Saving Online Copyright: Virtual Markets Need Real Intervention

DOI: 10.1111/jwip.
12131
ORIGINAL ARTICLE
Saving online copyright: Virtual markets need

real intervention
Adam R. Tanielian1 | Pakinee Kampan2
1
Preparatory Year Program, King Faisal
University, Mubarraz, Saudi Arabia Abstract
2
College of Law, Chulalongkorn University, The internet is a treasure chest of infringing or “pirated”
Bangkok, Thailand
entertainment media, which viewers from around the world
Correspondence access, copy, and share with relative ease. Data and
Adam R. Tanielian, King Faisal University,
qualitative reviews suggest infringement is ubiquitous in
10396 Prince Abullah bin Jalawi Street,
Mubarraz 31982, Saudi Arabia. the streaming and downloading domain. The current
Email: adam.tanielian@gmail.com
approach to copyright enforcement places undue burdens
on copyright owners who cannot economically advance
claims against millions of individual users. Poorly con-
structed copyright laws and misguided Court decisions have
left rights‐holders with too few remedies against commercial
entities involved in the storage, retrieval, transmission,
access, and streaming of their works. A five‐year exploratory
and observational study were conducted to discover facts
about online pirate media, how services function, how
companies make money, and how they skirt around laws
prohibiting unauthorized commercial exploitation of copy-
right. Sites discovered had multimillion‐dollar valuations and
annual revenues, mostly derived from third‐party advertise-
ments. The study found numerous deficiencies in copyright
legislation and judicial interpretation that enable massive
online infringement to continue. Recommendations include
statutory and regulatory amendments, judicial reversals,
reconstruction of the law, and development of a binding,
compulsory mechanism similar to Internet Corporation for
Assigned Names and Numbers’ domain name trademark
dispute resolution system.
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© 2019 The Authors. The Journal of World Intellectual Property © 2019 John Wiley & Sons Ltd
J World Intellect Prop. 2019;1–21. wileyonlinelibrary.com/journal/jwip | 1

2 | TANIELIAN AND KAMPAN
KEYWORDS
copyright infringement, cyberlocker, DMCA, internet, P2P
1 | INTRODUCTION
People around the world are spending about as much time using the internet as they are watching TV, which
correlates to increased consumption of copyright‐infringing or “pirated” video content. Even as Netflix and other
pay‐to‐watch services increase subscriptions and grow their share of online traffic, the volume of traffic generated
by pirated media sites and networks has grown (Bode, 2018). Private, casual viewers have a handful of routes to
pirated media access online. For prerecorded media, viewers can use peer‐to‐peer (P2P) or torrent networks,
direct‐download cyberlockers, streaming cyberlockers, or they can download and run software that ties together
search, download, streaming, and playback functions. For example, Kodi, Plex, Emby, and Stremio, either in their
original state or with plugins, enable users to locate and view millions of titles. Live media is also available, either via
live‐streaming cyberlockers or software.
Cyberlockers are all fairly straightforward. Hosting companies offer online file storage for individual subscribers
to upload. In the case of live‐stream, users with special software rip content from paid‐services and paste a
reproduction on the live‐streaming pirate cyberlocker. Streaming cyberlockers are much like YouTube in that
content is uploaded by users and the host provides video playback software fixed into the webpage so people can
stream videos. Direct‐download cyberlockers merely allow subscribers to upload and download files which viewers
play with software like Windows Media Player or QuickTime. Some streaming cyberlockers have download
functions available for users. Browser plugins or web applications can also facilitate download of media on
streaming cyberlockers. Kodi software and others like it give users access to all the same content through one
program. These media software applications do not offer an entirely novel service; rather, they make the search,
retrieval, and viewing experience more seamless and convenient for some users who do not want to navigate
through cyberlocker directories via web browsers.
P2P networks are marginally more serpentine than cyberlockers. Torrents—the current version of P2P—require
users to install software onto their PCs (e.g., BitTorrent, BitLord, Tribler, rTorrent, µTorrent, and qBittorrent).
Users then surf the internet to find and download a torrent file associated with a specific movie or episode of a TV
show, or entire season of a series. Titles frequently have multiple files for users to choose from—some offering
different degrees of quality, film editions or cuts, embedded subtitles or voiceovers, or other variations. Torrent
software opens the torrent file allowing users to join a “swarm” of other users who all simultaneously upload and
download small parts of the whole video file. When a whole file is finished downloading, a user may continue
uploading to (or “seeding”) the swarm or cease transmission of the file while retaining a complete copy on their hard
drive. The U.S. District Court provided a thorough explanation of the torrenting process in Hard Drive Productions v.
Does 1–188 (2011, at 1162).
Numerous issues affect user choice in video retrieval method, not the least important of which is legal
disposition toward providers and users. In Stichting Brein v. Ziggo (2017, at 47), the Court of Justice of the European
Union (CJEU) held “the making available and management of an online sharing platform, such as [torrent services],
constitutes a communication to the public” under the EU Directive on copyright (European Parliament, 2001). The
CJEU banned various media players in Stichting Brein v. Wullems (2017), holding the “sale of a media player
preloaded with add‐ons that provide users direct access to streaming pirated videos likewise constitutes a
communication to the public.” Convenience, efficiency, and portability also affect user preferences. Whereas
committed pirates are attracted to P2P services that offer more download options, casual pirates tend to prefer the
single‐view option at streaming sites. Irdeto (2018) found internet users increasingly prefer mobile devices to view
those streaming sites. Between 2010 and 2017, average daily internet viewing time grew to within 30 min of TV
viewing time. In the same period, the global share of internet usage for phones as compared with PCs rose from
TANIELIAN AND KAMPAN | 3
20% to over 70%. Some phones in 2019 had enough memory to store multiple large video files of more than 1 GB
each, however, most phones are simply not equipped to manage files in the same way as a computer. In contrast,
mobile devices offer users a compact, portable way to easily stream content (Irdeto, 2018). As more people have
begun using phones to watch videos online, cyberlockers have begun replacing P2P services as the biggest threat to
copyrighted videos.
American Courts first exposed large scale dangers P2P networks pose with regard to copyright in A&M Records
v. Napster (2000). Napster created a P2P network that allowed users to share files located in directories on their
personal computers. Virtually every file uploaded and downloaded via Napster was copyrighted, and users’ sharing
via Napster violated the U.S. Copyright Act. Following Napster’s demise, users switched to nearly identical services
Kazaa (Metro‐Goldwyn‐Mayer v. Grokster, 2005) and Limewire (Arista v. Lime Group, 2011), which Courts likewise
enjoined from operating as music studios sought relief for copyright infringement. While P2P popularity among
casual pirates has been waning, diehards and professional infringers still prefer torrents to download high‐quality
videos as compared with streaming; professional individuals and groups upload to streaming cyberlockers that
share advertising revenue with uploaders based on page views (Aguiar, 2015; Irdeto, 2018). Estimates vary
regarding economic impacts of online television and movie piracy, but analysts concur that hundreds of thousands
of jobs and tens of billions of dollars in revenues are lost annually in film industries worldwide. Job‐loss estimates
may include tertiary or ancillary services that benefit from film companies, such as cleaning, transportation, and
catering (Aguiar, Claussen, & Peukert, 2018; Keen, 2013; Minnock, 2014).
1.1 | Copyright in the legal context

