[This is a version of a letter I sent to the Senate Subcommittee on Intellectual Property today to call attention to various discrepancies in the proposed witness list, especially the presence of the Pirate Party at a hearing at the world’s greatest deliberative body. And typically, Julia Reda never disclosed her affiliation. Why so secretive?)
I want to thank the Subcommittee on Intellectual Property for holding the referenced hearing. Digital piracy is of ongoing concern to all contributors to the creative community be they photographers, film makers, authors, songwriters, musicians or featured artists. This is particularly true after catastrophes like the cancellation of SXSW in the Live Music Capitol of the World. Creators very often feel overwhelmed by the forces that use the Internet and the U.S. banking system to unlawfully extract value from their copyrights. Digital piracy seems to benefit everyone in the piracy supply chain except the creators of the works driving these racketeering operations.
Unfortunately, the hearing witness list seems to indicate an overwhelming influence of Google and Google proxies as well as a representative of the Pirate Party. However gloomy this turn of events may first appear for creators, it presents an opportunity for the Subcommittee to question the witnesses about the influence of Big Tech on efforts to reign in pirate operations, particularly off shore pirate operations. I raise a few points of reference that I hope may prove useful to the Subcommittee and respectfully ask that you request that this letter be made a part of the Subcommittee’s record for the hearing.
Off Shore Pirates Profit by Interfering in US Markets
Unlike the historical pirates who were declared hostis humani generis under admiralty law, or the modern pirates who hijack cargo ships such as the Maersk Alabama and are stopped by Operation Allied Protector, digital pirates defy the nation state relatively openly and brazenly. Digital pirates leverage anonymity, geography and extradition treaties to wrap themselves in the laws they cherry pick and use as loophole-driven alibis. They also engage in lawfare and have organized political movements from Kim Dotcom’s Internet Party to the Pirate Party. Pirates also embrace a host of academics and corporate legal departments that push their views. For example, Stanford hosted a July 2007 Pirate Party cash-preferred political fundraiser for anonymous donors that also had stops at the Googleplex[1] and the O’Reilly conference. The examples go on and on.
Despite the penetration of streaming services, music piracy is still a major problem for creators. According to the IFPI, “forty percent of Internet users access unlicensed music content.”[2] The Subcommittee’s focus on the issue is of great public policy importance.
There is a long history of pirate websites locating themselves outside of the United States but marketing themselves to U.S. users in a deceptive manner that makes it difficult for consumers, including both consumers and brands, to distinguish an illegitimate site from a legitimate one. As the UK’s Serious Organized Crime Agency warned advertisers, “By incorporating advertising from recognized brands the website administrator attempt[s] to make the site appear legitimate.”[3]
This practice is most pronounced with sites that profit from U.S. content by selling advertising or subscriptions to enrich themselves from trafficking in pirated works.[4] There is a continuing controversy regarding the source of the advertising[5]published on these illegal sites coming from Google entities through various intermediaries and resellers[6] as well as the use of the banking system to fund the pirates.[7]
The leading torrent site to this day is The Pirate Bay which has a recent Alexa rank of the 169th most visited site on the Internet.[8] Founded in Sweden 17 years ago[9] contemporaneously with the Pirate Party, The Pirate Bay personifies the off-shoring of piracy and has been consistently mimicked by hundreds of other pirate sites such as YTS.It, 1337x, RARBG, NYAA.si, Torrentz2, EZTV.io, LimeTorrents, FitGirl Repacks and Tamil Rockers. Pirate streaming sites follow the same offshoring practice and are an even bigger source of piracy than torrents.
