Berkley Law Writing Competition

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EASTERN PIRATES: FROM SHENZHEN TO BANGKOK, AN EXTRAJUDICIAL MODEL FOR
ENFORCING COPYRIGHTS IN ASIA
*
I. INTRODUCTION
A German backpacker sits in a hostel in Kuala Lumpur watching a grainy copy of
Guardians of the Galaxy recorded on a handheld camcorder and hardcoded with Russian
subtitles.1 A tout at MBK Center in Bangkok hands off a hard drive to a casual tourist containing
all 30 Rosetta Stone languages—a steal at only $2 given its retail price of $14,970.2 Across the
world in Los Angeles, a group of media executives is frantically meeting to discuss the loss of
$58 billion dollars in potential industry revenue that year.3 All the while, for nearly a decade,
half the software installed on Chinese computers has been an illegal copy. 4 What do the
executive, the tout and the backpacker have in common? They form a cycle of intellectual
property theft spurred on by social evolution in the digital age.
File sharing has outpaced law enforcement efforts for the past fifteen years,5 but the law
will soon adapt.6 The seemingly endless use of Peer-to-Peer (p2p) file sharing has abated in
* J.D. Candidate, 2016, Emory School of Law.
1 A “camrip” is a pirated video created by illicitly recording a movie with a camcorder. See Camrrip,
WIKTIONARY.COM (retrieved 1/8/15 1:26 PM). Films that appear in pirated versions on the Internet prior to their
release date are often recorded in this way. However, the quality of these releases tends to be poor and is generally
disfavored by video pirates.
2 Based on $499 MSRP per language set.Homepage, ROSETTASTONE.COM http://www.rosettastone.com/buynow
(last visited 10/17/2014).
3 Amy Chozick, A Clash Of Media Worlds (And Generations)N.Y. TIMES, January 22, 2012 abstracts. (“Debate
over antipiracy legislation between Silicon Valley and the entertainment industry [in 2012] may be a watershed
moment as the old media seemingly tr[y] to keep up with the Internet; both sides agree something has to be done
about online piracy, which costs the [U.S.] entertainment industry $58 billion annually.” (WLNR 2165680).
4 Software Pirates Rampant In Asia-Pacific Region,THE AUSTRALIAN,May 30, 2006 at Section 5 (quoting an
International Data Corporation study produced for the Global Association of Software developers). (“More than half
of all software installed on personalcomputers in the Asia-Pacific region [as of 2005] was an illegal copy,with
Vietnam, Indonesia,China and Pakistan among the worse offenders . . . .”). [2006 WLNR 9203362]
5 Scope of Piracy Online FAQ, Recording Industry Association of America, available at
http://www.riaa.com/physicalpiracy.php?content_selector=piracy-online-scope-of-the-problem (last visited October
19, 2014). (“Since peer-to-peer (p2p) file-sharing site Napsteremerged in 1999, music sales in the U.S. have
dropped 53 percent, from $14.6 billion to $7.0 billion in 2013.”).

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recent years 7 and torrenting may even soon begin a slow spiral toward extinction. The
Department of Justice’s indictment of the founders of torrent site Megaupload for criminal
conspiracy in 2012 is unprecedented in its time and may have alone significantly reduced online
piracy.8 At present, no international institution is alone strong enough to enforce copyrights
worldwide,9 but that is the industry focus. This paper suggests, without presuming to conclude
the answer, several alternatives for developing more effective enforcement mechanisms of
American copyrights in Asia and across the globe.
Among the ideas suggested by this paper are: a quasi-law enforcement model of private
agreements between American companies and foreign Internet Service Providers (“ISPs”);
Internet Protocol (“IP”) trackers that identify end-user pirates above a certain volume threshold;
identification of physical distributors with resultant litigation in foreign courts; blacklisting IP
addresses in cooperation with foreign ISPs; supplemental regional trade agreements building on
6 The demise of The Pirate Bay, the world’s largest and most sophisticated illegal file sharing website, during a raid
on servers in Sweden, is clear evidence of law enforcement’s bent to stem the tide of piracy. See Dave Lee, Pirate
Bay Goes Offline After StockholmPolice Raid,BBC NEWS, http://www.bbc.com/news/technology-30411782 (Dec.
10 2014 7:21 AM). Two co-founders of the website have so far been arrested in Southeast Asia,and Gottfrid Warg
was sentenced to more than three years in a Swedish prison. As law enforcement cracks down, punishment for
pirates is more frequently involving jail time. BBC NEWSASIA, Pirate Bay Co-Founder 'TiAMO' Arrested In
Thailand,http://www.bbc.com/news/world-asia-29895123 (Nov. 4, 2014 8:27 AM).
19, 2014). (“[A]lthough use of peer-to-peer sites has flattened during recent years, other forms of digital theft have
emerged, including unauthorized digital storage lockers used to distribute copyrighted music, streamripping
programs, and mobile applications that enable digital content theft.”).
8 Justice Department ChargesLeaders Of Megaupload With Widespread Online Copyright Infringement,
Department of Justice Criminal Press Release, 12-074 D.O.J. (2012). (“The conspirators’content hosting site,
Megaupload.com, is advertised as having more than one billion visits to the site, more than 150 million registered
users,50 million daily visitors and accounting for four percent of the total traffic on the Internet. The estimated harm
caused by the conspiracy’s criminal conduct to copyright holders is well in excess of $500 million. The conspirators
allegedly earned more than $175 million in illegal profits through advertising revenue and selling premium
memberships.”) [WL 9246664]
9 See generally Speech by Richard Cotton, Executive Vice President and General Counsel of NBC Universal, Our
Economic Future at Risk: Next StepsIn The Fight Against Intellectual Property Theft, reprinted in the American
Bar Association, CRIMINAL ENFORCEMENT OF INTELLECTUALPROPERTY RIGHTS(April 13, 2007). (“It is not news . .
. [that] despite many well-intentioned efforts and initiatives in both the public and private sectors,we are still
loosing ground . . . [IP] theft not only threatens to corrode the United States economy and the economies of other
developed nations,it also threatens developing countries whose interests need to be recognized and respected with
particular care.”)

