Online piracy involves the use of the internet to distribute and copy copyrighted materials.   Materials that are typically “pirated” include movies, television shows, music, electronic books, video games, computer software, and photographs.   As described by one source, the term online piracy is used by both opponents of online piracy, and the people who engage in or benefit from piracy.  “Opponents, such as the Recording Industry Association of America, use the term to attempt to equate copyright violators with the pirates of the high seas who plundered ships.  Proponents use the term to recollect the romanticism of the pirate lifestyle, with its stressing of individual freedom and liberation among all else.”

On January 5, 2012, federal prosecutors charged two companies and seven individuals in a massive online piracy sting in the federal district court for the District of Virginia.  The charges relate to the online operations of Megaupload.com, a website that purportedly distributed copyrighted content, including videos, music, electronic books, software, and images.   According to law enforcement, the website generated more than $150 million in revenues by allegedly distributing copyrighted material on the internet, and diverted the money to various individuals and corporate entities around the world.  The website also allegedly generated another $25 million in revenue through the sale of advertising space on its websites.

The defense that the alleged conspirators will likely raise in this case is that they did not charge people for downloading copyrighted content; rather, they merely acted as a “cyberlocker,” providing their users with storage space for electronic content.  According to the company, their premium members are merely given access to more online space and faster and more reliable download and upload connections.   This defense is supported by the fact that an individual cannot search for copyrighted content directly on the website and can only find content stored on the website through third party websites and search engines that are not operated by members of the alleged conspiracy.  Moreover, members of the alleged conspiracy have stated that they comply with federal laws requiring the removal of copyrighted content after notice is given.

The individuals charged in the “Mega Conspiracy,” have been charged with racketeering in violation of 18 U.S.C. Section 1962(d).  The predicate criminal acts for the racketeering charge, with which the alleged conspirators have also been charged, include copyright infringement in violation of 18 U.S.C. Sections 2319(b)(1) and 2319(d)(2), and 17 U.S C. Sections 506(a)(1)(A) and 506(a)(1)(C), and money laundering in violation of 18 U.S.C. Sections 1956(a)(1)(A)(i), 1956(a)(2)(A), 1956(h), 1956(f), and 1957.  If convicted, the alleged conspirators face up to twenty years in prison on the racketeering charges,  five years in prison for each charge of copyright infringement, and up to twenty years in prison on each of the money laundering charges.

This case comes amidst the debate in both congress and the public regarding the proposed Stop Online Piracy Act, (“SOPA”) and the Protect Intellectual Property Act (“PIPA”).  Some members of congress believe that additional legislation is required to further criminalize online privacy, arguing that the laws currently on the books are not effective enough in stopping piracy.  Opponents of SOPA and PIPA argue that the laws currently on the books are adequate to protect intellectual property, and the passage of these new laws would seriously affect websites with legitimate user-provided content, such as Wikipedia, Facebook, and Twitter.  The legislation, if passed, would make these websites targets of law enforcement and content creators if they unknowingly host content that is copyrighted.   Moreover, the government would be able to simply shut down or block websites who are allegedly providing protected content, which would encourage leaders in authoritarian countries, who already engage in the practice of blocking internet content.

The article is written by New Jersey criminal defense lawyer Nace Naumoski.