck out of the middle to lower classes, these movies are quick to be pirated via camcorder recording and are spread wide over the internet.
This causes major damage to the movie industry considering the more the movie is pirated, the lesser net earnings are made by the box office. A lot of studios never even get back their original investment in the production of the movie. If the loss through piracy is bad enough, it can lead to a loss of jobs due to low earnings, and the black market sales of such pirated products can also help sponsor organised crime. Therefore it can have a hugely adverse impact on the economy in general.
The legality of recording movies in the theatre
As per the amended Cinematograph Act, 1952, the recording of movies in the theatre by any recording device, in order to produce a pirated ‘cam print’ of the movie, is illegal and punishable by law. The act of recording by itself is punishable in law, the rest of the process to successfully pirate the movie is irrelevant in deciding the guilt of the pirate.
Pirates who record movies via camcorder can face legal consequences, the provisions for which are described under the Act. The punishment for the same is imprisonment for up to 3 years and a fine payable up to Rs. 10 lakh.
How does piracy affect the film industry?
When talking about one of the biggest blows that piracy has dealt to the film industry, the most notable attack is one carried out right before the release of the star-studded action film, ‘The Expendables 3’. According to this Forbes article, the movie was acquired illegally by pirates and the entire thing was leaked online for download. Statistics estimate the viewership of the pirated movie to be close to 70 million viewers.
This sets a dangerous precedent for the economic success of these movies, especially today when movies can be downloaded and streamed on almost every device out there, be it phones, tablets, laptops, desktops or even video game consoles. This leads to a larger viewership of pirated content. More views equal more deduction from the profit margin of the producers of the movie.
And this reduced profit margin does not mean less income for the producers only, it also affects the other employees working in the entertainment industry. This includes composers, set designers, electricians
Losses incurred by the film industry because of piracy
The losses which the studios incur as a result of piracy are no small amount. The losses climb up to 7-8 digits, wherein losses are measured in the millions. The large amount of people accessing pirated content is also a contributory factor in these losses.
Taking the above case regarding ‘The Expendables 3’ as an example, it has been estimated that the movie lost about $100 million in revenue due to the pirated leak of the movie before release, and the views during the release of the film.
India’s box office, as of August 2018, is worth almost $21 billion. However, in terms of piracy, it is also a leading juggernaut. It is ranked among the top five countries with the maximum P2P(connection type for torrent downloads) downloads. Through this, it has lost around $2.8 billion of its annual revenue.
Reporting piracy: how to go about it
Reporting acts of piracy is perhaps one of the most overlooked techniques which helps in preventing piracy. While few, there are associations that exist to counteract piracy and shut it down. However, they need surveillance and vigilance from their users in order to do so. Some of these associations which offer online piracy reporting services are –
- Software and Industry Information Association: This domain serves as an extension of the SIIA, a regulatory authority based in Washington, DC that extends its services across the globe. These strive to deal with acts of computer and software piracy at an organisational level.
- Recording Industry Association of America: The RIIA deals exclusively in cases of music theft and piracy in the United States to protect artists from losing revenue through illegal music distribution and sales.
- Copyright Alliance: The Copyright Alliance is a unique organisation in terms of its function, as, instead of directly attempting to put a stop to any rights of copyright infringement, it notifies the producers of the content themselves, so that they may take appropriate action as they see fit.
Aside from these organisations, there is a lot more that you can do at a local level. Other than condemning piracy yourself and refusing to take part in it, you can also act as a deterrent for movie piracy, by reporting any and all suspicious activity, which may be camcorder recording, to the nearest security official.
How do movie pirates make their money?
Movie pirates can be categorised into two types – ethical and unethical, which is ironic considering their main bread and butter is unethical by itself, but there is more to that story.
Ethical pirates mostly upload and make their pirated content available just for the sake of spreading entertainment and making content available early, and for free. Most of them do not have profit as a primary objective and earn revenue only to pay for their website’s server costs and to keep it running. This is mostly done through ads that pay per click, and since most pirated content sites involve a lot of clicking by a lot of users, they generate a lot of money.
Moving on to the unethical pirates. These pirates do not have user entertainment and convenience as their agenda. They actually operate in cooperation with cybercriminals who set up malware on the website’s body. This malware actually steals user data, and the pirate who hosts the site gets paid a hefty sum.
Pirates also earn money through streaming i.e. they stream their pirated content on specialised ‘Kodi boxes’, the sales of which earn them money.
