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Insights Blog: Five ways the music industry has fought piracy online

By | Published on Wednesday 19 October 2016


Originally published to accompany the CMU Insights masterclass and primer course on copyright infringement and music piracy. 

If third parties exploit the controls of a copyright without permission, that’s copyright infringement, and the law says to sue them for damages. But what happens when millions of people routinely infringe your copyrights? You can’t sue them all. And even if you did, most of them don’t have any money.

Which is the problem that the music industry has long been facing in its ongoing fight against online piracy. Here is a quick guide to five anti-piracy tactics the music industry has employed, with mixed success.

1. Sue the technology provider
Most of the music industry’s early efforts to combat online piracy focused on suing the companies providing the software or websites that facilitate the infringement, from Napster to Kazaa to The Pirate Bay.

These technology providers always point out that they themselves aren’t involved in the infringement, and that it’s their users that infringe. But generally copyright law has already considered this excuse and provides a mechanism for rights owners via which they can sue individuals or companies who encourage or enable others to infringe. This mechanism is sometimes called contributory or authorising infringement.

Though there are provisos. Efforts in the 1980s to hold the makers of tape-to-tape and video players liable for contributory or authorising infringement failed, because the manufacturers of the recording devices pointed out that their products had entirely legitimate uses as well as the illegitimate uses, and they couldn’t control how their technology was used after it had been sold.

Similar claims have been made by numerous file-sharing technology makers, though usually the courts distinguish file-sharing apps and sites from cassette and video players because the makers of the former can, in fact, control how their products are used, by installing and regularly updating filters to try and block infringing content.

To that end, while it took a while to debate the legalities, in the main the courts have held the companies behind software and websites that are primarily and widely used by others to infringe copyright liable for that infringement. The only problem is, it can take years to sue such companies offline, and in the meantime ten new piracy services have popped up on the internet to take their place.

2. Sue the file-sharers
The next thing the music industry tried was to sue the individuals who are actually downloading or, especially, uploading files to the file-sharing networks without licence. This is, after all, what the law tells you to do.

But, as we noted at the start, you can’t sue millions of people. The record industry, especially in the US, hoped that if it successfully sued a few hundred, or maybe a few thousand, file-sharers that would act as a deterrent for others.

Though in the main that didn’t work. For starters, in some countries there was some legal wrangling over whether file-sharing even constituted infringement. But even where that wasn’t the case, and the courts were pretty happy to see the sharing of music files without licence as straightforward infringement, high profile wins for the music industry in court didn’t seem to have any real impact on how many people were file-sharing overall.

Pursuing legal action against the file-sharers was time-consuming and expensive too, not least because – while you can monitor the internet and see file-sharing activity – you can only link the piracy to an IP address. So you first need to go to court to force the internet service provider to tell you who is using that IP address, and then you need to actually sue the infringer. Then, of course, there’s the PR challenge of being seen to sue young music fans who might, in other ways, be good customers of the music industry.

3. Three-strikes
The three-strikes or ‘graduated response’ system is a variation on suing the file-sharers, but in theory it’s a system that is easier for the rights owners and cuts more slack for the infringers.

Under three-strikes, rights owners ask internet service providers to send warning letters to suspected file-sharers, telling them their file-sharing has been spotted, that this is illegal, and that they could be sued if they continue infringing. The ISP doesn’t reveal the identity of the alleged infringer, but passes on the warnings. Net firms may do this under some kind of voluntary scheme, as has happened in the US, or they may be forced to comply by the courts or a change in copyright law.

Three-strikes is a lot cheaper for rights owners, in that they don’t need to pursue expensive litigation against every file-sharer, while suspected infringers are educated about copyright rules before anyone goes legal. Though the tricky question is what to do when people ignore the warnings. The idea is that you keep sending ever sterner warning letters to the file-sharer and if they don’t comply by a certain point – maybe after three warnings, hence three-strikes – something bad happens. But what?

Three-strikes systems have been employed in a number of countries. The ultimate sanction varies, it might be a lawsuit, or a fine, or a loss of internet connection. Quite how effective such systems have been is debatable, some say they have resulted in lots of people switching to legit music services, others question whether three-strikes systems have really had much affect on piracy levels at all.

4. Web-blocking
Web-blocking is a variation on suing the technology provider but, like with three-strikes, it is in theory quicker and simpler for the rights owner, especially where the piracy service you are targeting is based abroad, possibly in a jurisdiction where it is hard to enforce copyright.

Instead of actually suing the piracy set-up, you go to court to get an injunction that forces internet service providers to block access to the offending site, meaning that people in the local jurisdiction will no longer be able to reach the piracy service. The court considers whether the accused service is liable for contributory or authorising infringement, just like it would if the site itself was being sued, and if judges decide that there is liability, they issue the web-block injunction.

Web-blocking has become a preferred anti-piracy tactic in numerous countries, sometimes enabled by a change in copyright law, other times by a court simply deciding it has the power to issue web-block injunctions under existing rules. There are plenty of critics of this approach, who argue that web-blocks could be unfairly instigated against legitimate sites, though – while there may be vocal criticism when web-blocking is first introduced – once underway, generally it operates without much fuss, providing judges apply some common sense when it comes to which sites to block.

The bigger issue with web-blocking, of course, is that it is actually quite easy to circumvent the blockades, which is to say to reach the piracy service via so called ‘proxies’ which can usually be found via a simple Google search. Rights owners insist that web-blocks are still effective to a point – at least educating people as to which sites are unlicensed – though at the same time the music industry would like Google and the other search engines to automatically de-list any site that has been blocked.

5. Follow The Money
A final approach to tackling piracy is to go after the pirates’ money. Some piracy sites are run as profit-making enterprises, and even those run on a not-for-profit basis will have some basic costs to cover. Such operations will usually make money by carrying advertising, selling subscriptions or taking donations.

Much effort has been made in recent years to try to cut off these income streams, by encouraging brands and ad networks to ensure their adverts never appear on piracy sites, and by persuading credit card and online payment processing companies to ensure that they aren’t taking money on behalf of copyright infringing set-ups.

Various trade bodies around the world have been lobbying in this domain for some time, while in the UK the City Of London Police’s IP Crime Unit has been particularly proactive on pursuing the follow the money approach.

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