Countries formalized modern copyright protections upon adopting the Berne Convention (1886) in the late‐19th
century. Other treaties like the WIPO Performances and Phonograms Treaty (1996) and WIPO Copyright Treaty
(1996) have brought the Berne Convention’s central purpose of protecting copyright into the digital age, but the
World Trade Organization’s General Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS)
(2017) remains the most important international agreement because it mandates state‐parties apply criminal
penalties “at least in cases of willful trademark counterfeiting or copyright piracy on a commercial scale.” Treaties
and implementing statutes grant copyright owners exclusive rights to restrict or authorize reproduction,
distribution, and performance of the work in any medium. In practice, there are various economic, social, political,
budgetary, and institutional issues that complicate enforcement. For example, TRIPS at Articles 65–66 provided
transitional relief for developing and least‐developed countries, which were allowed to delay implementation of
TRIPS provisions. Lesser‐developed countries may still have little interest in enforcing copyright laws against their
own people for the benefit of a wealthy foreign corporate copyright holder. Corrupt payments from infringing
groups may also be more pervasive or influential in poorer countries. Treaty agreements have formalized copyright
protections in legal texts, but application and enforcement vary due to multiple constraints.
In the United States and Europe, criminal or civil liability may be assessed depending on the nature and scale of
the infringement, and whether there is intent to profit from infringement. Primary infringement is direct
infringement; that is, unauthorized usurpation of rights to reproduce, distribute, perform, or otherwise exploit the
work for financial gain. Historically, there was little disagreement about who the primary infringers were in
copyright cases where crimes involved tangible, static, physical materials (i.e., paper documents, books, magazines,
analog storage devices like phonograph records, audio and video cassettes, and digital storage devices like CDs,
DVDs, etc.). Simpler technologies lent to simpler facts and legal considerations than today’s digital infringement
cases. If a person were caught making 100 physical copies of a pirated DVD, that would certainly appear to be
direct commercial infringement; however, if a person uploaded the same pirated version of a movie to the internet
where 100 people downloaded or viewed it, the facts do not necessarily point toward commercial infringement.
Courts have consistently held that individual uploaders and downloaders are primary infringers (i.e., Napster,
Grokster, and Limewire cases), but those direct infringers are seldom involved in Court proceedings because of the
decentralized nature of file‐sharing and viewing platforms.
In the Napster–Kazaa–Limewire era, juries awarded monstrous sums of money to copyright owners as
restitution from individuals who casually shared protected works without permission. In Capitol Records v. Thomas‐
Rasset (2012), a jury awarded the recording company statutory damages of $9,250 per work, for a total of
$222,000. A second jury awarded $1.92 million, which the District Court reduced to $54,000. A third jury trial
awarded $1.5 million, which the District Court again reduced to $54,000. The Circuit Court of Appeals reinstated
the original $222,000 award. Thomas‐Rasset appealed to the Supreme Court, which denied the petition (Thomas‐
Rasset v. Capitol Records, 2013). In another case, a jury awarded Sony $22,500 per work, for a total of $675,000 for
30 songs that an individual shared. The District Court later reduced the jury’s award by a factor of ten. The Appeals
Court reinstated the original penalty, which the individual defendant was unlikely to ever completely pay off (Sony
BMG v. Tenenbaum, 2011). These cases left the judiciary fractured and the public shocked, making media companies
appear rapacious and legal possibilities seem “absurd” to District Court Judge Gertner (Sony BMG v. Tenenbaum,
2010, at 109).
The U.S. Supreme Court eventually ruled to constrain costs awarded in copyright cases (Rimini v. Oracle, 2019)
but in the interim period following Tenenbaum, bad press made pursuit of damages against individuals less
appealing to major studios. Having little concern for optics, pornography companies sprung to action and took on
hundreds of thousands of torrent users in mass John Doe lawsuits (Karunaratne, 2012). The Does ultimately
prevailed as the pornographer‐plaintiffs incorrectly relied on “swarm joinder” theory to evade up to millions of
dollars in Court filing fees (In re BitTorrent, 2012). Despite the plaintiff’s sordid dealings, the improper joinder
decision in the Doe suits represented yet another defeat for copyright holders. Filing individual complaints against
millions of primary infringers is not a profitable activity, which presents an unacceptable set of options for media
companies. Do copyright owners ignore infringement knowing that, although infringement probably costs them
sales revenues, legal fees accrued in the takedown of untold numbers of files would exceed damages collected from
private individuals? Do the rights‐owners continue to apply in Courts around the United States and abroad ad
infinitum as new uploads replace those that were just taken down? For over a century, the chief legal purpose of
publicly traded companies has been maximization of shareholder wealth (Dodge v. Ford, 1919). If the companies
shrug off infringement, they do their fiduciary duty and their balance sheets get a nudge, but they are left to
contemplate their futures of rights without remedies. Media companies have found themselves susceptible to
massive online infringement, but they have had no fiscally advisable means to redress their hapless plight. To regain
control over their intellectual property, copyright owners and holders will have to deal with the problem indirectly.
The U.S. Supreme Court reflected on the impracticality of dealing with direct infringers:
When a widely shared service or product is used to commit infringement, it may be impossible to enforce
rights in the protected work effectively against all direct infringers, the only practical alternative being to go
against the distributor of the copying device for secondary liability on a theory of contributory or vicarious
infringement (MGM v. Grokster, 2005, at 930).
Secondary infringement occurs when a natural or juristic person facilitates another person or group in their
direct infringement. Secondary liability is pondered directly in the UK Copyright Act (1988, at §22–26) while the
concept was developed in Courts in the United States. Courts recognize two types of secondary liability:
contributory and vicarious. The American Court held that “one who, with knowledge of the infringing activity,
induces, causes or materially contributes to the infringing conduct of another, may be held liable as a contributory
infringer,” and also that “one may be vicariously liable if he has the right and ability to supervise the infringing
activity and also has a direct financial interest in such activities” (Gershwin v. Columbia, 1971, at 1162). In Fonovisa v.
Cherry Auction (1996), the American District Court decided a flea market landlord could not be held liable for sales
of infringing products by vendor‐tenants, but the Circuit Court of Appeals reversed and held the swap‐meet
manager contributorily and vicariously liable for promoting, encouraging, and willfully ignoring vendors’ direct
copyright infringement. Courts similarly applied common law principles of secondary liability to shut down early‐
version P2P services. In A&M v. Napster (2000, at 921–922), the Court cited Fonovisa v. Cherry Action (1996) and
compared Napster with a swap meet, reasoning that Napster had the right and ability to supervise or police
infringing activity but opted to allow it in pursuit of profit. In MGM v. Grokster (2005, at 919), the Court held Kazaa
liable for secondary infringement, opining that “one who distributes a device with the object of promoting its use to
infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for
the resulting acts of infringement by third parties.” Limewire faced a similarly adverse Court which awarded
damages in civil suits against the secondary infringer without involvement of millions of primary infringers in the
case (Arista v. Lime Group, 2011).
Governments are infrequently inclined to intervene on behalf of copyright holders, possibly because online
infringement usually involves some extraterritoriality which makes the process slower, more expensive, and less
certain. The burden of proof for a criminal case is higher than in civil cases; that burden of proof is only multiplied in
cases involving extraterritorial jurisdiction, extradition requests, or document subpoenas. Further complicating the
process is disentangling the secondarily infringing commercial entities from the millions of primary infringers, and
then convincing foreign states that it is appropriate to indict a contributory or vicarious infringer when no
individual primary infringer is named in the indictment.
Arten Vaulin was a codefendant in a case against Kickass Torrents (U.S. v. Vaulin, 2017). Vaulin was in Poland
contesting a U.S. indictment on three counts of conspiracy to commercially infringe and distribute copies, and one
count of making domestic and international financial transactions with criminal proceeds from copyright
infringement. Vaulin sought to dismiss the indictment partially on the basis that the Copyright Act does not provide
for extraterritorial jurisdiction for contributory and vicarious infringement—the Act mentions neither—but the
Court denied Vaulin’s motion because the core of the indictment was that he aided and abetted infringement
occurring in the United States by orchestrating the system that millions of Americans used to download media. The
Copyright Act need not be applied extraterritorially if the aiding and abetting under 18 U.S.C. §2 is in relation to a
crime committed in the United States. Still, the whole process could be a waste of time if extradition or evidence
requests are denied. Meanwhile, rights owners cannot obtain justice nor damages.
1.2 | Interests of copyright holders versus web developers