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the work of the Digital Millennium Copyright Act10 abroad; promoting affordable alternatives to
online piracy through bloc-licensing modeled after Netflix, Hulu, and Amazon Instant; and
increasing cloud-based multi user licenses.
These kinds of practical solutions are badly needed given the ever-increasing scale of
online piracy.11 According to an internal report, in 2014 Google received 224 million DMCA
requests and removed 222 million results as a result of copyright infringement.12 Google’s
patented “Content ID” system, which detects copyrighted material, currently scans 400 years
worth of video every day.13 After identifying copyrighted material, Google gives copyright
holders the option to either remove their content or “claim” it by profiting from accompanying
advertising. 14 To date 300 million videos have been claimed by rights holders. 15 Google’s
methods are one clear indication of the innovation needed for industry adaptation and survival in
the face of technological change.16 This adaptation is part of natural market correction that also
occurred with the advent of radio, television, and now the advanced Internet.17
II. AN OVERVIEW OF COPYRIGHT LAW IN AMERICA & ABROAD
10 Universal City Studios,Inc. v. Reimerdes, 111 F. Supp. 2d 294, 315 judgment entered, 111 F. Supp. 2d 346
(S.D.N.Y. 2000) aff'd sub nom. Universal City Studios,Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). (“In 1996, the
World Intellectual Property Organization (WIPO), held a diplomatic conference in Geneva that led to the adoption
of two treaties, the Copyright Treaty and the Performances and Phonograms Treaty, as part of the Digital
Millennium Copyright Act.”).
11 Global music piracy alone causes $12.5 billion in economic losses every year, 71,060 U.S. jobs lost, a loss of $2.7
billion in workers' earnings,and a loss of $422 million in tax revenues,$291 million in personalincome tax and
$131 million in lost corporate income and production taxes. Stephen E. Siwek, The True Cost of Sound Recording
Piracy to the U.S. Economy, THE INSTITUTEFOR POLICY INNOVATION (Aug.21, 2007).
12 How Google Fights Piracy, Google Company Report Into Piracy 2014, available at
https://drive.google.com/file/d/0BwxyRPFduTN2NmdYdGdJQnFTeTA/view.
16
17

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One of the earliest attempts to codify copyright law in America appears in Article I Sec. 8
of the United States Constitution. The Constitution declares that the intent of the Copyright
Clause is to “[p]romote the Progress of Science and Useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”18 The
main principle is that the law should foster creativity and innovation by securing an individual’s
right to reap financial reward from their discoveries.19 This economic incentive leads people to
create new and innovative products and ideas.20
In the modern era, U.S. copyright law has seen three significant pieces of legislation, only
two of which remain relevant. The Copyright Act 197621 was passed in part as a response to the
development and proliferation of new modes of communication since the last major amendment
to American copyright law occurred in 1909. 22 The most recent legislation—and for our
purposes the only legislation of real consequence to online piracy—requires a preliminary
explanation.
Until the mid-1990s, while copyright infringement had occurred, the U.S. entertainment
industries had not yet experienced the wide scale of theft occurring today through online
piracy.23 The close of the second millennium saw a transformation in the content and technology
industries in a “[t]echnological revolution that [] disrupted long-established modes of creating,
distributing, and using works ranging from literature and news to film and music to scientific
18 US CONST. ART I, § 8, cl. 8.
19 Mazer v. Stein, 347 U.S. 201, 219 (1954). (“The economic philosophy behind the clause empowering Congress to
grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best
way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’”)
20 See generally Mazer v. Stein,347 U.S. 201, 219 (1954).
21 17 U.S.C. §§ 101-810.
22 Guide to the Copyright Act of 1976, U.S. Copright Office, pg. 6, Ch. 1 (Sept. 1977), available at
http://www.copyright.gov/reports/guide-to-copyright.pdf.
23 Scope of Piracy Online Fact Sheet,Recording Industry Association of America, available at
http://www.riaa.com/physicalpiracy.php?content_selector=piracy-online-scope-of-the-problem

