Digital Piracy: Adapt or Deter?

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(The author would like to thank Swaraj Paul Barooah for his valuable insights.)

Let me begin by putting forward a basic question – when was the last time you actually paid to download a song? And trust me, you deserve a pat if your answer is anywhere within the last two years. In this blog post, I have looked into the contentious issue of digital piracy and the implications it holds today. My major theme is an analysis of whether this online piracy can be curbed effectively and if yes, then how. The post is divided into six sections – (i) The basics, (ii) Deterrence as a solution (iii) Curbing piracy around the world, (iv) Digital piracy in India, (v) The creative industry’s viewpoint and (vi) Conclusion.

The Basics

Digital Piracy can be understood as the illegal copying of digital goods such as music, games, software, documents, apart from ‘fair usage’ and without the permission of the copyright holder. In India, ‘fair use’ basically protects certain acts from being termed as ‘copyright infringement’ such as literary work being used for private use/research/criticism/review.

Two theories suggest the origin of digital piracy –

1) Self-Control Theory – Poor parenting often leads to a child’s deviant behavior and he begins opting for simple, easy and risky ways, and

2) Rational Choice Theory – After analyzing the costs and benefits of a situation, one would (not) perform an act.

Today, children have started using the Internet at an average age of three! The easy availability of free data on the Internet induces people to download unrestricted data rather than legitimately buy it. The question to ponder over is whether this digital piracy can be effectively dealt with and if yes, then how.

Deterrence: A way out?

Since the advent of Napster in 2000, the original file-sharing programme, to the present BitTorrent, peer-to-peer file sharing has been on a constant rise. The reported monetary losses have been in billions of dollars accompanied with a considerable cut-down of jobs. So how do we effectively deal with this issue? The first answer which comes up is to deter users who illegally download data by making copyright laws more stringent. Initiation of criminal penalties for unauthorized streaming could prove as a deterrence. However, strict laws only instigate users to come out with other ingenious means to get illegal access to data, e.g. Tor Browser and other VPNs. And again, similar to a crime on the lines of the rational choice theory, if a person ‘needs’ to do it, he would go ahead anyway.

Curbing Piracy around the world

In U.S., the ‘Stop Online Piracy Act’ (SOPA) and the ‘Protect IP Act’ (PIPA) received intense criticism from legal experts as well as technology enthusiasts.

Along with restricting access to much non-infringing material, it also gave intermediaries immense power with regard to censorship enforcement. SOPA and PIPA were not passed due to protests led by Aaron Swartz along with other Internet activists and organizations. However, the ‘Trans-Pacific Partnership’, a trade deal which is essentially on the similar lines of SOPA/PIPA is still alive. The deal is between 12 countries in the Pacific region who are responsible for 40 percent of the world’s GDP and 26 percent of the world’s trade. Unsurprisingly, a SOPA lobbyist was recently nominated by Barack Obama for the TPP trade post.

The ‘Sinde Law’ passed by the Spanish government in 2011 echoes SOPA and has faced a lot of criticisms for similar reasons. New Zealand and France have a similar ‘three strike system’ to curtail copyright infringing. First, the transgressors are sent a warning via e-mail, followed by a letter if they continue and in the next case, they are made to appear before a judge. The judge has the power to impose fines or cease their connection.

And in India

The Delhi High Court in July 2014 restrained 472 websites from displaying/making available to the public any content related to the FIFA World Cup 2014, which inevitably included a number of torrent sites (Kickass Torrents, The Pirate Bay, Torrentz etc.). Inadvertently, the order restricted access to quite a few legitimate sites as well, one of them being Google Docs (later rectified). Hence, banning such websites which infringe copyrights is problematic on many levels. Also, in the present tech world, you block one site and a hundred others crop up. This argument was made by the government in the Kamlesh Vasvani case on whether to ban pornographic websites in India.

In India, the present mechanism dealing with online copyright infringement is the ‘notice and takedown’ system. The intermediary service provider after receiving a complaint from the copyright owner is required to refrain from facilitating such access to the impugned data within thirty-six hours and for a period of twenty-one days or till the intermediary receives a court order directing him to restrict access to that data (Copyright Rules 2013, Section 75).

The Creative Industry’s viewpoint

According to the IFPI Digital Music Report 2014, online subscription services grew by 51.3% in 2013, digital downloads account for a substantial 67% of digital revenues, revenues from performance rights also witnessed an upsurge by 19% in 2013 (double than the previous year), though physical music sales still account for 51.4% of total global revenue. The music industry has thus witnessed a considerable growth despite there being numerous pirate websites and illegal downloading on prowl. This is also supported by a report recently published by London School of Economics and Political Science – ‘Copyright & Creation’.

In fact, ‘Game of Thrones’, the most pirated show in the world for a number of years now, has considerably lost a lot of total revenue through this illegal sharing via torrent sites. However, Time Warner’s CEO, Jeff Bewkes explains that such downloading only helps in marketing of the product. Thus, the diffused media content over the web is externalizing an effect which is akin to marketing and publicity of the media creators. From the consumers’ perspective, piracy essentially enables them to make an informed choice.

BitTorrent, a popular free file-sharing site has been conscientiously trying to monetize its services. Thom Yorke’s new music album is being published in a new format called ‘bundle, where a person freely downloads the folder containing music files, but he has to pay a specific sum in order to open that folder.


Technically, ‘piracy’ is the harm caused by copyright infringement or ineffective protection of copyrights. On the other hand, ‘Copyright’ fundamentally means to compensate/reward and incentivize creators. Creation and innovation have fuelled the engine of growth. The whole piracy rhetoric needs to be understood in a different context. The spotlight needs to shift from the ‘harm caused by copyright infringement’ to ‘incentivizing/rewarding creators’.

Internet users will ultimately be on the receiving end of stringent copyright laws. Copyright infringement laws in Spain and U.S. are evidences to that. With regard to the loss of revenue, my suggestion would be to adapt to this new market, just like the music industry has used this new platform to their advantage. I am not advocating ‘copyright infringement’ or stating that the present mechanism for dealing with such infringements be removed. My point is simply that effectively dealing with digital piracy in today’s tech-savvy world is very difficult if not impossible. The trick will be to become accustomed to this platform and use it advantageously. Websites like BitTorrent are already a step ahead of the crowd. Yes, the race has begun!

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