By the end of the 1970s, consumers had access to technologies that could capture and reproduce media with
relative ease. Sony’s Betamax videotape recorders made it possible for average people to record television
broadcasts, which Hollywood studios found threatening. In Sony v. Universal (1984), the U.S. Supreme Court denied
a copyright complaint brought by Universal, who sought the removal of the Betamax from the market. If the Court
had decided in favor of Universal, the world may have never seen writable compact discs, digital video discs, nor
any number of memory devices and programs that allow users to copy, store, and move media. The Court likely
sensed that a ruling in favor of Universal could have seriously stifled technological advancement, including that in
the media sector where technology could ultimately benefit copyright owners.
By the time the Court rendered its opinion, Sony’s Betamax was nearing the end of its lifecycle as VHS took
over the market. In the years following, Sony and other tech‐companies marketed laserdiscs, minidiscs, CDs, DVDs,
and flash memory devices. With each new generation of media players, manufacturers offered improved speed,
quality, and portability. This process of incremental technological development generated millions of patents. The
patenting process serves the dual purpose of protecting owners’ economic rights and disclosing information to the
public which can build on existing art to create new inventions; the cycle of disclosure and development continues
to generate value for companies and society alike. The cycle came full‐circle as Universal Studios ultimately found
new ways to market its products as consumer electronics brought the cinema home, all made possible in part by a
ruling in favor of a tech company over a film studio.
The past century of scientific discovery and innovation has been unparalleled in all of human history.
Undoubtedly, the people who legislate, enforce, interpret, and litigate laws implicitly understand the economic,
social, cultural, and other merits of electronic media devices and software. Legal professionals must also recognize
that while artistic and literary works are of irreplaceable value, computers and other electronics are of far greater
economic and financial worth (Forbes, 2019). Accordingly, if the practice of the law shall favor one sector over the
other, the most utilitarian option is to favor patentable works over copyrighted works. During the great migration
of media from cassettes and discs to computer files (i.e., .mp3, .mp4, .mpeg, .wav, .avi, etc.), the engineers and
programmers responsible for building the new medium have enjoyed broad freedoms to develop systems that pose
extraordinary threats to copyright. As a result of largely unregulated development and expansion of consumer
technologies, online media piracy came to be ubiquitous, and its prevalence is continually growing (Irdeto, 2018;
Karaganis, 2010). Surely, the current state of copyright online is not what the drafters of the Berne Convention had
in mind, nor what the national Congresses and Parliaments had in mind when they passed sui generis copyright
legislation, and certainly not what the Court had in mind when it decided Sony v. Universal.
1.3 | Companies caught between demand and supply

In Fortnightly v. United Artists (1968, at 399), the American Court heard a case involving a community antenna television
system that enabled viewers to watch television broadcasts from long distances via large hilltop antennas and coaxial
cables from those antennas to subscribers’ homes. The Court held that the owner and operator of the community
antennae television (CATV) system did not violate the right to performance because like viewers, and unlike broadcasters,
CATV only carried programs to the public. According to the 1968 Court, broadcasters select, edit, procure and propagate
programs, which CATV did not. The Court opined that “broadcasters perform” while “viewers do not perform” and
therefore, viewers could not violate the copyright holders’ exclusive rights to perform. In the years following Fortnightly,
Congress rewrote parts of the Copyright Act to clarify that broadcasters perform the work when they transmit or
retransmit content, and viewers perform the work when they access media via a receiving device (H.R.Rep. No. 94–1476,
1976, at 86–87). Decades later, Courts upheld the same principle when it decided that an early variation of on‐demand
streaming services infringes upon reproduction rights if the provider does not work out a licensing arrangement with
copyright owners (Twentieth Century Fox v. Cablevision, 2007, at 624). Both the European Union Intellectual Property
Office (2019) and U.S. Copyright Office (2019) clearly affirm that downloading or uploading a work without consent of the
owner is unlawful. Notwithstanding statutory prohibition of uploading, downloading, or streaming without consent, the
internet offers a marketplace where demand for free media exists, and so suppliers are eager to capitalize without regard
copyright laws which have been inadequately enforceable at a global scale. Unexpectedly, the lex lata can be used as a
sword or shield for infringing media sites but scarcely as a shield for copyright owners.
1.4 | “Safe harbor” protection for cyberlockers

