By Ruth Vitale
Talk about out of touch. Big Tech’s house is in shambles, shaken by scandals, and people all over the world are creating pressure to fix Silicon Valley’s lack of accountability. Yet the industry and its allies keep trying to duck the question and shift the blame. They will not stop trying to evade responsibility for profiteering from the talents and livelihoods of others.
There is always another example. Just last month in a hearing before the House Judiciary Committee on piracy, the Computer & Communications Industry Association (CCIA) once again shamelessly trotted out the tired old dodge that “access to legitimate alternatives is the best way to fight online piracy.”
They trotted that argument out in the ‘90s. They dusted it off again in the early 2000s. But time and innovation have turned that argument into dust.
The movie and television industry now offer U.S. audiences more than 140 online services, which viewers used to access movies and television programs almost 236 billion times in 2019 – nearly three times as many views as just four years earlier, according to the Motion Picture Association. The number of new original television series produced expressly for online services reached 385 in 2019, up from 78 in 2015, according to the same report. Bottom line: CCIA, like other anti-copyright advocates, has its facts dead wrong.
But despite the availability of all this content from legitimate sources, there were still 105 million U.S. visits to pirate sites for movies alone, just in the month of February 2020, even before the pandemic took hold. The subsequent lockdowns, layoffs, and cabin fever no doubt contributed to the 43 percent increase in film piracy from February to April. If you add in TV piracy, including sports, the figure is nearly five times higher – 725 million. And, in a big change from the past, nearly 90 percent of those piracy visits used streaming services like the recently shuttered Dragon Box and Tickbox.
So, CCIA is looking at this issue from the wrong end of the telescope. The problem is not a lack of supply of legitimate digital content – the problem is a tragic abundance of piracy sites.
Illegal pirate enterprises know they can make a handsome profit by widely disseminating content someone else has paid to create, with little risk of getting caught and frequently feeble consequences if they do. In the United States alone, pirate subscription internet protocol television services have amassed more than 9 million subscribers – charging them $10 a month on average and generating more than $1 billion a year. That hurts creativity, and it’s wrong. We need better laws to deter piracy and enforce the law against those who profit from it. We need laws to hold the big platforms like Google and Facebook accountable for the piracy that flourishes because of their services.
But instead of stepping up to this accountability, Big Tech pushes its associations out front to argue against copyright. For instance, the Internet Association’s policy platform for 2020 repeats its perennial argument that the U.S. needs weaker laws because “unbalanced” copyright policy is protecting copyright holders at the expense of the public.
Where Big Tech sees “imbalance,” leading members of our Supreme Court see wisdom. They should consider the words of Justice Ruth Bader Ginsburg – who observed that “[r]ewarding authors for their creative labor and ‘promot[ing] . . . Progress’ are … complementary; as James Madison observed, in copyright ‘[t]he public good fully coincides .. with the claims of individuals.’”
Or from Justice Sandra Day O’Connor – who noted that “the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”
If creators are permitted to benefit from the value of their works, they will produce more, and the public will enjoy more. If one is looking for an “imbalance” in copyright law, consider the conclusion of the Copyright Office in its recent report on the notice and takedown provisions of Section 512 of the Copyright Act: “Congress’ original intended balance has been tilted askew.”
There is an imbalance in the obligations that current law places on individual creatives to police the piracy of their works on a global internet.
There is an imbalance in the law that allows owners of sophisticated streaming piracy operations to escape with only a misdemeanor charge for massive and flagrant criminal infringement costing creatives millions of dollars.
There is an imbalance when small copyright owners have to mount expensive cases to try to protect their works, and they are denied the equivalent of a small claims process (as the pending CASE Act would provide).
There is an imbalance in a system that does not require platform giants like Google and Facebook to make sure that once pirated content is taken down, it stays down.
So, let’s set the record straight for the Big Tech trade associations. Piracy is not a result of a shortage of incredible online content – it is the result of lax laws that allow flagrant criminal infringement. And the imbalance in our copyright laws does not tilt in favor of creatives – it plainly tilts against them, and it is time things were levelled up.