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publications and computer software.”24 Of course, the benefit of the Copyright Clause of the
Constitution is lost if the right to profit from original works exists apart from the ability to
enforce that right at law or equity. Beginning in the twenty-first century, the decentralized nature
of the World Wide Web promoted anonymity and—for better and worse—made it difficult to
find and enforce copyright infringement by end-users.25 This ultimately led both artists and
corporations to seek intellectual property enforcement higher up the distribution chain where
major offenders could be identified and prosecuted.26 In response to these new channels of online
distribution, the most significant modern legislation affecting online piracy was drafted.27
The Digital Millennium Copyright Act28 (“DMCA”) was enacted on October 28, 1998. It
implemented certain provisions of two treaties drafted by the World Intellectual Property
Organization29 (“WIPO”) and is divided into five titles. In addition to implementing the WIPO
treaties, the DMCA looked at many emergent issues such as “the circumvention of copyright
protection systems, the integrity of copyright management information, and civil remedies and
criminal offenses and penalties with respect to copyright protection and management systems.”30
On the heels of the DMCA came the introduction of the Stop Online Piracy Act
(“SOPA”),31 thus far perhaps the most controversial U.S. attempt to stem the tide of piracy by
offshore websites located in countries with underrepresented enforcement regimes. SOPA was
hugely unpopular with a certain segment of the American population who favor “net-
24 ©OPYRIGHT IN THE DIGITAL ERA: BUILDING EVIDENCE FOR POLICY, National Research Council of
the National Academy of Sciences, at ix (2013).
the National Academy of Sciences, 17 (2013). (“[V]arious features of the Internet—such as the relative anonymity
of file sharers—have made copyright enforcement against end users difficult in many contexts.”).
the National Academy of Sciences, 17 (2013).
27 See generally 18 Am. Jur. 2d Copyright and Literary Property § 269.
28 Pub. L. 105-304, 112 Stat. 2860 (Oct. 28, 1998).
29 Universal City Studios,Inc. v. Reimerdes, 111 F. Supp. 2d 294, 315 judgment entered, 111 F. Supp. 2d 346
(S.D.N.Y. 2000) aff’d sub nom. Universal City Studios,Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).
30 18 Am. Jur. 2d Copyright and Literary Property § 269.
31 H.R. 3261 available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr3261ih/pdf/BILLS-112hr3261ih.pdf.

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neutrality.”32 The campaign to stop SOPA garnered eight million emails to the White House, two
million #sopa tweets, 10 million signatures in opposition to the Bill, and an “Internet blackout”
before being shelved by the House of Representatives indefinitely in January of 2012.33
a. The International Context
Advanced telecommunications and interlocking financial and logistics markets have
increasingly connected manufacturers and consumers, making this era in history a pivotal time
for the enforcement of intellectual property across the globe.34
Even before the digital age, fledgling international intellectual property protections were
in the works; though their drafters likely would not have imagined the progeny their work has
spawned.35 The Berne Convention for the Protection of Literary and Artistic Works (“Berne
Convention”),36 adopted in 1886, was the first major attempt to afford intellectual property rights
internationally, and was instigated by renowned French novelist Victor Hugo. 37 The Berne
32 Net neutrality refers to efforts to keep both access to and content on the Internet based solely on popularity. See
also Tim Wu, Network Neutrality,Broadband Discrimination,2 J. Telecomm. & High Tech. L. 141, 142 (2003).
(“The promotion of network neutrality is no different than the challenge of promoting fair evolutionary competition
in any privately owned environment, whether a telephone network, operating system, or even a retail store.
Government regulation in such contexts invariably tries to help ensure that the short-terminterests of the owner do
not prevent the best products or applications becoming available to end-users.The same interest animates the
promotion of network neutrality: preserving a Darwinian competition among every conceivable use of the Internet
so that the only the best survive.”)
33 See David G. Post, SOPA and the Future of Internet Governance, JUSTIA.COM (Feb. 13, 2012),
http://verdict.justia.com/2012/02/13/sopa-and-the-future-of-internet-governance; see also Jonathan Weisman, After
an Online Firestorm, Congress ShelvesAnti-Piracy Bills, N.Y. TIMES(Jan. 20, 2012) available at
http://www.nytimes.com/2012/01/21/technology/senate-postpones-piracy-vote.html?_r=0 (last visited Oct. 25,
2014).
34 See generally,Michael M. DuBose, Criminal Enforcement of Intellectual Property Laws in the Twenty-First
Century, 29 Colum. J.L. & Arts 481, 482 (2006). (“Market and technological developments have converged to
create an environment where the distribution of both legitimate and illegitimate goods flourishes. Economic freedom
is expanding, with seventy-two countries having free or mostly free economies--nearly twice the number of ten
years ago.”
35 Initial concerns of the Berne Convention focused on literary works, since the technology to record audio and
video had not yet been developed. Thus,the drafters of the Berne Convention would likely not have realized the far-
reaching impact of the IP enforcement foundation they had laid.
36 WIPO-Administered Treaties, Berne Convention for the Protection of Literary and Artistic Works, last amended
September 28, 1979, available at http://www.wipo.int/treaties/en/text.jsp?file_id=283698 (last visited Jan. 9, 2015).
37 Peter Burger, The Berne Convention:Its History and Its Key Role in the Future, 3 J.L. & Tech. 1, 11 (1988).