The Digital Millennium Copyright Act (DMCA) provides safe harbor protection against liability for infringements if
the service provider has no actual knowledge of infringement, nor is willfully ignorant of infringement, nor is
involved in infringement or inducement of infringement. In Viacom v. YouTube (2013), the Court granted YouTube
safe harbor on the basis that the company did not have actual knowledge of specific infringing content, and because
YouTube promptly removed infringing content upon receiving formal complaints from copyright holders. In
delivering the Court’s opinion, Hon. Stanton stated, “knowledge of the prevalence of infringing activity, and
welcoming it, does not itself forfeit the safe harbor. To forfeit that, the provider must influence or participate in the
infringement” (Viacom v. YouTube, 2013, at 118).
Similar to Sony v. Universal (1984) wherein the Court may have predicted significant developments in VCR and
later DVD technologies on the horizon, the Court in Viacom v. YouTube (2013) may have foreseen the rapid and
competitive development of online streaming technologies and software that emerged in the years after YouTube. A
Court that supports a free market is not eager to intercede unless absolutely necessary, nor is it inclined to
obstruct progress in an entire branch of industry simply because products can be used to violate copyright. Despite
the clearly positive economic and industrial impacts YouTube has made since the Court’s decision, such broad
application of safe harbor has effectively left copyright holders with no means by which they can take meaningful
action against commercial‐scale infringement at cyberlockers and streaming sites.
2 | METHODOLOGY
In January 2014, two research partners (“the team”) began an exploration into the depth and breadth of copyright
infringement of popular film and television media via online streaming and download websites. The observational
study concluded 5 years later, in December 2018, after the team accessed more than 10,000 works. The initial
objectives of the research were to discover facts about internet copyright infringement, and to investigate if and
how laws were ineffectual in providing equity to copyright owners, specifically to television and film studios and
broadcasters. Over the course of 5 years, the objective evolved to include assembly of a globally scalable, pragmatic
remedy to massive online copyright infringement.
The design was relatively simple: use a home computer and a private internet connection to find and stream
popular movies and television series. Security measures included purchase of Norton antivirus software, and
installation of multiple free ad‐ and popup‐blocking extensions for Google’s Chrome browser (e.g., AdGuard, No
Coin, Stealth Mode, and uBlock Origin). At times, a virtual private network (VPN) helped ensure the highest level of
security for the home computer and team members. Given the legal environment with regard to online copyright
enforcement, the team found it appropriate to utilize a VPN with a dynamic IP address, which the European Court
interpreted as personal data under Directive 95/46 (Breyer v. Bundesrepublic Deutschland, 2016, at 49).
The team initially conducted Google searches using strings like “watch free TV episodes and movies” or “watch [movie
or TV title] online free.” The team simultaneously tracked new releases, box office sales, and popularity of various genres
in entertainment, news, and sports media by using the Google search engine. The team sought a range of videos that were
remarkably popular or controversial, and those with high ratings, award nominations, or otherwise good reviews on
internet boards (e.g., rottentomatoes.com or imdb.com). Google searches yielded links to multiple sites that specialize in
procuring, hosting, and transmitting pirated media to the general public. Some of the sites offered premium memberships
for a fee. The team made no investigation into paid memberships on infringing sites, nor did it give out any personal
information. In spite of a nil budget, the team viewed more than 10,000 unique video files over the duration of the study.
In the course of investigation, the team witnessed how upload, storage, and delivery systems function for private
individual nonpaying home users. The team made inquiries via Google’s search engine to discover business information
relating to cyberlockers and directory sites. The team found site registrant information for infringing sites via Whois
registries (Whois, 2019), which provided IP address and some contact information for site owners. The team used the
Worth of Web Calculator (worthofweb.com) to find site valuation and traffic data relating to commercial entities
involved in the illegal exploitation of copyrighted works. These particulars enabled the team to analyze conceivable legal
distinctions between the disparate services offering free access to protected works. After collecting a robust data set
across multiple platforms over a span of 5 years, the team constructed its legal argument.
3 | RES U LTS
The study discovered a peculiar corner of the internet offering free access to media—videos to which competitors
in other parts of the internet sell. Whereas Netflix, Hulu, Amazon, and others gain revenues from subscriptions, the
services discovered in this study apparently collect revenues via third‐party advertisements which appear in
abundance throughout the process of using these free services. Titles included works from nearly every major
studio, a catalog of popular television shows, and virtually every critically acclaimed cinematographic work from the
past 40 years (e.g., FilmBug, 2019; IMDB, 2019a, 2019b), plus a wide range of second or third tier productions from
lesser‐known studios. Newer media—within the past 10 years—were more easily accessible, but with some
searching, the team found nearly any title it searched for, regardless of age or relative obscurity of the media.
The 5‐year internet media search discovered two main categories of media: prerecorded videos accessible at
cyberlockers and live television streams. Services offering prerecorded content rely on users to upload videos that
can be retrieved via database queries or indexing sites. Like YouTube, those users are apparently compensated a
portion of ad revenues depending on the number of page views. Unlike YouTube, cyberlockers under focus required
external directory services for nonpaying visitors to swiftly locate videos.
Specialized directory sites collect, organize, and manage links to popular copyrighted works that have been
uploaded to cyberlockers. Some directory sites (e.g., Putlocker) feature embedded cyberlocker media players while
others assist users in navigating to external viewing or downloading sites (e.g., swatchseries).
Live‐streaming sites procure numerous sources of real‐time streams that viewers may watch or record if they
run ad hoc software. For users, live‐stream sites function like directory sites and serve as a substitute for a cable,
satellite, or direct‐TV subscription.
Throughout the study, several service providers shut down or changed names. For example, the directory site
letmewatchthis.ch changed its name to 1channel.ch, then to vodly.to, and finally to primewire.ag. Near the end of the
study, primewire.ag became inoperable and overrun with malware, causing it to shut down for several weeks; it later
reopened as Primewire with multiple domain name suffixes. Numerous cyberlockers came and went during the period
of observation. Sites presented in this section were still operating at the end of 2018 though some faced blocking by
internet service providers (ISPs) under Court order in the UK Open Rights Group (2019) reported that, among others,
various iterations of putlocker, openload, 123movies, and swatchseries have been blocked in the United Kingdom.
3.1 | Directories
Directories were the most convenient way to find videos to stream. Directory home pages are filled with official
movie and TV series posters and promotional images. Users click on the image or corresponding text to look into
available links to the movie or episodes of the TV series. Movies are available at various stages in the commercial
cycle, from bootleg camcorder versions taken in cinemas to later‐stage high‐definition (HD), DVD, or Blue‐Ray
editions. Directories usually indicate the stage of videos with terms like “Cam” or “HD” or “DVD.” Directory website
designs, features, and contents leave no question as to whether the companies are aware of and actively
participating in infringement.
These sites have internal applications that allow users to search for videos by title, genre, year of release,
country, ratings, and other criteria. Directories do not generally store content themselves; rather, these second‐tier
sites generally procure viral links to popular media. Internal searches for titles return dozens of links to streaming
cyberlocker files. Occasionally, a link is invalid or leads to a file that has been removed for copyright infringement,
but generally, a user needs to only try a few other links to the same or another cyberlocker to find an active file.
Some directories offer membership, but they all offer the public free access to millions of movies and TV shows.
Despite their being free to use, directories have high valuations and estimated revenues, which are ostensibly gained
from advertisers who pay directory sites based on visits and clicks. Site owners have a dangerous combination on their
hands, of high site‐traffic and conspicuous commercial copyright infringement, and in response, they frequently provide
incomplete or inaccurate Whois registrant information. Table 1 has data on directory sites.
While the sites were free to use, they were complicated and mildly dangerous. Users of directory and streaming
sites face obstacle courses of popup ads and malware links. Were it not for Norton, the study probably would have
ended within a few months due to viruses, malware, ransomware, or other intrusions. Norton security blocked tens
of thousands of malicious sites and attacks that attempted to download and install malware extensions or crypto‐
mining software. Chrome browser security also blocked access to multiple directories over the course of study, and
T A B L E 1 Television and movie directory data

Registrant Value (million Annual revenue Page views Visits daily
URLs country USD) (million USD) daily (million) (thousands)
swatchseries.to Missing 96.3 17.2 16 3,200
123movies.la Missing 79 9.8 9 1,800
putlocker.vip PA 39 1.9 1.8 359
openloadmovies.net USA 21 1.2 1.1 228
diziay.com USA 2.3 0.493 0.457 91
some of those sites rebuilt parts of their pages only to have the Chrome block lifted later in the study. Each click,
anywhere on any page, may result in a new browser window or tab opening and redirecting to potentially harmful
sites that must either be blocked by the browser or antivirus security protocols, or the user must manually close it.
To successfully get to a media player page where the desired content may be streamed or downloaded, users
first have to endure a lengthy process of closing popups that are activated with every click—popups that are
persistent even with multiple pieces of ad‐blocking software running. After a dozen or so steps, users find playable
media, but embedded players are frequently booby‐trapped such that when a user clicks the “play” button, they
must first suffer a final round or two of popup ads and malware traps.
Figure one shows steps for viewing media via a directory site (Figure 1).
3.2 | Cyberlockers
Cyberlockers were very rarely accessible directly. Google searches for a specific media title and the name of a
specific cyberlocker returned multiple second‐tier directory links to that title at that cyberlocker, but pinpointing
that web address without the assistance of a specialized directory site was mostly unworkable. For example, a
search using the string “Avengers Infinity War + gorillavid.in” produced a link to the movie via 123movies.biz but
not directly at Gorillavid. Upon replacing gorillavid with streamcherry, the same search yielded a link directly to the
movie at awcinema.com but again, no direct links were present on the first page or two of Google search returns.
The relationship between cyberlockers and directories appears more than merely symbiotic. They appear
interdependent, working in concert where one is relatively useless without the other, but they become a powerful
force for infringement when combined—like pirate YouTube.
Advertisements appear above, below, and alongside embedded video players on cyberlockers, but they can be
avoided by viewing in full‐screen mode. Alternatively, users have the option to download directly on some cyberlockers,
such as Openload or Vidoza, or they can use a browser extension or web‐application to download and view later. Scores
of specialized video‐downloading applications were available upon running a Google search using a string like, “video
converter + YouTube downloader.” Cyberlocker services evidently comply with DMCA takedown notices, but the same
file title is frequently available on another account at the same cyberlocker, or a competitor will have it.
Table 2 shows valuations and site traffic for cyberlockers far exceed those for directories.
3.3 | Live‐stream directories

Live‐streaming cyberlockers had the shortest lifespan among each of the site types under study, probably because
these sites have the fewest legal defenses. Despite low valuations and traffic compared with prerecorded media
directories, these sites offer robust access to hundreds of broadcasts. Table 3 provides site data.
Live‐streaming services are the least reliable and most confusing for nonpaying users. Popup ads and malicious
site redirects are more abundant, and users have to try more links on average before they find a live‐stream as
Popup opens to User or security

