Fighting the legal battle against piracy: Experts at Anti-Piracy Conference

[Len]

Litigation can be costly, lengthy and at times yields little by way of deterrence. The remedy, the speakers on the legal panel at the BroadcastPro ME’s Anti-Piracy Conference held on May 2, in Dubai’s Ritz Carlton Hotel, insisted, is more engagement with governments and courts, not less.

In 2016, the administrator of a UAE-based website was charged with illegal streaming of copyrighted content. The punishment included a $13,600 fine, six months in jail and deportation. While this is decisive action, the size of the problem facing content owners is enormous. According to estimates by the International Data Corporation, TV piracy – through the use of illegal set-top boxes (STBs), unauthorised VPN subscriptions and torrent downloads – costs a whopping $750m in losses to content owners and rights holders across the MENA region every year.

The second panel discussion at the anti-piracy conference hosted by BroadcastPro ME was titled: ‘Addressing Piracy from a Legal Point of View’. Media Consultant and moderator Eric MacInnes, opened by saying: “The object of this panel is to dig deeper and explore what content creators and rights holders can do from the legal and enforcement perspectives.

“What is the recourse to the law?” he asked the panel, composed of Omar Obeidat, Partner and Head of Intellectual Property at law firm Al Tamimi & Co; Aditya Verma, Senior Legal Counsel at OSN; and Waleed Mahboub, Content Director at Diwan Videos.

“It will depend on a case-to-case basis,” said Verma. “whether it is a subscriber who has pirated content, or a pirate IPTV service, or a trademark infringement, and so on. As a first step, we analyse where this piracy is coming from and then we work with our internal content protection and security team to gather as much evidence as possible, and subsequently we involve authorities and external counsel.

“We can pinpoint the location of pirates in certain cases. Evidence needs to be simplified to be presented to authorities, and that is a challenge, but over time we have fine-tuned the process.”

“In terms of litigation, does it vary by territory or country?” MacInnes asked Omar Obeidat of Al Tamimi.

“Fortunately, internet piracy is governed by copyright laws within the purview of which it is a crime,” he responded. “This is a good thing because you get to prosecute the offender with harsh penalties. Presenting evidence and establishing copyright can be a challenge in certain countries. Sometimes you need to go through detailed documentation, so it can be tedious to put together a criminal case. As a legal practioner, our strategy is always to look at bringing the strongest case.

“We don’t however rely on the copyright law alone. Our strategy has always been to try a case as an electronic crime, where jail terms are higher than for copyright crimes. Also, the remedies you would have as a content owner are much better if the infringement is deemed an electronic crime. Whether it is a torrent site or the selling of illegal set-top boxes, we still try to present the case as an electronic crime. How do we do that? There must be some sort of electronic deal between the trader who sells the STB and the customer, by way of online subscriptions or online payments. That is enough for a case to be built as an electronic crime.”

The onus of gathering evidence is on the prosecution, Obeidat said.

“Onus is always on the content owner. You have to prove that you are the owner and what you are attempting to prosecute is an infringement. Sometimes there are administrative remedies that are better than litigation, especially if you don’t have enough investigation and intelligence-gathering resources. Based on the strength of your case, you take the call.”

MacInnes then turned to Waleed Mahboub, Content Director at Diwan Videos, a Dubai- and Cairo-based multi-channel network (MCN) and media production company. He asked him: “As a director of content, how attractive does mounting a legal case sound?”

“Frankly, it is a long process,” admitted Mahboub. “The best-case scenario is six months to hunt down pirates, accompanied by monetary loss for content owners and broadcasters. However, there is another factor to this piracy ecosystem. Torrent sites are being funded by advertising. I am sure advertisers are not aware as to where their brands are showing – it is a decision typically taken by a digital media agency based on traffic and CPM. This is another element in the fight against piracy that we can pursue. Big advertisers have legal departments, so they are easy to talk to. If we manage to stop advertisements to these sites, we cut their resources.”

According to a study in 2017 by the US-based Trustworthy Accountability Group (TAG), anti-piracy steps taken by the digital advertising industry have reduced ad revenue for pirate sites by 48-61%, recognised as notable progress against the $2.4bn problem of content infringement.

“Would you go after advertisers?” Macinnes asked Verma of OSN.

“This is really an issue of collaboration,” Verma responded, highlighting the underlying question of working with other stakeholders. “A lot of collaboration is happening right now. We work with studios and organisations around the world, including Interpol and Europol. We work with technology providers such as Google and Facebook. Collaboration, however, is a voluntary act, and that is where the challenge lies. Simultaneously the law is evolving and catching up in this region and we have had some good judgements.

“We need to be creative in our approach, from collaborating to simplifying complex piracy cases with the help of external counsel. One of the other things we also do is ensure that we create awareness not just with the consumers, but also with the authorities. So we have regular workshops in countries such as the UAE, Kuwait, Jordan, Egypt and KSA, and it is an ongoing process because we need to keep up with the pirates.”

“Is the perception fair that IPR laws in the region are not as advanced as they could be?” asked MacInnes.

“I would not blame the laws,” Obeidat stressed, adding that they are in keeping with international agreements. Attendees at the conference had earlier raised the issue of lax enforcement and certain cultural issues where domestic copying in the Middle East is often justified in the light of “standing up to Western hegemony”.

Obeidat continued: “Most countries in the region are signatories to international IP agreements that they signed in the late 1990s and early 2000s. There are cultural issues, however. How do you speak to a judge who does not find this [copyright infringement] terribly wrong, although the law says it is a crime? So the judge will rule the minimum, which could be a slap-on-the-wrist penalty ranging from $500 to $5,000.”