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Convention built upon the work of the Paris Convention for the Protection of Industrial Property
of 1883 (“Paris Convention”). 38 Early versions of the Berne Convention focused almost
exclusively on literary works and later revisions added protections for varying forms of
intellectual property including photographic and cinematographic works.39 America was initially
reluctant to join the Convention and did not become a member until March 1, 1989, when the
U.S. Berne Convention Implementation Act of 1988 40 was enacted, and the U.S. Senate
consented to ratification of the treaty, making the United States a party to the Convention.41 Both
the Paris and Berne Conventions would serve as the primary text for the adoption of the world’s
first widely accepted enforcement regime— the Trade-Related Aspects of Intellectual Property
Rights Agreement (“TRIPS”).42
Two years before the DMCA took effect in the United States, the World Trade
Organization (“WTO”) adopted the landmark TRIPS agreement, which established minimum
threshold requirements for intellectual property protections afforded WTO members. 43 The
agreement relied heavily on the language of the Paris and Berne Conventions and effectively
“A new International Association,initially comprised only of authors and presided over by Victor Hugo, convened
in 1878 and adopted five resolutions that eventually became the foundation for the original Berne Convention of
1886.”
38 See Records of the Conference Convened in Paris (1896), reprinted in WIPO-Administered Treaties, Berne
Convention for the Protection of Literary and Artistic Works 136-43, last amended September 28, 1979, available at
http://www.wipo.int/treaties/en/text.jsp?file_id=283698 (last visited Jan. 9, 2015).
39 Peter Burger, The Berne Convention:Its History and Its Key Role in the Future, 3 J.L. & Tech. 1, 15 (1988). “The
basic structure of the Berne Convention has remained relatively unchanged throughout each of the five revisions and
two additional acts; the scope of authors’rights has, however, increased markedly. The original Convention
provided an explicit, but not exclusive, list of works to be protected.”
40 Pub.L. 100–568.
41 Irvin Molotsky, Senate Approves Joining Copyright Convention,N.Y. TIMES available at
http://www.nytimes.com/1988/10/21/arts/senate-approves-joining-copyright-convention.html (Oct. 21, 1988)(last
visited Jan. 9, 2015). “After more than 100 years, the Senate approved American participation in the Bern copyright
treaty [] in an action that will help Americans protect their copyrighted material abroad.”
42 See Agreement on Trade-Related Aspects ofIntellectual Property Rights, April 15 1994, [hereinafter TRIPS
Agreement], art. 1 § 3, available at: http://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm (expressly
incorporating both the Paris and Berne conventions as substantive rules of IP for WTO members).
43 Agreement on Trade-Related Aspects ofIntellectual Property Rights, April 15 1994, [hereinafter TRIPS
Agreement], art. 3, available at: http://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm.

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took their place as the primary mechanism of enforcement worldwide.44 Since nearly all nations
are members of the WTO,45 the TRIPS Agreement established the first viable international
system for the enforcement of IP worldwide.46
TRIPS not only created basic protections but also established mechanisms for
compensation and dispute resolution.47 For example, under the TRIPS agreement, there is a
general minimum copyright term of 50 years unless based on the life of the author,48 a “fair-use”
policy based on the three-step Berne test,49 and a “most favored nation clause,” which requires
all TRIPS signatories to be given treatment equal to that of the most favored nation.50
In addition to international treaties and conventions, a nation may also be obligated
through independent Free Trade Agreements (“FTAs”). Substantive obligations can be imparted
by treaty, convention or trade agreement.51 Domestically, U.S. enforcement of IP theft typically
begins with the “Special 301,”52 an annual report compiled by the office of the U.S. Trade
Representative, which gives the present state of IP protection and infringement across the world.
Agreement], art. 2, available at: http://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm.
45 Members and Observers, WTO.ORG available at http://wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm.As of
June 26, 2014 there were 160 members of the World Trade Organization.
46 As a result of this almost exhaustive membership of the world’s nations,countries that are not members of the
WTO are effectively required to comply with many of the provisions of the Berne Convention anyways, since they
are almost always dealing with WTO members.
47 See Agreement on Trade-Related Aspects ofIntellectual Property Rights, April 15h1994, [hereinafter
“TRIPS Agreement”], art. 2 ¶¶ 1-2, available at: http://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm.
Agreement], art. 12, available at:ttp://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm.hl
Agreement], art. 9, available at: ttp://www.wto.org/english/docs_e/legah_e/27-trips_03_e.htm. (“(1) Authors of
literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction
of these works, in any manner or form. (2) It shall be a matter for legislation in the countries of the Union to permit
the reproduction of such works in certain special cases,provided that such reproduction does not conflict with a
normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. (3) Any
sound or visual recording shall be considered as a reproduction for the purposes ofthis Convention.”)
Agreement], art. 4, available at: ttp://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm. A
51 U.S. Copyright Office, Circular38A.084:International Copyright Relations ofthe United States(cug. 2014),
available at:http://www.copyright.gov/circs/circ38a.pdf .
52 19 U.S.C. § 2242, available at http://www.gpo.gov/fdsys/pkg/USCODE-2010-title19/html/USCODE-2010-
title19-chap12-subchapI-part8-sec2242.htm (requiring “[i]dentification of countries that deny adequate protection,
or market access,for intellectual property rights.”).