Go to swatchseries.to
external site, software closes
and click anywhere on
potentially harmful popup
page
Scroll and
Popup opens to choose Find link to
external site, cyberlocker to desired media,
potentially harmful view media click
Popup opens to
User or security Page of clickbait ads external site,
software closes opens, find and click potentially
popup “continue” button harmful
Cyberlocker welcome page User or security

Cyberlocker file
opens, click “continue” software closes
page opens, click
“play” on player popup
Popup opens to
external site, User or security View media
potentially software closes
harmful popup
FIGURE 1 Sample viewing process flowchart
T A B L E 2 Cyberlocker data
openload.co CA 967 101 94 19,000
streamango.com CZ 96 17.2 16 3,200
vidoza.net BS 81 10.6 9.8 2,000
gorillavid.in SC 44 2.1 1.9 388
streamplay.to Missing 43 2.1 1.9 386
vidlox.tv Missing 38 1.9 1.7 349
streamcherry.com CZ 19.3 1.2 1.1 216
vshare.eu Missing 2.3 0.5 0.464 93
movpod.in SC 1.6 0.37 0.343 69
daclips.in SC 1.4 0.337 0.312 62
T A B L E 3 Live‐streaming site data

livesport.ws Missing 65 3.8 3.5 697
streema.com PA 19.3 1.2 1.1 218,000
123tvgo.com PA 0.084 0.071 0.066 13.1
stream2watch.ws USA 0.041 0.045 0.042 8.4
compared with prerecorded streams. Live‐streams are also subject to lags and breaks in transmission unlike regular
streaming cyberlocker feeds. For example, high site traffic during the 2016 McGregor–Mayweather boxing match
overloaded servers and severed feeds at several live‐streaming sites, which quickly posted apologies and
explanations to visitors. Internet speed also significantly limits the viability of live‐streaming services.
3.4 | Sports
Sports are a special category discovered during the study. Copyright for sports matches is typically associated only
with an original broadcast. Licensed rebroadcasts and reproductions of sporting matches are rarely made available
to the public. A league may provide direct access to on‐demand replays for a fee to home viewers (i.e., NFL Game
Pass, NHL TV, NBA TV, and MLB TV) but sports matches are fundamentally dissimilar to other TV shows and
movies in that viewers only scarcely desire to watch a sporting contest after the original broadcast has aired and
scores have made their way into the public. Also in contrast to TV shows and movies, viewers generally never
watch the same sports match more than once.
Table 4 shows site valuations and estimated traffic for sports sites are the lowest among the four site types
reviewed, but these statistics do not suggest these sites pose a lesser threat to copyright holders than the other
types. In fact, unauthorized replay and live‐streaming sites probably threaten sports copyright owners more than
owners of other forms of entertainment media. The UFC, for example, relies on pay‐per‐view subscriptions for its
revenue in title fights that can be live‐streamed or replayed for free via sites in Table 4.
If paying subscribers switch to these free services, it represents a double loss to promotions like the UFC, which
competes in both live and replay stream markets. Maybe these sites do not pose existential threats, especially to
major sports leagues, but their share of the viewer population certainly impacts balance sheets of sports‐media
copyright owners.
3.5 | Advertisements, harmful sites, malware, and security threats

Revenues in pirate media markets appear available only, or at least primarily, in the form of advertisements.
Directory sites usually have panels of advertisements next to and among media listings. Streaming services
T A B L E 4 Sports site data

allwrestling.org GB 0.772 0.209 0.194 38.7
fullmatchtv.com ES 0.048 0.053 0.049 9.9
nflfullhd.com TH 0.02 0.023 0.021 4.3
stream2watch.ws USA 0.041 0.045 0.042 8.4
sometimes interrupt streams with short advertisements, like YouTube. Live‐stream cyberlockers carry signals
during broadcast, so advertisements are included in the pirated live‐stream as they would be in the original
broadcast. The team found advertisements for money‐making schemes, dating services, adult video games, assorted
apparent malware, and surprisingly, a range of premium and secondary brands. These findings follow prior research
into online pirate media providers (Weatherly, 2016). Norton Security alerts and automatic blocks were present at
90% of clicks or more. Norton prevented intrusions coming both upon first or new clicks, and while a page was left
open and idle. The most common types of security issues Norton discovered were malicious domain requests, coin
mining applications, unwanted extensions or scam sites, malvertisement redirects, and fake tech support. Norton
blocked hundreds of thousands of incoming connections attempting to download data to the user’s PC. Despite the
onslaught of apparently severe security threats, users witnessed no infection to the PC nor disruption of services;
consumer‐level security measures completely prevented intrusion and infection.
3.6 | Video and audio quality