BitTorrent: How does it work?
BitTorrent, at its core, is a communication protocol, much like HTTP or IP. It serves as a mini-client that hosts a P2P connection. These connections are then used to host and distribute data and electronic files.
The functioning of BitTorrent is completely based on the P2P connection system. In BitTorrent’s case, the two peers are the ‘leechers’ and the ‘seeders’, and the combination of both in the BitTorrent system is known as a ‘swarm’. Inside this swarm, there is no central server. All the data circulated is amongst the leeches and the seeders. Once a user enters the swarm, it is connected simultaneously to all the computers inside the network, depending on what file it wants to download. The client then starts downloading bits and pieces of the same file from different ‘seeder’ computers, which are then simultaneously compiled into one file locally on the leecher’s system.
This entire process is monitored through tracker files present within torrents. These trackers, while not influencing the downloads themselves, allow the client service to keep reconnaissance on which files are being downloaded and through what system.
Is piracy a felony?
To determine if an act of piracy is a felony or not, we must establish the structural difference between what crime and felony are. While crime is a generic definition of what is an illegal activity that harms others, a felony is an extension of the definition of crime.
A felony is determinable only through the seriousness of the original crime. A felony can be anything that warrants a punishment of more than one year’s imprisonment or the death penalty.
Any crime which warrants a lesser punishment is classified as a misdemeanor.
Therefore, if we analyze the punishments doled out in cases of piracy, the punishments can be extended up to 3 years along with a monumental fine in India. The length of the punishment given alone is enough to classify piracy as a felony.
What are the effects of leaking a movie through the censor board?
Earlier, movies to be submitted to the Censor Board for review were submitted on a DVD format. This made them a relatively easy target for pirates, and a lot of movies were leaked online, even before official release. The pirated prints of these movies often had a watermark that said ‘For Censor’, making it evident that these were pirated through the DVD copies of movies submitted to the Censor Board for review.
The Censor Board eventually did take action, and changed the format of submission from standard DVDs to an encrypted file format, commonly known as DCP-KDM format.
DCP is the encrypted format in which the movie is submitted to the Censor Board, either on a hard disk or USB Pendrive, which is then run off of the theatre’s main central server. The KDM part of the file contains a serial key which is then used to decrypt the movie for viewing.
Rules, Acts and Laws excluding Copyright Act
Information Technology Act
While the Copyright Act acts as a general supervisor to monitor acts of piracy and punish the perpetrators accordingly, the Information Technology Act’s scope of piracy only extends to the unauthorized use of computers or a network of computers. Any data then copied or reproduced from that system onto an external storage device counts as an act of piracy.
The punishment for piracy, when governed under the Information Technology Act, is direct payment of damages, which may amount to compensation up to Rs. 1 crore.
The determination of how much the pirate will have to compensate is quantified through these factors –
- The amount of gain or unfair advantage, wherever quantifiable, made as the result of the default
- The amount of loss caused to any person as a result of the default
- The repetitive nature of the default.
Internet Service Providers, however, are exempted from the provisions of this Act, if they can prove that they had no existing knowledge of the act of piracy committed.
A trademark is the primary identification mark of intellectual property and is represented by the universal symbol (TM or ®), used by a particular organisation, which signifies that the intellectual property is unique and under their sole ownership. Trademarks can either be registered or unregistered, although being registered offers many more legal remedies.
The owner of a registered trademark can file a suit to protect the intellectual property registered under it from any infringement or unauthorized use of the trademark. They can file an action of infringement which is a statutory relief, which can either be an injunction to prevent unauthorized use of the trademark or enable the claim of damages by the injured party.
In the case of an unregistered trademark, the owner can file a suit under the action of passing off for the same remedies as an action of infringement, except the benefits are limited to only the geographical area in which the owner operates.
The menace of piracy, despite having faced many obstacles to try and curb it, is still going strong as a practice and has a farther reach than ever. More devices are optimised to use pirated content, and in hydra-like fashion, for every site taken down, two more take its place.
This isn’t to say that piracy is immortal. More governments are becoming more vigilant in regard to how big threat to piracy is. The current situation is very volatile, as there is no way to tell if piracy will grow weaker with the increasing crackdown on it, or will remain omnipotent.
As a producer, one can only enforce the methods available to them. They can’t stop it, but the most they can do is try to reduce the harm done to them as much as possible.
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