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Additionally, compliance with TRIPS does not prevent a nation from being identified as denying
effective protection of intellectual property rights.53 In 2014, only one country—Ukraine—was
listed as a “Priority Foreign Country” in the Special 301 Report, meaning its “acts, policies and
practices” were deemed “unreasonable” and “burden or restrict U.S. commerce” because of “the
denial of adequate and effective protection of intellectual property rights.”54 This designation is
the most serious, and allows the U.S. to “use all available remedies under U.S. trade laws to
compensate for the economic losses incurred.”55 Although a Priority Foreign Country is the most
serious designation of the Special 301, and is populated only by an Eastern European nation at
present, the next most serious category of inclusion, the “Priority Watch List,” is dominated by
Asian countries such as China, India, Indonesia, Thailand, and Vietnam.56 It is precisely in these
countries where this paper aims to create supplemental enforcement measures through private
agreements.57
Recent developments internationally have sought to pick up where TRIPS left off in 1994
and create additional enforcement systems. The Anti-Counterfeiting Trade Agreement58 of 2011
(“ACTA”) and the Trans-Pacific Partnership (“TPP”), both currently pending ratification,59 have
53 19 U.S.C. § 2242, available at http://www.gpo.gov/fdsys/pkg/USCODE-2010-title19/html/USCODE-2010-
title19-hap12-subchapI-part8-sec2242.htm.
54 International Intellectual Property Alliance, 2014 Special 301 Report on Ukraine, available at
http://www.iipa.com/rbc/2014/2014SPEC301UKRAINE.PDF Feb. 7, 2014). (“The 2013 designation of Ukraine as a
PFC was based specifically on three critical shortcomings in Ukraine’s intellectual property rights (IPR) regime: (1)
the failure to implement “an effective and systemic means to combat widespread online infringement of copyright
and related rights;” (2) “the unfair, nontransparent administration of the systemfor collecting societies;” and (3) the
“widespread use of infringing software by Ukrainian government agencies.”
55 International Intellectual Property Alliance, 2014 Special 301 Report on Ukraine, available at
http://www.iipa.com/rbc/2014/2014SPEC301UKRAINE.PDF (Feb. 7, 2014).
56 International Intellectual Property Alliance, 2014 Special 301 Report, available at
http://www.iipa.com/2014_SPEC301_TOC.htm (Feb. 7, 2014).
57 See Infra, Part IV(A).
58 European Commission, Joint Statement On The Anti-Counterfeiting Trade Agreement (ACTA) From All The
Negotiating PartnersOf The Agreement, Press Release,, available at http://europa.eu/rapid/press-release_IP-10-
1504_en.htm?locale=en (last visited Oct. 24, 2014).
59 Trans-Pacific Partnership: Summary of U.S. Objectives, Office of the United States Trade Representative,
available at http://www.ustr.gov/tpp/Summary-of-US-objectives (last visited Oct. 24, 2014).

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the stated goal of promoting a greater regulatory framework for intellectual property enforcement
worldwide. The difference between the two proposed treaties however, is primarily one of
degree. ACTA, if adopted, would create a new governing body outside existing forums such as
WIPO and the UN.60 ACTA represents a large-scale shift towards maximizing IP protections that
would see “criminal sanctions [] mandated against peer-to-peer file sharing internationally;
governments do legal work on the part of corporate content owners; companies that rely on
parallel imports (such as eBay) lose their business model; laptops or iPods [possibly] searched at
borders; and the information gleaned from border searches [] shared among border authorities of
signatory countries.”61
The TPP’s provisions on IP enforcement also represent the ambitions of ACTA, as well
as a wider U.S. foreign policy goal of playing a key role in the development of the Asian
regional governing system.62 Both ACTA and the TPP have been negotiated in secret, with a ban
on releasing any version of the text for four years imposed on all negotiating parties.63 However,
unlike ACTA, a copy of the IP provisions of the TPP have been leaked64 on the Internet through
Julian Assange’s Wikileaks website. The fact that the U.S. has been so secretive in trying to find
an agreement to supplement TRIPS is in itself an indication of the kind of pressure the U.S.
government is under from private IP interests seeking to maximize protection worldwide.65
60 Margot Kaminski, The Origins and Potential Impact of the Anti-Counterfeiting Trade Agreement (Acta), 34 Yale
J. Int'l L. 247, 250 (2009). “ACTA is part of this carefully calculated movement to increase IP protection outside of
the existing venues of WIPO or the WTO.”
61 Margot Kaminski, The Origins and Potential Impact of the Anti-Counterfeiting Trade Agreement (Acta), 34 Yale
J. Int'l L. 247 (2009).
62 See generally, Trans-Pacific Partnership: Summary of U.S. Objectives, Office of the United States Trade
Representative, available at http://www.ustr.gov/tpp/Summary-of-US-objectives (last visited Oct. 24, 2014).
63 Sean M. Flynn et. al., The U.S. Proposal for an Intellectual Property Chapter in the Trans-Pacific Partnership
Agreement, 28 Am. U. Int'l L. Rev. 105, 114 (2012). “Like ACTA, the TPP . . . is being negotiated under intense
secrecy, including an agreement among the parties that no text of any proposalin the negotiation will be released
until four years after the end of the negotiation.”
64 The full text of the proposed IP chapter of the TPP is now available only at https://wikileaks.org/tpp/.
65 Accord, Margot Kaminski, The Origins and Potential Impact of the Anti-Counterfeiting Trade Agreement (Acta),
34 Yale J. Int'l L. 247 (2009). “In light of its enormous potential impact, the shroud of secrecy under which ACTA