Cyberlockers offered an astounding range of media which were playable through embedded apps. JW Player had
an apparent monopoly position in the market aside from cyberlockers which stream through players under their
own logos. A variety of video resolutions were available, and the user could toggle from a pixelated 240p or lower,
to a medium grade 480p, or HD 720p, all the way to HD 1080p or higher. The team chose a variety of resolutions to
assess quality, which was remarkable in almost every case. In contrast to prerecorded media, the team found very
low audio and video quality in camera versions of in‐cinema pictures, but there were exceptions within that group.
Most notably, bright cartoons were often remarkably clear despite the limitations of camcorders. Audio and video
quality for postrelease media was comparable to the original in virtually every trial. So long as internet speeds are
sufficiently high, users can stream high‐grade content via the sites detailed in this section.
4 | D IS C U S S IO N
The study confirms that an individual can enjoy on‐demand television and movies free of charge for extended
periods of time. Anybody with an internet connection can view, and in many cases download a staggering number
of major and minor titles. English was the language of all but a handful of titles in this study, and as such, nearly all
rights owners were American individuals or companies. If the U.S. Congress enacted the DMCA with the aim of
eradicating or even significantly impeding online copyright infringement of cinematographic works, data shows the
Act has utterly failed in achieving that end. When the Court granted safe harbor to YouTube—a streaming
cyberlocker that visitors can use as a download source in tandem with browser plugins or web‐based download
tools—the flood gates were opened to unfettered infringement. Viacom v. YouTube (2013), and moreover the
current interpretation of DMCA, have made it impossible for rights holders to seek remedies directly against the
sites that provide access to thousands, if not millions of infringing files; instead, copyright owners can only chip
away at infringement one file at a time with DMCA takedown notices. Results showed DMCA takedowns affected
access to some files on some cyberlockers but did nothing to actually prevent access to any work as hundreds of
copies or a single work are available, and the removed works are replaced almost immediately by one or more new
copies of the same video. In view of the feeble DMCA takedown system after YouTube, commentators have called
Court’s interpretation erroneous and recommended revisions to the Act itself. Katz (2011) argued for reversal of
the YouTube decision and amendments to the DMCA. Fisher (2015, at 669) lamented that “even when a website
tries to promote conformity with copyright law, it can find itself liable because the current state of the DMCA
makes compliance so difficult.”
The YouTube decision was probably correct for the time, and again the Court showed foresight in recognizing
YouTube as not just another infringing site but as something that could grow into a $100 billion company
(TubeFilter News, 2019; Weiss, 2019; Worth of Web Calculator, 2019). Technological and market environments
changed substantially following YouTube, and as the web and its catalog of infringing files constantly expand, the
Court’s disposition in Fortnightly—that broadcasters and not viewers are infringers—has become an attractive
alternative to its current position that broadcasting sites are not infringers but viewers are. Live streaming sites
provide the same services to viewers as licensed broadcasters, and somehow the Court would hold viewers direct
liable when to the average user’s knowledge, the computer no more makes a reproduction of a stream than a
television set makes a reproduction of a broadcast.
In 1975—a year before the Copyright Act amendment—the American Court discussed how a finding that a radio
listener “performs” the broadcast would be “highly inequitable,” and practically unenforceable (Twentieth Century
Music v. Aiken, 1975, at 162–163). The Court’s opinion commented on the “total futility of any evenhanded effort on
the part of copyright holders to license even a substantial percentage” of the countless radio and television sets
around the country. Since then, computers and mobile devices have replaced televisions and radios. Despite the
minute technical details, the new gadgets perform essentially the same listening and viewing functions as the old
machines. The difference today is that Courts are apt to consider all of those countless viewers as being primary
infringers and since YouTube, cyberlockers can hide behind safe harbor protection except—or so it seems—in only
the most egregious of cases.
Indeed, the cyber‐entities do not select programs that viewers display on their devices, nor do the companies
upload the infringing files; rather, users are the uploaders and the ones who select, stream, or download content. In
this regard, the sites are nearly identical to YouTube. The difference is that YouTube users can easily find amateur
works, examples of fair use, and content offered by copyright holders themselves whereas users of other sites like
those under study (i.e., openload, putlocker, streamango, streema, nflfullhd, etc.) are not likely to ever come across a
noninfringing file. In fact, there does not seem to be another, more legitimate purpose for their existence. These
findings are supported in prior research on cyberlockers (NetNames, 2014) which Courts should consider ipso facto
contributory infringers as the service they sell “has no (or only slightly) legal use” (see John Doe, et. al v. GTE, 2003,
at 662).
Demand and a pull‐market are evidenced in the mere fact that these sites exist, and that there are so many of
them over the course of several years, and that there is some semblance of market competition. Infringing
cyberlockers offer a service at a price—free—that satisfies existing demand, and they can do so solely because they
specialize in infringing materials. Netflix, for example, restricts access to videos based on subscriber home country
because Netflix negotiates with studios over copyright and royalty issues (Rosenberg, 2019). Having no concern for
copyrights nor royalty schedules, infringing sites can offer the same content in any territory whose ISPs will carry
the signal. A Netflix subscriber who travels to many regions only to lose access to their favorite videos may believe
infringing sites provide a better service than Netflix at no cost; and it is hard to compete with free, especially when
users have little disposable income.
Statistics have shown increasing popularity of paid services (Australia Government, 2017), particularly as
consumers switch from cable or satellite networks to online services (Clark, 2018), and there is reason to believe
paid‐services are normal economic goods—consumption rises as income rises. In contrast, pirated media exhibits
some qualities of an inferior good in that wealthier countries and people tend to prefer legal media, but culture also
plays a part in consumption of infringing content (University of Amsterdam, 2018). Irrespective of market‐making
phenomena, there is no foreseeable conclusion to the online piracy problem absent substantial institutional and
legal reform.
4.1 | Copyright and customary international law (CIL)

Copyright has been the subject of international law for longer than human rights, and although copyright does not
concern life or death as other parts of CIL, both state practice (usus) and opinio juris (Diakonia, 2019)—the two
qualifying criteria of CIL—are present in copyright law. International agreements, such as the Berne Convention
and TRIPS, are generally recognized as sources of CIL (see Restatement, Third, of the Foreign Relations Law of the
U.S. §102(3), 1987). In Flores v. Southern Peru Copper (2003, at 162–163), the U.S. Appeals Court affirmed treaties
are evidence of CIL, provided that an “overwhelming majority of states have ratified the treaty, and those states
consistently and uniformly act in accordance with its principles.” WIPO administers 26 treaties; the Berne
Convention has 176 contracting parties; the WIPO Copyright Treaty and WIPO Performances and Phonograms
Treaty each have 100 contracting parties; and TRIPS has 164 contracting parties. While enough countries have
ratified copyright treaties to satisfy the first part of the Flores test, there is a lack of uniformity in how States
interpret and apply laws and regulations. Schaefer (2011) explained, “while there is a degree of harmonization of
the laws and regulations governing IP rights and their enforcement, these are not unified. Varying laws and
practices in different jurisdictions make it difficult to navigate the legal landscape, fueling legal uncertainty about
outcomes. Against this backdrop, some commentators have cast the law as a lame‐duck limping behind dynamic
new commercial and technological developments in the real world.” Perhaps the EU, United States, United
Kingdom, Canada, Australia, and other developed countries have satisfied the second part of the Flores test among
themselves, but these affluent States are still a minority of all contracting parties.
Variance among States with regard to copyright protection and enforcement could imply copyright law does not
form part of CIL proper, however, customary law has been applied in award of damages in copyright infringement
cases pertaining to traditional knowledge. WIPO (2013, at 20) clarified, “Customary law or practices may establish
relevant facts that are then taken into account in separate legal systems. For example, the existence of custodial
obligations under customary law has been used as a factual basis for awarding additional damages in the case of
copyright infringement.” Traditional knowledge is a branch of intellectual property covered by the same WIPO
Performances and Phonograms Treaty (1996) and Beijing Treaty (2012) that give power to online copyright.
Plainly, copyright is not commonly considered a part of CIL, but there is some movement in that direction. Given
TRIPS provisions for delaying implementation for developing and least‐developed countries, one can reasonably
argue that those countries’ present nonparticipation obstructs criminal copyright enforcement from having
emerged under CIL. Still, the overwhelming adoption of TRIPS as an aspirational goal suggests transboundary
criminal enforcement will emerge as customary in the near future. Moreover, qualitative and quantitative elements
of opinio juris and usus suggest copyright enforcement is emerging as part of CIL just as climate change (Scharf,
2014) and right to life for whales (D’Amato & Chopra, 2010) have emerged under CIL. Cross‐border copyright
protection is of manifestly lower priority than other aspects of CIL (i.e., war crimes, genocide, ethnic cleansing,
torture, targeting civilians, slavery, etc.), but if copyright forms part of CIL, States are obliged to take action and
combat transnational, commercial copyright infringement.
The Office of the U.S. Trade Representative (2018) advocates that foreign nations are obliged to protect
American intellectual property, and it makes lists of countries that do not provide sufficient IP protection to
Americans, yet millions of American browser histories hold an ironic twist: they are some of the world’s most
prolific infringers of online media. Irdeto’s (2018) survey of 19 countries found instance of infringing use of P2P and
webvideo highest in Russia, the United States, Canada, Germany, and United Kingdom. While Russians preferred
P2P by nearly a 50:1 margin, suggesting Russians are frequently downloading for commercial use, the other
countries in the top‐five preferred web video, suggesting more private, individual use and probably more mobile
streaming.
The Global Intellectual Property Center (2017) ranked high‐income Organisation for Economic Co‐operation
and Development (OECD) countries the best in the world for IP protection. The top ten were United States, United
Kingdom, Germany, Japan, Sweden, France, Switzerland, Singapore, South Korea, and Italy. Wealthy industrialized
nations are proud of their strong IP protection systems, but the accolades and praises overlook massive online
copyright infringement in the Western world. Having pushed, negotiated, demanded, and otherwise advocated
universal recognition and enforcement of IP rights, including online copyright, it is clear that those high‐income
countries presently bear a binding legal responsibility to protect works in cyberspace, regardless of the nationalities
of the owners and infringers. Furthermore, they have the capital, human resources, the skills and knowhow, the
legal infrastructure, and the requisite technologies to satisfy their obligations under international and domestic law;
what has hitherto been lacking is a definitive plan and the will to carry out the agenda.
4.2 | Rethinking Court opinions