These pirate sites invariably purport to wrap themselves in the DMCA safe harbors but locate themselves in havens outside of the U.S. that are well outside the reach and resources of creators forced to play the Superbowl of international whack-a-mole. These pirate sites have no intention of subjecting themselves to the jurisdiction of U.S. courts but want the benefits of U.S. law, all the while marketing themselves in the U.S. in direct competition with the creators, including creators, whose works they steal.[10]
The digital pirates’ fascination with creating these offshore “pirate utopias” (or “Temporary Autonomous Zones” or “TAZ”) dates back to the 1991 hacker’s handbook by the anarchist Peter Lamborn Wilson entitled “The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism.”[11] Julian Assange promoted the idea of a TAZ-type “offshore publications center” for Wikileaks in the 2009 document “Here be Dragons: Going from Defense to Attack.”[12] Assange proposed Iceland as an offshore center and pirate utopia that would allow Wikileaks to operate freely. Birgitta Jónsdóttir, a founder of the Iceland Pirate Party,[13] was one of the sponsors of the “Icelandic Modern Media Initiative”[14] that would have essentially codified Assange’s goals and is gradually coming to fruition at the Icelandic Parliament. Again, the idea was to establish an off-shore haven for activity that would otherwise be illegal—a geographical safe harbor or TAZ well beyond the legislative safe harbors that largely accomplish the same purpose inside major economies like the United States in the name of protecting “intermediary liability” for the largest corporations in commercial history.
Pirates embrace the nation they spurned once they get caught. Companies like Megaupload[15] located themselves in Hong Kong but put up a smokescreen of complying with the DMCA notice and takedown procedures while marketing themselves in America. They often use the U.S. banking system to receive illicit payments from users or advertising revenue from companies like Google and Adbrite.[16] Even in the handful of cases where copyright owners are able—at great expense beyond the means of most creators–to get these massive infringers in front of a U.S. judge such as with the Panamanian company Hotfile,[17] the defendant tries to wrap themselves in the protection of the DMCA safe harbor.
The Justice Department’s well-known experience with trying to extradite the Megaupload conspirators since 2012 is a prime example of the lengths to which these brazen racketeering organizations will go to avoid U.S. justice while simultaneously claiming the protection of U.S. law. If the Megaupload conspirators ever do find themselves before Judge O’Grady, they will no doubt seek the protections of the DMCA because they argue Megaupload is “just like Google.” In fact, Google submitted an amicus brief in the Hotfile case arguing that massive infringers should be protected by the DMCA—which makes Google’s shadowy presence at the Subcommittee even more telling.
Drafters of the DMCA would probably never have thought of themselves as creating a pirate utopia, but the safe harbor concept is near and dear to the Pirate Party, its backers and supporters. Statutory safe harbors—or protection from “intermediary liability” as Google might call it–are more than a little reminiscent of the TAZ. It is thus striking that the Subcommittee is to hear from Julia Reda, the long-time representative of the Pirate Party in the European Parliament, as well as so many other beneficiaries of Google’s support.
Pirate Party Witness Will Offer Big Tech’s Anti-Copyright Propaganda
I find it hard to understand why the Subcommittee has invited a leader of the European Pirate Party to testify at a hearing devoted to learning from efforts to reign in digital piracy in other countries. I also find it rather odd that Ms. Julia Reda failed to disclose her German Pirate Party association in her public witness biography or her witness statement when last accessed today, which is ambiguous at best and misleading at worst. And typical of the duplicity we have come to expect from her.
Ms. Reda was the sole representative of the Pirate Party in the European Parliament for many years.[18] Her Pirate Party affiliation is directly relevant to her testimony. The Pirate Party, as the name implies, is closely tied to promoting piracy using the tiresome shibboleth of “sharing culture” in the words of Ms. Reda, or conversely the equally empty vessels of making copyright “progressive” and “fit for the future,” or simply the vague “access to knowledge” meme favored in Open Society Institute circles.[19]
Or just make international copyright even weaker—to the great detriment of the property rights of creators already under attack from multiple sources. [20]
It also must be said that Big Tech has tried for years to get creators to believe that digital piracy actually helps artists and songwriters because it drives fans to shows and movie theaters. Digital music services would have us believe that the artist data they can generate helps with routing tours and that benefit makes up for low royalties. However implausible that assertion is, if there’s no touring or touring is severely cut back due to public health concerns, then both piracy and the income transfer to pirates becomes even more important to all creators.