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One controversial part of the TPP that has led to some hesitation among would-be parties
is the prohibition on parallel imports66 not currently enforceable under the WTO.67 Additionally,
the TPP proposal would create “‘investor-state’ dispute proceedings, where corporations c[ould]
sue member-states directly for infringement.”68 Moreover, some NGOs and other interested
parties have voiced concerns that the TPP would infringe upon personal liberty while creating an
overhaul of world IP law that does not include the input of all interested parties.69
These two agreements make it clear that the U.S. is attempting to negotiate around the
WTO to increase IP protections through regional agreements with Asia in particular. Rather than
try to push controversial agreements through the legislative process of foreign governments, this
paper suggests an extrajudicial mechanism that might serve similar goals without the secrecy and
potential civil liberty infringement required to ratify either ACTA or the TPP.70
is being constructed is highly troubling. With no open negotiating process,and no draft publicly available, ACTA is
a black box that could contain a bomb.”
66 Generally, parallel products circumvent price-point protections of the IPR holder, who may decide to offer the
same product for varying prices in varying places in the world. A parallel import refers to “when a product made
legally (i.e. not pirated) abroad is imported without the permission of the intellectual property right-holder (e.g. the
trademark or patent owner). Some countries allow this, others do not.” Parallel Import, WTO Glossary of Terms,
WTO.org, http://www.wto.org/english/thewto_e/glossary_e/parallel_imports_e.htm (last visited Jan. 9, 2015 4:11
PM); Intellectual Property [Rights] Chapter, Trans-Pacific Partnership, https://wikileaks.org/tpp-ip2/ (May 16,
2014)(last visited Jan. 9, 2015).
67 Meredith Kolsky Lewis, The Trans-Pacific Partnership: New Paradigm or Wolf in Sheep's Clothing?, 34 B.C. Int'l
& Comp. L. Rev. 27, 43 (2011). “[T]here are aspects ofthe Australian--United States Free Trade Agreement
(AUSFTA) that are inconsistent with the United States--Singapore FTA with respect to intellectual property
protection. For example, the United States--Singapore agreement does not prohibit the practice of parallel
importation, whereas the AUSFTA does prohibit parallel importation.”
Agreement, 28 Am. U. Int'l L. Rev. 105, 114 (2012).
Agreement, 28 Am. U. Int'l L. Rev. 105, 117-18 (2012). “We use the term ‘public interests’to refer to the interests
of the broad range of often diffuse and unorganized stakeholders, including consumers and users of intellectual
property-protected information and products,who are affected by intellectual property laws but who do not have
representatives formally included in the TPP lawmaking process.”
70 Civil liberties would not be implicated in private agreements between American trade unions and foreign ISPs
since there is no guarantee of equal protection in private contracts. See Infra, Part IV(A) “Privacy & Piracy”.

12
Against this backdrop of U.S. and international attempts to enforce copyrights, we now
flip the coin for a discussion of how someone (theoretically) steals music, movies, books,
software, games, or even access to a cloud-based license.
III. HOW INTERNET PIRACY WORKS
a. Identifying The Pirate
As a preliminary matter, it is worth noting a few of the common identifying
characteristics of digital pirates. Pirates tend to be overwhelming young, with the 16-24 year old
age bracket accounting for 58% of illegal downloaders. 71 Additionally pirates tend to be
sophisticated, given that 44% of MPAA losses are attributable to college students alone.72 In
addition to being young and well educated, online pirates also tend to be disproportionately male,
installing more software of all types on their computers than do other users.73
b. Methods of Piracy
i. The (Traditional) Client-Server Network
Piracy of music, software, movies, videos, and other recordings can operate in a variety
of ways.74 In the early days of the Internet, the client-server model became the predominate
means of distributing information, and is still the most widely used method today.75 Traditional
websites such as YouTube and Facebook work on this model, storing content and delivering it to
71 CRIMINAL ENFORCEMENT OF INTELLECTUALPROPERTY RIGHTS,American Bar Association et al., 25, fig. 10
(2007).
72 CRIMINAL ENFORCEMENT OF INTELLECTUALPROPERTY RIGHTS,American Bar Association et al., 25, fig. 10
(2007).
73 2011 BSA Global Software Piracy Study, 9th Edition p. 1, available at
http://globalstudy.bsa.org/2011/downloads/study_pdf/2011_BSA_Piracy_Study-InBrief.pdf.
74 Trips Through the Far East: High Tech Product Piracy and the Need for Alternative Regional Solutions,20 Wis.
Int'l L.J. 143, 151 (2001)
75 Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1024-25 (9th Cir. 2013) cert. dismissed, 134 S. Ct. 624
(U.S. 2013). (“The traditional method of sharing content over a network is the relatively straightforward client-
server model. In a client-server network, one or more central computers (called ‘servers’) store the information;
upon request from a user (or ‘client’), the server sends the requested information to the client.”).