Commercially infringing cyberlockers should not be able to shield themselves with safe harbor. If another case like
YouTube were heard, the Court could come to a different conclusion and provide relief for content owners,
developers, and licensees. Consider Twentieth Century Fox v. Cablevision (2007, at 622), in which a licensed
broadcaster provided subscribers with digital video recording (DVR) capabilities that would capture content, store
it on the company’s servers, and allow subscribers to playback such media at a convenient time. Cablevision’s
systems resembled an early version of cloud‐based, on‐demand streaming. Unfortunately for Cablevision, the
company did not obtain permissions from owners of copyrighted programs before launching its DVR package. The
Court held users’ initiating playback via remote control did not, in itself, result in playback or copying per se; rather,
it was “Cablevision and its operation of an array of computer servers at the head‐end that actually made the
retrieval and streaming of the program possible.” The Court made a similar determination in American Broadcasting
v. Aereo (2014) when it held a live‐streaming subscription service in violation of right to perform to the public.
Despite its more primitive technologies, Cablevision is factually similar to streaming cyberlockers, and Aereo is
virtually identical to live‐streaming cyberlockers; the only significant factual difference between companies in these
two cases and entities from the results section is that Cablevision and Aereo generated revenue from subscriptions
whereas illicit cyberlockers collect advertisement revenues and provide free access to videos.
The Cablevision Court recognized the platform service provider, and not the viewer, does the reproducing and
performing. Online viewers surf the internet to stream media in the same fashion that television viewers flip
through the channels. Since Napster, Courts have equated businesses that specialize in organizing and facilitating
massive online copyright to a simple flea market, where the cyberlockers are landlords who merely provide spaces
for people to rent out, and the uploaders are the ones directly responsible for the infringing files found on their
accounts just as vendors in a bargain mall bear primary responsibility over what their shops sell. The current
construction stands in contrast to the Court’s own grievances about the situation for copyright holders who seek
remedy against millions of individual infringers.
The American Court’s present approach does not stand up to scrutiny. The legislature could not have passed a law
to: first, target millions of individual uploaders and downloaders scattered across the country or world depending on the
case; and only secondarily apply to a commercial entity who orchestrates the entire retrieval and viewing process, but
only inasmuch as a Court could elucidate because the Act itself would not contain any explicit mention of contributory
or vicarious liability. The flea market analogy may have had value in the early years of the internet, but no longer are
there any factual similarities. No swap‐meet nor collection of them could ever facilitate the reproduction, distribution,
and performance of copyrighted works at the scale witnessed online. When cyberlocker companies are raided, the
compelling evidence is locked away in computer hard drives; warehouses are full of servers, not DVDs and CDs. Owners
of real property cannot fudge their identities on deeds as cyberlocker owners do with Whois registrant info. Renters in
physical markets get their incomes from product sales, not from third‐party advertisements placed in their booths. Flea
market visitors do not get to take whatever title they want to watch at home for free.
4.3 | Revising copyright acts and regulations

So long as internet users have open access to illicit cyberlockers, they should not be penalized for using a free service
provided to them by webhosting companies whose continued existence implies profitable dealings. To make matters fair
and equitable for as many parties as possible, legislation and judicial opinion ought to emerge which preclude any civil or
criminal action against any individual for their private, noncommercial use of streaming or direct download services.
Civil action against individual users should be limited to only those cases where there is commercial gain, and any
iteration of “swarm joinder” theory should be barred with the intent of requiring rights holders to litigate each such case
individually. Criminal enforcement should only be available against webhosting companies and entities which build and
operate sharing platforms. Damages should be multiplied in cases involving commercial entities, whom the statute
should require claimants to sue contemporaneously or before any individual commercial user.
Ensuring copyright in the digital realm requires a multitude of private and public enforcement options. Specific‐
file takedowns are an irreplaceable reactive measure, but proactive enforcement has greater potential to get the
train back on the tracks. As international law compels states to protect copyright to a greater degree, they can
implement website‐blocking statutes and establish new or redirect existing agencies to conduct surveillance and
cooperate with ISPs to block access to infringing sites. States could also strategically suspend net‐neutrality rules
so ISPs could more easily restrict access to infringing sites independently. Since incomplete Whois registry
information prevents law enforcement from identifying potential culprits (Sterbenz, 2014), blocking statutes would
ideally require complete and verifiable Whois registrant information for all sites operating within a State. Updating
Whois registrant ID requirements would reduce confusion in most cases and give some leads in others, making it
easier for States to force ISPs to block sites and pursue criminal charges against site owners. Whois, GoDaddy,
Internet Corporation for Assigned Names and Numbers (ICANN), and others could likewise update registrant
information requirements to include a government‐issued picture ID and a verifiable address.
Yet another option for nations is claiming extraterritorial jurisdiction more liberally, arguing a compelling State
interest in actively protecting the works of its citizens, but such maneuvering comes with the caveat of lengthy
extradition proceedings. The MegaUpload case has shown how criminal extradition proceedings can become protracted
even when dealing with a close ally (U.S. v. Kim Dotcom, 2012; Ortmann v. U.S ., 2018). Pundits have also argued the U.S.
Alien Tort Statute (28 U.S.C. §1350, 2006) could offer extraterritorial jurisdiction in civil cases involving foreign
copyright‐owners whose works have been infringed in a foreign territory. This method would substitute the American
Court for an international forum—the Court would hear cases involving foreign plaintiffs and defendants, and facts
occurring outside the United States (Cook, 2007). Unfortunately, extraterritorial criminal enforcement is not a globally
scalable option due dual‐criminality requirements. For example, countries that have not fully implemented TRIPS may
not have criminal remedies available for copyright infringement, thereby making extradition a relative impossibility.
Rada (2019) reported Eritrea, Turkmenistan, and San Marino provide no copyright protection while laws in Somalia,
Kiribati, Sao Tome and Principe, Tavalu, Vanuatu, and Nauru lack sufficient clarity to determine whether and to what
extent copyright is protected. In scores of other countries, copyright is technically protected under law and treaty, but
infringement in physical markets and online is still rampant, giving the impression that the law does not recognize and
enforce authors’ commercial rights. OECD (2016) reported the value of global trade in counterfeit and pirated goods for
the year 2013 reached nearly $500 billion, or 2.5% of global imports, and most of the goods originated in middle income
and emerging economies, with China the top producer. The Business Software Alliance (2018) surveyed prevalence of
unlicensed software use in over 100 countries and found rates in high‐income economies for years 2011–2017 hovered
around 20–25%, compared with 37–42% average worldwide and 50–85% in lesser‐developed countries. While the
developed world may lead the charge toward primarily legal media, they cannot force other sovereign nations to take
specific legal actions.
States may also prefer to vest greater responsibility in the private sector that has the greatest financial interest
in the market. Just as the U.S. Congress revised copyright laws in response to new CATV technologies in Fortnightly,
the European Union revised its Directive on Copyright in the Digital Single Market (2019, at art. 17) in seeming
response to unfettered online piracy. The updated Directive provides that online content‐sharing service providers
perform an act of communication to the public when they give users access to copyright‐protected works. Under
the European system, YouTube and other content providers are obliged to scan their systems for unauthorized use
of media, and to take steps to prevent infringement over their systems. Digital video fingerprinting technologies
currently exist that companies can use to ensure their servers are free of pirated content (Tecxipio, 2019).
Additionally, States could redirect some of their cyber‐resources to enforce copyright, and they could reduce their
costs by seeking civil forfeiture of company assets as available under 18 U.S.C. 981 or similar statute. A best‐case
scenario would include a joint public–private initiative to collect, store, and manage digital copies of every
copyrighted video, and to continuously develop software that scours the internet comparing files and flagging
infringements. Both commercial entities and governments could demonstrate their intentions toward copyright in
the virtual world by proactively monitoring the internet and removing or blocking files and sites that clearly
infringe rights to reproduction, distribution, or transmission to the public.
Copyright legislative amendments such as the revised EU Directive offer hope in the fight, but international
enforcement is still problematic due to registration requirements. The American Supreme Court affirmed the
registration requirement in Fourth Estate v. Wall‐Street.com (2019) where facts showed a delay on the part of a
copyright office could prevent legal action against infringers. A reasonably updated registration requirement may
include fee waivers such that financial positions of artists do not significantly impact their rights, and ideally there
should be clauses providing for exceptions to the rule that a registration must be complete and approved by
copyright office before filing suit; authors and artists should be able to seek remedies against infringement of their
works as such infringements arise rather than after a pause due to registration technicality.
4.4 | Alternative dispute resolution