The Pirate Party has had a close connection to the notorious criminal infringer The Pirate Bay. In fact, the Pirate Bay’s co-founder Peter Sunde ran for the EU Commission Presidency on the Pirate Party slate at the time of his arrest, conviction and imprisonment in Sweden for massive copyright infringement.[21] The Pirate Party reportedly offered to host the Pirate Bay on the servers of the Swedish Parliament.[22]
According to Wired Magazine,[23] the Pirate Bay inspired the creation of the Pirate Party in 2006—regardless of whichever came first, the two are synonymous today. The connection between piracy and the Pirate Party is abiding and sustained over a generation. Indeed the German Pirate Party’s youth operation—“Junge Piraten”—is devoted to the ongoing generational transfer of its goals.[24] Anyone who observed the Pirate Party’s tactics in the recent European Copyright Directive debate at the European Parliament should have no doubt that Ms. Reda is a dedicated opponent of copyright and an equally dedicated supporter of piracy masquerading as “sharing culture” or “progressivism.”
Plus, it must be said that Ms. Reda’s efforts to stop the Copyright Directive were as close to Google’s own lobbying effort as one is to two. This includes such extreme tactics as spamming MEPs, lobbying the children of elected officials through Twitter to try to persuade their parents to oppose the Copyright Directive (sometimes referred to as #Article13) and promoting the #saveyourinternet spamming and Twitter bot campaign along with Google and particularly YouTube.[25] Google was caught spamming Members of the European Parliament on the Copyright Directive by the Times of London in an independent investigation. According to The Times, “Google is helping to fund a website that encourages people to spam politicians and newspapers with automated messages backing its policy goals[,] intended to amplify the extent of public support for policies that benefit Silicon Valley[.]”.[26] This may sound reminiscent of what the U.S. Congress was subjected to during SOPA.
Given Google’s éminence grise at the hearing, it is no surprise that of all the elected representatives who the Subcommittee could have invited, it is Ms. Reda who finds her way into the U.S. Senate. Reda-watchers assume she will be dining out on the platform afforded her in the Senate for years to come. Hopefully, Ms. Reda does not intend to export her European Parliament lobbying tactics against Senators in the United States.
Google Dominates the Subcommittee Witnesses
It is also striking that Google is so well-represented among the witnesses at the Subcommittee’s hearing—yet its name is never mentioned. Texans are asked to pay no attention to who is behind the curtain. A little bit of research reveals the connections.
Professor Smith’s own Carnegie Mellon biography[27] lists four separate research grants from Google. The Carnegie Mellon Privacy and Security Lab received a $1,050,000 cy pres award[28] in the controversial Google Referrer class action as well as a $350,000 cy pres award in the Google Buzz settlement.
Google is a leading member of the Computer and Communications Industry Association[29] which is a frequent critic of artist rights advocates and a reliable amicus brief for Google’s extreme business practices alongside NGOs like the Electronic Frontier Foundation, R Street and Engine Advocacy.
Daphne Keller is a former Google senior lawyer responsible for Google’s crown jewel of search and now works as “Director of Intermediary Liability” at the Stanford Center for the Internet and Society PACS.[30] The Center was itself was launched with at $2 million gift from Google.[31]
As Ms. Keller well knows, Google’s own Transparency Report[32] shows the company has received over 4 billion DMCA takedown notices for infringing material in Google search alone. This is what is meant by “intermediary liability” (or more appropriately, no liability for self-defined “intermediaries”). Is there another company in commercial history that when told it has infringed 4 billion times views the same ongoing infringement technique as a feature not a bug? Does anyone believe that Google’s search algorithm is not behaving foreseeably exactly as designed due to lack of resources, complexity of scale or any other reason? Or is Google instead distorting every possible safe harbor loophole and copyright exception to maximize its profits by maximizing the value gap? Google would no doubt argue that the reason they receive so many takedown notices is because of the scale of Google’s monopoly operation–which is like the arsonist arguing that they should be excused from punishment because they light a lot of fires. Perhaps fighting digital piracy begins at home.
Both Professor Samuelson’s Berkeley Center for Law and Technology and the Samuelson Law, Technology and Public Policy Clinic received $500,000 and $200,000 respectively from Google as part of the controversial Google cy pres awards recently called into question at the U.S. Supreme Court in the Frank v. Goes case.[33] Of course, Google is a major benefactor of the Berkeley law school. Professor Samuelson is a prime mover[34] in the American Law Institute’s controversial end run around the Congress with its nascent “Restatement of Copyright” as the Subcommittee well knows.[35]
And if Ms. Reda’s past devotion to piracy were not evidence enough, she is now associated with the Berkman Center, which itself has received sustained corporate funding from Google including $500,000 and $750,000 in two separate cy pres awards from Google in controversial class action settlements.
