Wednesday, March 02, 2016


It's been a very long while since I have written about piracy.

I honestly can't tell you whether that fact is due to complacency, saturation, or de-escalation.

The rhetoric certainly seems calmer from the film industry. The legal announcements more sporadic.

But still, I can't help but wonder. Are the pirates still sailing?

Wild haired and free, scarred from the skirmishes but still traversing the hidden alcoves of the entertainment internet with impunity?

Have the despots been cornered on a tiny island, surrounded by the armed fleet of the copyright holders?

Or did they slip away, covertly, like Keyser Soze?

My, how the sands have shifted.

As far back as 2007, torrenting uber-site 'Pirate Bay' launched a campaign to buy the Principality of Sealand for US$2 billion dollars. The idea was to own their own sovereign nation, free of the copyright laws of the world.

Ingenious, I'll concede that.

When that didn't work, the Pirate Bay operators moved their servers to a former NATO nuclear bunker in the Netherlands.

If the idea was to avoid appearing like Bond villains...

Amidst all of this skulduggery, however, the discourse on piracy shifted.

In 2011, the idea of piracy as a positive 'promotional tool' for films floated into the debate. Faced with the mammoth task of pilfering mindshare from the studio blockbusters (with their gargantuan marketing budgets) indie filmmakers began suggesting piracy can assist small films in finding niche audiences.

The catch?

These pirating audiences don't pay for the viewing pleasure.

No matter, said a representative of one of the most pirated shows, 'Game of Thrones', in 2013. The "cultural buzz" the pirates provide is why the top shows survive and thrive, even if they're not paying for it.

Glad we cleared that up.

And indeed, in 2012, a legal professor from Rutgers University Law School even decried the notion of piracy as "theft". It was more like trespass, apparently, given theft is a 'zero sum' proposition in the eyes of the law. If I could still enjoy the use of something after you 'stole' it, as you can with a digital movie file, then it wasn't theft at all.


After years of brutal pugilism between the pirates and the industry, there still existed these huge masses of emotional and legal grey area in the debate. Which, I can only assume, is why The Pirate Bay still rode the crest of the torrenting wave in 2013, as the world's number one piracy website.

Faced with little success, the copyright holders tried a different approach. They targeted the Internet Service Providers (ISPs) instead, attempting to make them accountable for the pirating websites their networks enable.

The courts disagreed. ISPs, everywhere, rejoiced.

Tailwinds turned into a headwind. Dealt a severe blow, the entertainment industry's anti-piracy campaign began to lose momentum.

Public interest waned. The press followed. Occasionally an interesting story would bubble to the surface.

Like 'Mega-Upload' being forcibly shut down in 2012. Allegedly, this leads to increased business for paid, legal film downloads. The founder, Kim Dotcom, is arrested and charged.

In 2013, still a free man, Kim relaunches the site as 'Mega' and the legal wrangling continues.

In 2012, one of the founders of 'The Pirate Bay' flees to Thailand to avoid imprisonment. He is caught by Thai authorities in 2014 and sent back to a Swedish jail. He breathes free air again in June 2015.

Meanwhile, 500,000 people illegally download the finale of cult favourite Breaking Bad in 2013.


Eerie quiet.

The deep breath before the plunge.

Because in 2015, all hell breaks loose.

First, the film industry wins a landmark legal precedent over an ISP in Australia. The 'Dallas Buyers Club' case forces several ISPs to hand over the identities of customers they knew were sharing the film 'Dallas Buyers Club' online.

(Ironically, by this point the film is available on Australian Netflix anyway.)

Then, in late 2015, a Northern Ireland man is sentenced to four years in prison for running a website which facilitated illegal torrenting.

Oh, and HBO's goodwill towards pirates providing "cultural buzz"? By 2015, it had evaporated. Replaced with a steely-eyed rage, worthy of any antagonist in GOT.

Surely this was the surge that would end the war?

Not even close.

True to the form of any great swashbuckling pirate battle, the buccaneers rallied.

By early 2016, the epic victory of the 'Dallas Buyers Club' case had turned into a crushing defeat for the copyright holders. The presiding judge resoundingly rejected both proposals for follow-up action against the ISP customers who had engaged in piracy; including ruling against 'speculative invoicing'. Left with few options, the film industry lawyers dropped their case.

Shortly after, and still reeling from this rebuttal, the industry representatives were dealt another blow. In a move that stunned many observers, the newly developed 'three strikes scheme' for pirating ISP customers was abandoned. Supposedly, the expense of issuing infringement letters was more than it would cost to send the alleged pirates a DVD of the film they were stealing.

A fatal strike to the heart of the empire?

Somehow, beyond belief, no.

Absurdly, despite all common sense, momentum and logic, the film industry have launched YET ANOTHER return salvo.

Their new strategy is to attempt to block access to the websites which enable illegal downloading. In the last week alone, actions have been launched against Pirate Bay (yes, it still exists), Solarmovie, and Torrentz; among several others.


Just contemplating the history of this issue is enough to give you a brain aneurysm.

If it sounds like a quagmire of legalities, grudges, politics, greed, theft and crime...then I've only captured the half of it.

This is the non-violent equivalent of the Afghan-Iraq war. Nobody knows who the bad guys are, or how to extricate themselves from the conflict.

And worse, many civilians are caught in the crossfire.

It's a nightmarish siege that won't end. A sword fight between Jack Sparrow and Captain Barbossa, 'two immortals locked in an epic battle until Judgment Day and trumpets sound.'

Is there room to hope for peace?

The answer, surprisingly, may be yes.

Salvation comes in the form of hybrid distribution. Compromise will be required.

On one side, content will need to be made accessible and reasonably priced. On the other, takeup of the new options will have to supplant illegal downloading.

Is it possible?

'(As of May, 2015) Netflix, which already eats up the fattest chunk of downstream bandwidth, is taking an even bigger bite: The No. 1 subscription-video service accounted for 36.5% of all downstream Internet bandwidth during peak periods in North America for March, according to a new report.

Meanwhile, BitTorrent usage continues to decline as a percentage of total fixed-access bandwidth, and now accounts for only 6.3% of total traffic in North America — down from 31% in 2008.'

It doesn't end there. We have to branch out into even greater realms of creative distribution.

But won't disrupting the existing distribution models create larger problems and/or failures?

Let's check the real world example:

'Writer-director Andrew Haigh’s critically lauded drama '45 Years' has set a UK industry landmark by becoming the first film to cross £1m ($1.5m) at the UK box office after being released online the same day as in cinemas.'

Online and cinema coexisting. If this mix of distribution modes is possible, anything can be.

This piracy war has been long. It's been bloody. Both sides are weary of fighting, and no-one is any closer to victory.

It's time to change course.

The tools for change are there. The need for evolution has never been greater. We just need the will, the courage, and the leaders to guide the way.

The black flags are still at sea.

Do we really need to sink them? Or simply change their allegiance?

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