Thursday, August 26, 2021

Congress and the President Should Act to Combat Online Piracy

Here's the way that the Wall Street Journal's August 25th story, "Hollywood Movies Flood Piracy Sites Hours After Release" begins: "Millions of people are watching high-quality, pirated online versions of Hollywood’s top movies sooner than ever after their releases, undermining potential ticket sales and subscriber growth as the industry embraces streaming."

The WSJ story details the extent to which the Disney hit "Black Widow" appeared worldwide on leading piracy sites shortly after its theater and streaming release. And the article recites the facts and figures relating to the piracy of other recent film hits.

If you think the increasing epidemic of pirated movies (and music too!) doesn't matter, think again.

There are many such corroborative reports, but a recent study, released after a year-long investigation by the online consumer safety group Digital Citizens Alliance, reveals that the bad actors who operate in the illegal underground market for pirated movies, TV shows, and other forms of content theft are reaping an estimated $1.34 billion in annual revenues through advertising on websites and illicit streaming apps. In other words, piracy is a "big business."

The tangible harm resulting from massive online theft is obvious. The financial rewards realized by legitimate creators, producers, and distributors of content will be diminished and this will limit the amount of content created, produced, and distributed. To the extent that pirates can reap huge illicit financial gains from their theft, the financial rewards available to the law-abiding will shrink. And so will the incentives to create, produce, and distribute all manner of content.

However significant the adverse impact from piracy of movies, music, and other online content – and it is – there is another, perhaps less immediately tangible, adverse impact that is equally important. The continued escalation of pirated intellectual property – that is, the willful stealing of others' property – undermines the rule of law and respect for the Constitution's protection of copyrighted works. The Founders included the Copyright Clause in Article I, Section 8 of the Constitution to secure what they understood to be a fundamental inalienable natural right in the protection of property, in this instance, intellectual property. The Founders understood, and the Constitution incorporates this understanding, that every man and woman possesses a natural right to enjoy the fruits of his or her own labors.

For much more on the constitutional imperative for government to secure the protection of copyrighted works, please see "The Constitutional Foundations of Intellectual Property – A Natural Rights Perspective," co-authored with my Free State Foundation colleague Seth Cooper. There, you'll find a deep – but I think interesting! – dive into the historical, philosophical, and jurisprudential principles underpinning the Constitution's Intellectual Property Clause. You'll discover that the case for securing copyrights is not just a pragmatic or utilitarian one, but, more fundamentally, a moral imperative.

And for much more on the extent of online piracy, the harm it causes, and recommendations of specific measures that Congress and executive branch officials should take to combat it, please see this sampling of recent Free State Foundation papers by either Seth Cooper or both of us.

"Fighting Online Piracy Will Boost the American Economy and Jobs" (June 29, 2021)

"Congress Should Modernize Digital Copyright Law to Protect Americans' Content" (May 28, 2021)

"Copyright Law Needs Modernization, Not a Restatement" (March 5, 2021)

"Congress Must Modernize Copyright Law to Curb Mass Online Theft" (November 5, 2020)

"Congress Should Preserve Anti-Circumvention Rights: The Online Market for Movies and Music Depends on DMCA Section 1201" (October 6, 2020)