As the sole connection to a foreign government whose practices are evidently intended to inform the Subcommittee, Ms. Reda seems an odd choice, certainly when there is no countervailing representative of which there were many (such as MEPs Helga Truepel or Axel Voss or Commander Karen Baxter of the City of London Police).
I hope that some of this information may prove useful to you in questioning the witnesses on behalf of creators and in achieving the goals of the hearing.
[1] Rick Falkvinge, Google TechTalks available at https://www.youtube.com/watch?v=08gfh_6sbQI
[2] Tackling Music Piracy available at https://ifpi.org/music-piracy.php
[3] Criminal Finance from Third Party Advertising on the Internet, [UK] Serious Organized Crime Agency Alert A2A725N (Nov. 2012).
[4] U.S. Remains the Top Traffic Source for Pirate Sites, Torrentfreak (Mar. 1, 2020) available at https://torrentfreak.com/the-u-s-remains-top-traffic-source-for-pirate-sites-200229/
[5] Note that Google’s Chrome browser promotes a browser extension that blocks ads and banners on thepiratebay.org https://chrome.google.com/webstore/detail/remove-ads-from-pirate-ba/imkpamgpfalmdaikobnkefcmmkpgljjd
[6] Starting in 2019, the City of London Police Intellectual Property Crime Unit coordinates with the Trustworthy Accountability Group in “Project Brand Integrity” that alerts advertisers when their ads are published on pirate sites by ad network sellers and resellers. TAG and Creative Future has operated a similar program in the U.S. since 2016. Press Release: Trustworthy Accountability Group Launches New Anti-Piracy Initiative to Protect European Brands, City of London Police (Feb. 12, 2019) available at http://news.cityoflondon.police.uk/r/1194/trustworthy_accountability_group_launches_new_ant
[7] European Union Intellectual Property Office, Money Laundering and Copyright Policy (Sept. 4, 2019) available at https://euipo.europa.eu/knowledge/enrol/index.php?id=3550 (“[A] significant stream of new case law in Europe developed in Europe, dealing with interesting elements of the online infringing models as well as with the relationship between online piracy and other associated crimes, as money laundering.”).
[8] Top 10 Most Popular Torrent Sites of 2020, Torrentfreak, available at https://torrentfreak.com/top-10-most-popular-torrent-sites-of-2020-200105/
[9] The Pirate Bay, Wikipedia, available at https://en.wikipedia.org/wiki/The_Pirate_Bay
[10] Joint Supplemental Comments Of The American Association Of Independent Music And Future Of Music Coalition In Response To Request For Empirical Research, Copyright Office, In the Matter of Section 512 Study, Docket 2015-7 (2015)(Study shows that over 70% of respondents fail to enforce their rights due to lack of resources).
[11] The Temporary Autonomous Zone, Wikipedia available at https://en.wikipedia.org/wiki/Temporary_Autonomous_Zone
[12] Wikileaks Release 1.0, YouTube available at https://www.youtube.com/watch?v=VWNfIvG4z-g&feature=emb_logo
[13] Birgitta Jónsdóttir, Wikipedia available at https://en.wikipedia.org/wiki/Birgitta_Jónsdóttir
[14] Icelandic Modern Media Initiative, Wikipedia available at https://en.wikipedia.org/wiki/Icelandic_Modern_Media_Initiative
[15] Jonathan Bailey, Megaupload’s DMCA Shell Games, Plagiarism Today (January 23, 2012) available at https://www.plagiarismtoday.com/2012/01/23/megauploads-dmca-shell-games/
[16] Indictment and Summary of Evidence, United States v. Kim Dotcom and Megaupload Limited et al, at 34 (Crim. Case No. 1:12CR3, E.D. Va. 2012).