13
users upon request.76 Using the client-server model, it is possible to violate copyrights by, for
example, hosting a popular artist’s new music recording without their express permission. A
third party user presumably purchases the artist’s new album and then uploads their copy to
YouTube (or anywhere else) for the world at large. This is a common scenario and one that is
increasingly being policed by individual websites’ user-policies, which have blossomed into an
extrajudicial enforcement model in large part as a response to DMCA violation notifications.77
ii. “Peer-To-Peer” (p2p)
Another somewhat dated method of illegally distributing content—particularly music—is
peer-to-peer sharing. The Recording Industry Association of America alleges that this method of
file sharing is responsible for an unparalleled 47% decline in legitimate music sales since its rise
to popularity among users in the late 90s.78 P2p made websites such as Napster, Kazaa, and
Limewire notorious, and is most attractive to users seeking to cherry-pick individual files such as
music tracks.79 P2p may refer to several different kinds of technology that all have a common
decentralized infrastructure.80
iii. Torrents
76 Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1024-25 (9th Cir. 2013) cert. dismissed, 134 S. Ct. 624,
187 L. Ed. 2d 398 (U.S. 2013).
77 See generally How Google FightsPiracy, Google Company Report Into Piracy 2014, available at
https://drive.google.com/file/d/0BwxyRPFduTN2Nmd YdGdJQnFTeTA/view. The report discusses the methods and
reasons for Google’s Content ID system, which polices the brand’s flagship YouTube in response to DMCA
complaints. To date by far the largest amount of reported violations and removal requests has come from the U.K.
19, 2014). (“In the decade since peer-to-peer (p2p) file-sharing site Napster emerged in 1999, music sales in the U.S.
have dropped 47 percent, from $14.6 billion to $7.7 billion.”).
79
80 Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1024-25 (9th Cir. 2013) cert. dismissed, 134 S. Ct. 624,
(U.S. 2013). (“‘Peer-to-peer’ (P2P) networking is a generic term used to refer to several different types of
technology that have one thing in common: a decentralized infrastructure whereby each participant in the network
(typically called a ‘peer,’ but sometimes called a ‘node’) acts as both a supplier and consumer of information
resources.Although less secure, P2P networks are generally more reliable than client-server networks and do not
suffer from the same bottleneck problems.”)

14
It is difficult to distinguish p2p from torrents since they both share a decentralized
structure. Basically the difference is sharing from one-to-one (p2p) and from one-to-many
(torrenting). 81 Imagining the Internet as a web connecting end-points, torrenting is vastly
superior to p2p in that it uses all available strands of the web.82 Instead of party A downloading
directly from Party B (and thus being limited by each user’s bandwidth, connection speeds, and
availability), Party A downloads packets (strings of information) of a much larger file from the
“Swarm.”83 The Swarm is a collective of users who run a torrent client (a software program such
as BitTorrent) to download, upload and share files. Users are encouraged to share with the
Swarm (known as seeding) because they are generally rewarded with additional bandwidth for
their own personal downloads.84 Thus, the pirates’ code goes something like, “give unto others
and the Swarm shall give unto you.” One interesting twist on torrenting allows the user to plug in
a “.torrent” file to an online website and stream the desired movie instead of downloading it.85
Presumably this reduces the risk of detection by copyright infringement software and also
infection by malicious software as a result of downloading torrent files from an unknown place.86
Torrents are currently the most effective and prevalent form of file sharing, especially in
regard to high quality movies and software given their large file sizes.87 The process may seem
81
82
83
84
85 This is a relatively new development. An example that may or may not be available by the time this paper is
published is available at http://joker.org/ (last visited October 30, 2014 at 11:15 am).
86 It is a well-known problem among pirates that torrents may be infected with malicious software, which either
harms the person’s computer or secretly reports back private information. See Max Eddy, Game of Thrones Torrents
are Perfect for Delivering Malware, PCMAG.COM available at http://securitywatch.pcmag.com/none/310063-game-
of-thrones-torrents-are-perfect-for-delivering-malware (last visited 10.31.2014 at 1:49 p.m.).
87 Ross Drath, Hotfile, Megaupload,and the Future of Copyright on the Internet: What Can Cyberlockers Tell Us
About Dmca Reform?, 12 J. Marshall Rev. Intell. Prop. L. 205, 206 (2012). (“Over the past decade, popularity has
shifted from peer-to-peer services like Limewire and Kazaa to BitTorrent sites like the Pirate Bay . . . .”).

