We all know that recorded music and motion pictures, from major chart-toppers and blockbusters to indie recordings and art house films, hit P2P and torrent services quickly after release, and sometimes prior to release. All lead to billions in losses, harming the hundreds of people employed on each targeted recording or movie. Prerelease piracy is particularly harmful in this age of fast bandwidth and home theaters, denying artists even the window of the initial release period. That's why Congress a few years back clarified that prerelease was a serious criminal offense.

So it was noteworthy that last week the U.S. Attorneys' Office for the Eastern District of Virginia successfully prosecuted a prerelease conspirator. Barry Gitarts, 25, of Brooklyn, was convicted in Alexandria, Virginia, and faces up to five years in prison, a fine of $250,000 and three years of supervised release as well as being required to make full restitution.

Gitarts was part of the music piracy group Apocalypse Production Crew that was quite active. We all know how a song or movie that has been digitized for awhile travels through shared networks; multiple participants have it in their shared folder, either by downloading it or uploading it from another source such as a CD or DVD, and others download the copies from them. But how does a prerelease song or movie start distributing?

There are different ways the work is first propogated online, and as it turns out there is a stiff competition among these conspirators to be the first to post. That competition drives some significant criminal activity beyond the online posting of prerelease works, but it appears the Department of Justice chose not to pursue any of those activities in this case. Still, the lengths to which these conspirators will go to post works before their release date makes it all the more difficult to pursue them, and such a case can take time; Gitarts was active in this network from 2003 to 2004, and he has been convicted four years later.

These networks are sophisticated; once someone succeeds in becoming the first to post a file, word spreads quickly through lower tiers, and within hours an untold number of copies are seeded throughout the Internet. There's no going back at that point; the proverbial horse is out of the barn door.

Some would say that in this digital age we should throw up our hands and say, "You can't keep the horse in the barn. The horse may have once been your property, you may have spent a lot of time and money breeding and raising it, but it's gone now, and there are now as a result of its escape an infinite number of horses running around just like it. Thanks for giving us the horse, we think it's great and that's why we're all obtaining copies of it; now figure out how to recoup your investment in a way that doesn't involve the horse, the very industry you're in."

Hmm. Maybe I could sell T-shirts with the horse's picture on it?

No one said the Internet doesn't pose challenges. It poses significant challenges. But that doesn't mean copyright itself needs to be abandoned. We need more criminal enforcement of copyright. We need to send the signal that just because a work can be copied doesn't mean it has no value, that even if the marginal cost of distribution is zero that fixed costs should be ignored, or that once a creative work is being pirated it should be written off as lost.

I'm grateful to the federal government for its efforts in this case. I wish they had done more to promote the conviction, and I wish such prosecutions came with more regularity. But for now, I won't look a gift horse in the mouth. 

This entry was posted on Wednesday, May 28th, 2008 at 8:46 am by Patrick Ross and is filed under copyright law, p2p, piracy. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.