“Perhaps, though, the anti-piracy measures we’ve seen are working. After all, Google has said that it gets over a million Digital Millennium Copyright Act takedown requests per day. A recent PC Pro report notes that US BitTorrent traffic had dropped by 20 percent over the course of six months last year. What’s more, it says that unique visitors to The Pirate Bay dropped dramatically between 2012 and 2013, from 5 million to 900,000 by last year’s end.
“This can likely be attributed to how easy it’s become as of late to access content legally. It’s no mistake that Netflix offered UK customers episodes of Breaking Bad’s final season the day after they aired in the US. Or, that it’s pushing to stream movies the same day they arrive in theaters. Same goes for Hulu Plus’ entire business model of streaming shows the day after they air.
“Sure, you’re going to have a minority of folks who’ll pirate anything and everything as their own means of anarchy, but for the most part, by offering an all-around better legal experience (not having to worry about downloading a virus; better video quality) most people aren’t going to bother pirating in the first place.”177
So it may be that the major push in the criminal justice arena has shifted away from going after the book, film, and music pirates, given the growing private alternatives to reduce piracy—from lawsuits to restrictions on piracy websites, and in some cases using the pirates to help promote and market one’s books. And perhaps another reason is the shift in focus to digital piracy of software and mobile apps, which have had a high rate of illegal app downloads for years—perhaps as high as 60 percent of these apps have been illegally downloaded.178
For example, in January 2014, the Justice Department filed its first criminal charges against the people accused of being behind popular Android piracy websites—Snappzmarket and Appbuket—which offered large catalogs of free app downloads. By downloading these apps, individuals could avoid paying for premium apps on Google play. Originally, the two sites were seized by the government in 2012, and after assembling the case, the government charged four men with a conspiracy to commit criminal copyright infringement, providing a maximum sentence of five years in prison. In the course of the investigation, the government found that between May 2011 and August 2012 the site allegedly facilitated one million illegal downloads worth $1.7 million, and in one chat log between the head of Snappzmarket, Kody Peterson from Clermont, Florida, they found Peterson and his conspirators agreeing to ignore DMCA copyright takedown requests.179
And since then the Justice Department has been investigating other potential mobile app pirates rather than leaving it up to copyright holders to use the traditional civil suits or cease-and-desist letters to shut down the sites hosting copyrighted movies, music, computer software, as well as books. The rationale is to protect the legitimate app developers. Or as the acting head of the Justice Department’s criminal division, Mythili Raman, put it: “These crimes involve the large-scale violation of intellectual property rights in a relatively new and rapidly growing market.”180
So this seems to be the new focus of criminal justice prosecutions in Internet piracy cases. In short, there is a continuing crackdown on piracy as a crime. But for the most part this criminal crackdown doesn’t involve books.
CHAPTER 21
The FBI’s Role in Combatting Internet Piracy
GIVEN THE GROWING THREAT OF online book piracy in the United States as well as globally, a number of government agencies are taking steps to stop this, though since 2013, these prosecutions of the pirate sites seem to have slowed down. This is perhaps due to other priorities, the extensive time and effort required to pursue a piracy case in the courts, the vast number of pirates, and the increasing use of private efforts to reduce piracy, such as the takedown notices and the delisting of pirate sites in search engines.
Though now mired in appeals and court arguments, the FBI raid on Megaupload and Kim Dotcom with the help of the New Zealand police, one of the more high-profile efforts, shut down the biggest storage locker. The raid also raised the issue of whether a website can blindly allow its site to be used by others who are illegally uploading and downloading infringed-upon files to evade civil liability and criminal responsibility, since many services combine legal and illegal uploads, making the policing problem even more difficult.
Despite this shift to private actions to reduce piracy, among the law enforcement agencies that have participated in the anti-piracy battle are the FBI and its Internet Crime Complaint Center (IC3), the National White Collar Crime Center, the Bureau of Justice Assistance, and the National Intellectual Property Rights Coordination Center, as well as the Department of Homeland Security and the Immigration and Customs Enforcement Agency. While much of the attention has focused on other types of online piracy, such as movies, games, business software, and music, these law enforcement operations can easily go after book pirates, too.
Following is an overview of what the different agencies are doing in the battle against piracy, and how victims and other citizens who know of piracy violations can report them. This first section deals with the efforts of the FBI.
The FBI’s Internet Crime Complaint Center has played a central role in pursuing the Internet criminals. The Center was created in 2000 as a partnership between the FBI, the National White Collar Crime Center (NW3C), and the Bureau of Justice Assistance (BJA). As described in the IC3 2012 crime report, the IC3 “has become a mainstay for victims reporting Internet crime and a way for law enforcement to be notified of such crimes.” These reports are forwarded on to the federal, state, tribal, local, and international agencies that are working together to combat Internet crime, including book piracy. According to the IC3 report, the IC3 received and processed 289,874 complaints, averaging more than twenty-four thousand complaints per month, with unverified losses up 8.3 percent over the previous year (http://www.fbi.gov/news/pressrel/press-releases/ic3-2012-internet-crime-report-released).