Obeidat admitted that the penalty was often small compared to the cost of litigation but reiterated that cost was not a primary concern when fighting pirates. Seconding that sentiment, Mahboub said: “In matters of piracy, we should not look at it from the balance-sheet point of view. When I am trying to stop my content from being seen for free, it should not matter how much I pay for litigation.”

Obeidat stressed the need for deterrence while being creative in the battle against piracy.

“If we are looking at small-timers selling illegal STBs, we would advise an administrative approach. But if this is a major pirate that has a network, you would want to prosecute the individual or company as a criminal. We have seen this happen both in Kuwait and the UAE with removal of servers, confiscation of equipment and so on. We must prosecute the whole way and try to convey a message of deterrence that as content owners, we will not tolerate such infringement. We must craft the best route possible as well. While in Jordan, we have approached the National Library of Jordan, which is the legal deposit and copyright library for Jordan. We approach the Economic Department in Dubai at the outset rather than the CID.”

Building on Obeidat’s call to be creative in approaching the fight against piracy, Verma recounted some specific instances.

“A lot of times the evidence is dynamic – it keeps changing and is often cross-border when ISPs are involved. With a torrent-based piracy case, we were able to present evidence in a simplified way and the case led to deportation, a fine of $55,000 (AED 200,000) and a six-month jail term. That case set the standard for us. It taught us as to how to approach the authorities, collect evidence and work as a team with them. There is a certain limitation imposed on us by law when it comes to investigating a crime, and that is why we make sure we work with external counsel. We have done this in the UAE and in Jordan.”

Obeidat warned against the industry taking an ‘I don’t want to bother’ approach to legal cases. “The law does not develop on its own. It needs litigants. For instance, if the industry does not bring cases of illegal online streaming, how would you expect the judiciary to develop its expertise in these areas?”

Besides the judiciary playing catch-up, Verma built on his earlier point about the complex nature of piracy itself.

“Defining jurisdiction is a challenge at times when you are looking at dynamic, cross-border evidence. Do we have any protection? Is that particular jurisdiction suitable for us? We need to consider all these aspects. With FTA-related piracy and internet piracy, the crime typically travels across multiple hands and borders. It does not mean we can’t get them, and that’s where industry forums that comprise different stakeholders play a role.”

At this juncture, Macinnes chose to remind the audience that pirates are often teens or even pre-teens. “Would you prosecute a 12-year-old?” he asked. The question inspired a number of creative options far removed from jails, deportation and confiscation of equipment.

Obeidat spoke of the possibility of using ethical hackers to identify weak links in the content distribution chain and raised the issue of increasing awareness about the menace of piracy among the young. Mahboub questioned the windowing strategies adopted by the region’s broadcasters – the infamous time gap between the US premiere of popular television shows and their eventual broadcast in the region.

“My four-year-old boy does not understand the concept of waiting for content when he has ready access to content on his tablet. When a 12-year-old cannot find the latest Avengers movie in this region, he will go to a pirated source. Broadcasters should consider the timing of releases and make content readily available to an eager audience.”

While agreeing with both, Verma reminded the audience that piracy is not a victimless crime.

Striking a sombre note, he observed: “Regardless of who indulges in piracy, be it a business, adult or teenager, there are victims. We need to create awareness in society about the dangers of supporting illegal content. This is a crime that not only damages the economy of the country but also deters creativity.”

On what constitutes deterrence, there was a range of views, with Verma and Mahboub insisting that sufficient monetary compensation should be awarded to the aggrieved content or rights owner. Obeidat was of the view that jail terms were harsh penalties that would result in deterrence. However, punishments needed to be exemplary, they all agreed.

Obeidat said: “With statutory minimums, the court always rules the minimum unless you complement the crime with several other crimes such as pornography and so on. I agree with Aditya that there should be statutory damages awarded that are automatically paid, otherwise the content and rights owners are losing – losing with piracy, losing when they litigate, and losing when they see pirates resume their activities because they are not afraid. The judiciary needs to understand that the ruling or verdict must result in deterrence.”

Verma added: “When a judge presides over a court with nine hardened criminals awaiting trial, for instance, and one individual booked for an IP infringement, he could be mentally unprepared to provide equally harsh penalties on IP infringement as his perspective is influenced. Ideally, the government should ask the industry as to the problems we face and seek solutions from experts, and that could probably help in guiding the judges in terms of the interpretation of the law.”

As the panel discussion drew to a close, Mahboub urged the industry to think laterally and monitor pirate websites. Netflix famously adopts this not-so-new concept to track what is being illegally downloaded on BitTorrent and pirate sites, to work out what content they should be acquiring.

Drawing on the regional relevance of the strategy, Mahboub said: “If the source of piracy is a country where regulation is difficult, and these sites are accessible through VPNs, we will never be able to stop piracy 100% unless we convince these countries to criminalise pirates. Monitoring illegal websites for traffic offers insights that will help in the acquisition of content. This is especially helpful for those who do not have sufficient funds to acquire a wide range of content. By understanding what is trending, the window for the release of a title can be adjusted. The moment we see a ripped title, we can offer it at lower price points and eventually we discourage the trend of pirating content.”

Obeidat cautioned against any unilateral initiatives by the industry.

“My advice is to involve the CID. Investigation by private citizens is not permitted, even if your content is being pirated. You need the approval of authorities – you don’t want to be an accessory to a crime.”

Lastly, to the suggestion that the MENA region needs specialist judges who understand IP, Obeidat said the move could backfire by creating silos of expertise.

He observed: “I am all for judges who are informed, but I am also for developing the entire judiciary and elevating the system to better tackle the menace.