Another component is required to erect a globally scalable solution set for copyright holders—a bona fide international
forum for private copyright owners to seize or shut down sites. Copyright holders involved in multijurisdictional cases
face disagreements among Courts depending on lex loci and registration status. ICANN’s Uniform Dispute Resolution
Process (UDRP) has been a successful tool against cybersquatting on domain names. Domain name disputes are
trademark issues covered under treaties and laws pertaining to industrial property, which copyright is not, but the
UDRP shows an internationally recognized system of takedowns is already in place. Lemley and Reese (2004) analyzed a
sample of 10,000 cases over 3 years which showed UDRP is fast and cheap, with average resolution time of just over 1
month and costs of $1,200–$1,500; they recommended a compulsory dispute resolution mechanism for copyright
infringement, particularly in high‐volume commercial cases, structured like the UDRP for domain name trademark
disputes. If a dispute resolution mechanism similar to UDRP were available, aggrieved parties could make a complaint
seeking an arbitral award blocking a site or enjoining it from further business activity. Arbitral awards are internationally
binding under the Convention on Recognition and Enforcement of Foreign Arbitral Awards (1959), which compels
Courts in 159 countries to recognize and enforce awards.
A best‐case scenario would include a process jointly administered by WIPO and ICANN, whose blocking and
enjoining awards would be expedited through domestic regulations, ensuring swift takedowns, ISP blocking, and
service injunctions. WIPO and ICANN could administer international databases of copyrighted works which
agencies in WIPO member countries would update as registrations accumulate over time. With sufficient
investment and operating capital, WIPO and ICANN could jointly oversee a range of automated and manual
services aimed at gathering data and information pertinent to the mission of online copyright protection, such that
when complaints arise, the forum would preferably have a frame of reference in disputes concerning content made
available via the public internet. Nations and their agencies could work in conjunction with the private sector to
collect, store, manage, and share a digital media fingerprint directory. Given current and forecasted technologies,
such an ADR mechanism could be launched for global use with ease so long as privacy rights, censorship, and other
related issues are sufficiently pondered and mitigated in the course of its development.
5 | CONC LU SION
Contemporary international law and CIL were born out of necessity in the 20th century—a time of unparalleled
growth and development, and likewise unparalleled violent conflict and bloodshed. But as the “long peace”
continues (Marshall, 2019), nations must shift increasingly more of their attention away from military matters; they
must come to know economic and trade issues as paramount; this global political pivot away from State conflicts
and toward private business activity must coincide with magnification of private rights, to wit: online copyright. As
States shift their focus away from defense and en route for trade, so too must international law and CIL evolve to
contemplate more issues of private right, namely: mutual recognition and enforcement of intellectual property
rights irrespective of owners’ or infringers’ nationalities.
Since the 1960s, new electronic modes of signal transmission have emerged and became dominant forces in
entirely new global online markets. Pirate streaming cyberlockers today provide virtually the exact same service as
legitimate broadcasters. In American Broadcasting v. Aereo (2014, at 2509), the Court explained that viewers have no
reason to care about the method of transmission since the purpose of their using a service is to view entertainment
media and nothing more. The channel or site is only the means, and so long as users can accomplish their goal of
streaming media, they have no concern for the details, just as they would if watching TV, cable, satellite, or CATV.
The companies discovered in this study have multimillion dollar valuations, and seemingly all of their operations
deal exclusively with infringing material. Under the current interpretation, any user‐uploader is the primary
copyright infringer despite lack of commercial intent or financial benefit while so‐called secondary infringers are
operating profitable businesses that appear to have little, if any, legitimate purpose aside from compiling databases
and directories of infringing media and providing unlicensed access to such media. Surely, current levels of piracy
are not what international organizations had in mind when they drafted treaties nor what legislatures had in mind
while promulgating copyright statutes.
This study showed that any user with a modicum of web‐savvy and a snippet of extra time to master the art of
popup warfare can substitute paid programming for unlimited, entirely free video. In a matter of years, these types of
services could be unavailable if States adopted dynamic, new approaches to copyright enforcement. Pirated media could
be absent from the average person’s internet feed by using the same channels and methods that keep the public
internet generally free of child pornography, terrorism, and other criminal enterprises. International cooperation is
fundamental in guaranteeing intellectual property protections to the extent that States visualized when they adopted
TRIPS, and to do so as thoroughly and diligently as domestic statutes require. But to accomplish the objectives States
set out for themselves, they must engage in a process of self‐criticism, inquiry, and rapidly transform their views on
copyright in the online context. This study pointed out areas of concern and offered potential remedies, but no progress
shall be witnessed unless States strengthen their will and put forth a great deal more effort toward reclaiming copyright
from the clutches of cyber‐criminals. Until States own up to their failures and rotate from their current position,
infringing media online shall remain just a point and click (and popup ad) away.
OR CID
Adam R. Tanielian http://orcid.org/0000-0001-6275-2409
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AUTHOR BIOGRAPHIES
Adam Tanielian is an educator and researcher. He completed a bachelor’s degree in business at Michigan
Technological University and a bachelor’s in math at Mayville State University. Adam completed postgraduate
studies the Institute of International Studies at Ramkhamhaeng University, where he earned a master’s in
business and doctorate in international law. His doctoral dissertation focused on arbitration in international
intellectual property disputes. He continues to conduct research on intellectual property disputes with a focus
on piracy and counterfeiting in both online and physical markets.
Pakinee Kampan is a law student at Chulalongkorn University in Bangkok, Thailand. Her research profile
includes multiple areas of Thai law, including intellectual property.
How to cite this article: Tanielian AR, Kampan P. Saving online copyright: Virtual markets need real
intervention. J World Intellect Prop. 2019;1–21. https://doi.org/10.1111/jwip.12131

Saving Online Copyright: Virtual Markets Need Real Intervention

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Saving Online Copyright: Virtual Markets Need Real Intervention

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DOI: 10.1111/jwip.

Saving online copyright: Virtual markets need

Adam R. Tanielian1 | Pakinee Kampan2

J World Intellect Prop. 2019;1–21. wileyonlinelibrary.com/journal/jwip | 1

1.1 | Copyright in the legal context

1.2 | Interests of copyright holders versus web developers

1.3 | Companies caught between demand and supply

1.4 | “Safe harbor” protection for cyberlockers

T A B L E 1 Television and movie directory data

3.3 | Live‐stream directories

Popup opens to User or security

Cyberlocker welcome page User or security

FIGURE 1 Sample viewing process flowchart

T A B L E 3 Live‐streaming site data

3.5 | Advertisements, harmful sites, malware, and security threats

T A B L E 4 Sports site data

3.6 | Video and audio quality

4.1 | Copyright and customary international law (CIL)

4.2 | Rethinking Court opinions

4.3 | Revising copyright acts and regulations

4.4 | Alternative dispute resolution

Adam R. Tanielian http://orcid.org/0000-0001-6275-2409

Berne Convention for Protection of Literary and Artistic Works. (1886).

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