In another approach to stopping piracy, the FBI created an FBI Anti-Piracy Warning (APW) Seal, which all copyright holders can place on their books and other copyrighted materials, including films, audio recordings, electronic media, software, and photographs. The purpose of the seal is to remind media users about “the serious consequences of pirating copyrighted works.” Individuals can simply download the file to put it on their material.
Previously, after designing the seal in 2003, the FBI required anyone using it to sign a memorandum of understanding (MOU) agreement for using it, and it worked out agreements with five associations—the Motion Picture Association of America (MPAA), the Recording Industry Association of America, (RIAA), the Software and Information Industry Association (SIIA), the Business Software Alliance (BSA), and the Entertainment Software Association (ESA)—to use the seal. But beginning on August 12, 2013, the FBI allowed all copyright holders to use its seal without executing a written agreement. However, if you use the seal, it should be placed next to the following authorized warning language enclosed by a plain box border that states: “The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by fines and federal imprisonment” (http://www.fbi.gov/about-us/investigate/white_collar/ipr/conditions-regarding-use-of-the-fbi-anti-piracy-warning-apw-seal).
While anyone with a copyright can now use the seal, it cannot be used to indicate the FBI’s approval, endorsement, or authorization, and it cannot be used on any work whose production, distribution, sale, public presentation, or mailing would violate US laws, such as pornography. Thus, pirates can’t simply put the seal on their own work to claim it is protected with this warning. Rather, to cite the FBI’s statement, the seal “simply serves as a widely recognizable reminder of the FBI’s authority and mission with respect to the protection of intellectual property rights.” But the seal offers no protection beyond a warning, so a copyright holder should use any other industry-recognized copyright
protection techniques to discourage copying, such as registering a copyright with the US Copyright Office.
According to the FBI, this APW Seal program is part of a larger anti-piracy effort, which the FBI is conducting independently and in partnership with other federal agencies and the National Intellectual Property Rights Coordinator Center (IPR Center). A goal is increasing public awareness of “the issues related to copyright piracy and other intellectual property theft,” since the FBI has made investigating and preventing IP theft a top priority. The reason, as the FBI states, is that “Intellectual property rights theft is not a victimless crime. Because of piracy of media and other commercial goods, US businesses lose millions of dollars each year, threatening American jobs and negatively impacting the economy …. and often times, it fuels global organized crime.” So now the FBI, along with the US Attorney’s Office, has been pursuing those who violate these laws by reproducing or distributing copyrighted work, with or without monetary gain, and such crimes can be punished by fines and federal imprisonment (http://www.fbi.gov/about-us/investigate/white_collar/ipr/anti-piracy).
The verdict on the Megaupload case is still out, but the FBI has had some notable successes in the past in cracking down on intellectual property crimes. For example, in Operation Fastlink, a major Department of Justice initiative to combat online piracy worldwide, the US Attorney’s Office secured sixty felony convictions as of March 6, 2009. To this end, the Operation, conducted by the FBI along with the US Attorney’s Office for the District of Connecticut, and the Criminal Division’s Computer Crime and Intellectual Property Section (CCIPS) executed over 120 search warrants in twelve countries and confiscated over $50 million worth of illegally copied business software, games, movies, and music from illicit distribution channels.
As an example of its success, the defendant in its sixtieth prosecution, Bryan Thomas Black of Waterloo, Illinois, pleaded guilty in March 2009 to one count of conspiracy to commit criminal infringement of a copyright for his participation in a multinational software piracy organization. When sentenced, he could face up to five years in prison, a $250,000 fine, and three years of supervised release (http://www.fbi.gov/newhaven/press-releases/2009/nh030609b.htm)—a common penalty for copyright infringement.
In a more recent case, a Florida man pleaded guilty to nine felony counts of a twenty-eight-count case for unauthorized access to protected computers to engage in wiretapping and wire fraud and unauthorized damage to protected computers. In doing so, between November 2010 and October 2011, he hacked into the email accounts of celebrities, including Scarlett Johansson and Mila Kunis, by taking the victims’ email addresses, clicking on the “forgot your password?” feature, and resetting the victims’ passwords by correctly answering their security question using publically available information on the Internet. Then, while in exclusive control of the victims’ email accounts, he was able to access all of their emails, and he found email addresses of potentially new hacking targets from their contact lists. Additionally, he used the forwarding feature so he got a duplicate copy of all incoming emails to the victims, including any attachments, and even after the victims regained control of their accounts, he continued to get copies of their emails and attachments for weeks or months. He even hacked into some accounts again when a victim reset his or her password. Then, as his hacking scheme grew, he used a proxy service called “Hide My IP,” since he knew his hacking was illegal and wanted to “cover his tracks” to prevent law enforcement officials from tracing the hack back to his home computer. Ironically, even after law enforcement agents used a federal search warrant and seized his home computers, but before his arrest, he used another computer to hack into another victim’s email account. As a result, he obtained numerous private communications, photos, and confidential documents, including scripts, business contracts, letters, drivers licenses, and social security information. Afterwards, on several occasions, he sent emails from the hacked accounts to the victim’s friends, posing as the victim to request more private photos. After downloading many of the confidential documents and photos to his home computer, he emailed many of the stolen photos to others, including another hacker and two gossip websites. The result was that some of these photos, including some explicit ones, ended up on the Internet.181 After nine months in custody, he was sentenced to ten years in federal prison, and is required to pay $66,179 in restitution.182 While he wasn’t specifically involved with book piracy, his theft did involve some scripts, and it reflects the way any kind of hack can reach far beyond stealing book files to anything in a private email. This opens up the door to still further access to everything in an individual’s life or within a company, as reflected in the aforementioned Sony hack.