[17] Hotfile, Wikipedia available at https://en.wikipedia.org/wiki/Hotfile
[18] Ms. Reda promotes herself as “My name is Julia, I’m the Pirate in the European Parliament” and does to this day on her website juliareda.eu
[19] Pirate Party founder and Bitcoin promoter Dick Greger Augustsson also known under the alias Rick Falkvinge says “The events unfolding now will not just crumble today’s power structures, but put them in the kitchen blender and set it to ‘Disintegrate,’ happily leaning against the kitchen counter with one hand on the blender lid while leisurely whistling folk songs.” Access to Knowledge in the Age of Intellectual Property(Information Program of the Open Society Institute, available at http://www.soros.org/initiatives/information/focus/access/articles_publications/publications/age-of-intellectual-property-20101110/age-of-intellectual-property-20101110.pdf); see also “Bitcoin will Hit $5 million—Rick Falkvinge” available at https://www.youtube.com/watch?v=vdPWnYnpEOw and “Right on the Money: Bitcoin hits $3,000 or 1000x my entry point six years ago” Falkvinge on Liberty (June 11, 2017) available at https://falkvinge.net/2017/06/11/right-money-bitcoin-hits-3000-1000x-entry-point-six-years-ago/
[20] A recent large study of 1,564 independent musicians based in Austin sponsored by the City of Austin documented that 44% of respondents stated digital music sales “Contributes None” to their income. Titan Music Group LLC, The Austin Music Census 27 (Fig. 5) (June 1, 2015) available at https://www.austintexas.gov/sites/default/files/files/Austin_Music_Census_Interactive_PDF_53115.pdf.
[21] Julia Reda, Solidarity with Peter Sunde, Julia Reda Blog (May 2014) available at https://juliareda.eu/2014/05/solidarity-with-peter-sunde/
[22] Duncan Geere, Pirate Party to Run Pirate Bay from Swedish Parliament, Wired (July 5, 2010) available at https://web.archive.org/web/20100708152621/https://www.wired.co.uk/news/archive/2010-07/5/pirate-bay-swedish-parliament
[23] Special Report: The Pirate Kings of Sweden, Wired (Aug. 17, 2006) available at https://www.wired.com/2006/08/a-nation-divided-over-piracy/?tw=wn_index_13
[24] Young Pirates (Germany) Wikipedia https://en.wikipedia.org/wiki/Young_Pirates_(Germany)
[25] Le Tatou, Ce Qu’on Ne Vous Dit Pas Sur l’Article 13 (What No One Tells You About Article 13) YouTube (Dec. 12, 2018) available at https://www.youtube.com/watch?v=fAdhXb1NR_o
[26] Matthew Moore, Google Funds Website the Spams for its Causes, The Times of London (August 6, 2018).
[27] Available at https://mds.heinz.cmu.edu/bio-vita/
[28] See, e.g., Roger Parloff, Google and Facebook’s New Tactic in the Tech Wars, Fortune (July 30, 2012) available athttps://fortune.com/2012/07/30/google-and-facebooks-new-tactic-in-the-tech-wars/ (“If the Electronic Frontier Foundation, the nation’s preeminent digital rights nonprofit, had disclosed last year that it received a cool $1 million [cy pres] gift from Google — about 17% of its total revenue — some eyebrows might have been raised.”).
[29] Google Trade Associations and Membership Organizations available at https://services.google.com/fh/files/misc/trade_association_and_third_party_groups.pdf
[30] Available at https://pacscenter.stanford.edu/person/daphne-keller/
[31] Available at available at https://news.stanford.edu/news/2006/december6/google-120606.html
[32] Google Transparency Report available at https://transparencyreport.google.com/copyright/overview
[33] The Google Street View class action settlement is also being opposed by nine state attorneys general as well as a class objector. Objection of David Lowery, In Re Google LLC Street View Electronic Communications Litigation (Civ. Case No. 3:10-md-02184 N.D. Calif. S.F. Div. Jan. 20, 2020).
[34] Letter from Pamela Samuelson to Director of American Law Institute (Sept. 12, 2013) available at https://musictechpolicy.files.wordpress.com/2018/02/letter-re-ali-council-010918.pdf
[35] Letter from Chairman Thom Tillis, Sen. Ben Cline, Reps. Deutch, Roby and Rouda to Director of American Law Institute (Dec. 13, 2019) available at https://musictechpolicy.files.wordpress.com/2019/12/tillis-et-al-letter-to-ali-re-restatement-of-copyrights.pdf
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