While it appears that other FBI cases dealing with the Internet since 2013 have not involved book, film, or music piracy—at least according to their weekly press releases about current cases—the FBI has cracked down on the sharing of trade secrets. This could, under circumstances, apply in a book, film, or music piracy case if a company’s strategy for developing, marketing, or promoting the book was compromised. For example, in a more recent February 2013 case, former Silicon Valley engineer Suibin Zhang was convicted on five felony counts of the theft of Marvell Semicomputer’s trade secrets. Zhang had downloaded those secrets onto a laptop provided by his new employer, the Broadcom Corporation, which happened to be Marvell’s chief competitor, when he was employed as a Project Engineer at Netgear, giving him access to Marvell’s secure database. Using his Netgear account, he downloaded dozens of documents, datasheets, hardware specs, design guides, application notes, board designs, and other confidential and proprietary items. He was found guilty at a two-and-a-half-week trial lasting from October 24 to November 9, 2011, and was eventually sentenced on February 25, 2013, to three months in prison, followed by a three-year term of supervised released, which included two hundred hours of community service. Plus, he was ordered to pay $75,000 in restitution to Marvell Semiconductor by May of that year.183
Though these more recent cases aren’t directly focused on book, film, or music pirates, they do show the FBI’s continued efforts to fight intellectual property crimes on the Internet, such as in investigating cases of obtaining confidential information from private emails or from company databases. In turn, such arrests and convictions can help to make many people think twice about engaging in piracy, because they risk not only civil litigation but criminal prosecutions. At times, the battle against piracy may seem like a “whack-a-mole” approach that involves a lot of time and expense to take down just one of a great many bad actors, who are readily replaced by still more intellectual property pirates. But at least the effort to go after the worst of the worst may help to take some of the pirates out of circulation for a time. This sets an example of the potential dangers of piracy and contributes to dissuading some pirates, just as some of the efforts in the private sector can contribute to reducing the damage of piracy.
CHAPTER 22
How Two Crime Centers Are Taking On the Pirates
BESIDES THE FBI, A NUMBER of other organizations are a part of the growing fight, including the National White Collar Crime Center (NW3C) and the Internet Crime Complaint Center (IC3). Others include the Bureau of Justice with its Intellectual Property (IP) Theft Enforcement Program and the National Intellectual Property Rights Coordination Center (IPR Center).
Much of this increased effort dates back to two key developments: the passage of the Prioritizing Resources and Organization for Intellectual Property Act of 2008, and the 2010 Joint Strategic Plan on Intellectual Property Enforcement. As described in an Intellectual Property Theft white paper (http://www.nw3c.org/docs/whitepapers/intellectual_property_theft_september_201008B6297ECEB4FAE7EAA79494.pdf?sfvrsn=3), the 2008 Intellectual Property Act greatly increased both the civil and criminal penalties for trademark and copyright infringement. It also dramatically increased the role of the federal government in policing intellectual property issues by creating an organiza
tional framework to support the United States’ interest in protecting the rights of intellectual property holders throughout the world. As stated in the paper:
“The act established a separate enforcement division with the United States Department of Justice, created a representative position within the executive branch on all IP enforcement matters, and provided United States embassies with intellectual property representatives abroad to protect the IP interests of corporations internationally.”
Through these strategies, the act was designed to enable the federal government to better enforce and maintain intellectual property law through divisions in the government dedicated to these issues.
Then, in 2010, the United States government issued a Joint Strategic Plan on Intellectual Property Enforcement outlining a national plan to combat both domestic and international IP piracy, along with fraudulent products. A special concern was the pervasiveness of these illegal acts over the Internet. The many US government organizations that have sprung up and taken a more active approach to fighting online piracy can trace their roots to these initiatives.
One of the most active of these organizations is the National White Collar Crime Center (NW3C), which describes itself as a “nationwide support system for law enforcement and regulatory agencies involved in the prevention, investigation and prosecution of economic and high-tech crimes,” which include book piracy. The Center’s primary tasks include providing training in computer forensics, cyber and financial crime investigations, and intelligence analysis. Among other things, the Center helps other agencies in investigating white collar and related crimes, including by conducting original research. It also partners with the Internet Crime Complaint Center (IC3), which enables the victims of cybercrimes, including book piracy, to report these incidents to law enforcement (http://www.nw3c.org).
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