15
complicated, but all technical jargon aside, in practice torrenting is actually pretty simple; just
download BitTorrent, go to The Pirate Bay, and click on the file you want—easy as that.88
According to independent research firm NetNames, 24% of all Internet bandwidth across
North America, Europe and Asia-Pacific is consumed by infringing digital content.89 Even as
legal alternatives begin to sprout up to fill the void left between traditional cable and the needs of
the Millennial generation, piracy in the developed world is still on the rise.90
iv. Cyberlockers
Cyberlockers91 are relatively new and describe hosting services, which allow people in
the cloud to share public links to content that may be copyrighted.92 It works like this: Person A
uploads a copy of the latest Radiohead album to a service (free or otherwise) such as Google
Drive or Dropbox. Once the content has been uploaded, Person A publishes that content to an
automatically generated URL. Person A then sends a hyperlink of that address (which is not
necessarily publicly searchable) to Person B who commences to either stream or download
Radiohead’s latest album.
88 Since Swedish authorities brought down The Pirate Bay, this process may not be as easy as described here now.
But the principle is the same, and The Pirate Bay is by no means the only torrent site.
89 Sizing the Piracy Universe, a study conducted by NetNames at the direction of NBC Universal, available at
https://copyrightalliance.org/sites/default/files/2013-netnames-piracy.pdf.
90 Richard Verrier, Online Piracy of Entertainment Content Keeps Soaring, L.A. TIMES,SEPTEMBER 17,2013. Last
visited October 19, 2014 available at http://www.latimes.com/entertainment/envelope/cotown/la-fi-ct-piracy-
bandwith-20130917-story.html. (“’While legitimate services have come along like Netflix, the piracy world hasn’t
stood still,’ said David Price, director of piracy analysis at NetNames. ‘People are infringing all kinds of content,
including films, television, music and games. Over 300 million people infringed copyright at least once. That’s an
enormous number of people. It just shows how embedded this particular activity has become in people’s
lives.’”(emphasis added).
91 “Cyberlockers are online data hosting services that provide remote storage space within a secure storage
architecture. They can be accessed globally over the Internet. Cyberlockers can also be called online storage or
cloud storage.” Technopedia Online Technology Dictionary, available at
http://www.techopedia.com/definition/27694/cyberlocker.
92 See generally Ross Drath, Hotfile, Megaupload,and the Future of Copyright on the Internet: What Can
CyberlockersTell Us About Dmca Reform?, 12 J. Marshall Rev. Intell. Prop. L. 205, 206 (2012).

16
Of course, this technology is abundantly useful for purposes that are wholly legitimate.93
Say, for example, someone wants to host an online copy of his or her latest business plan, and
the file is immense. They could upload the file to the cloud, which means that it cannot be lost
when someone’s individual computer crashes. Then they would create a publicly accessible
hyperlink, which is automatically generated by the cyberlocker, and send it to affiliate offices in
London and Hong Kong.94 Now select persons in the company have access to that file from any
computer in the world.
v. Streamripping & Credential Sharing
Streamripping is the process of accessing a live video or music feed and using a capture
program to record it.95 Again, what can be a completely legitimate technological tool is also a
double-edged sword. Streamripping is used to illegally capture and share copyrighted materials
from YouTube, Netflix and the like.96 On the flip side, a father might use the same program
legitimately to record a remote lecture or capture the live stream of his son’s baseball game when
he is away on a business trip. But streamripping is also of concern for a different reason that is
not the focus of this paper, but worth mentioning in passing here.
It is often said of the Millennial Generation that they will be the first to live entirely
public lives, where the mistakes of youth will follow them into old age.97 This is especially true
in regard to sex tapes. Even if the tape is posted online by a third party for only a matter of
minutes and later taken down, streamripping means that a copy of that tape could have been
93
94
95 Helienne Lindvall, YouTube and Spotify Ripping:Why won’t they act?,THE GUARDIAN (Jun. 19, 2013 8:07 AM)
available at http://www.theguardian.com/media/media-blog/2013/jun/19/youtube-spotify-ripping-apps-mp3s.
96 Helienne Lindvall, YouTube and Spotify Ripping:Why won’t they act?,THE GUARDIAN (Jun. 19, 2013 8:07 AM)
available at http://www.theguardian.com/media/media-blog/2013/jun/19/youtube-spotify-ripping-apps-mp3s.
97

17
saved by any user who saw it while it was live and shared infinitely. 98 I only mention this
scenario in passing, since our discussion here is centered on copyright infringement, but
violations of privacy apply as forcefully to the rights of public artists as they do to private
individuals.
i. NNTP (News Groups)
Newsgroups create a clientserver relationship and almost anything can be found
including software, music, videos, or books.99 Many people use it because, unlike a torrent, your
speed is not limited to the slowest upload of a home user since the upload is coming from a
server that will generally have a symmetrical connection.100 The net result is that most people
can download at their full speed.101 Additionally, newsgroups go largely unnoticed and, when
you are finished with your download, you do not seed which means that, when HBO scans your
ISP, there is nothing for them to find on your PC.102
Now that we see how pirates break the law, let us see if we can devise a workable
solution for preventing them from doing just that. This paper primarily focuses on the Asia-
Pacific region because of the author’s familiarity with it, but these proposals are equally
applicable throughout the world.
IV. IDEAS & CONCERNS FOR ENFORCEMENT ABROAD
This paper focuses on Asia for a variety of reasons. Although these proposed solutions
could be implemented worldwide, Asia is by far the region of the world with the highest volume
98
99 Email Correspondence of James Houston,Director of Operations, GNOSYS Networks (retrieved Nov. 4, 2014
10:42 AM).
10:42 AM).
10:42 AM).
10:42 AM).

18
of copyright infringement.103 As of this year, India and China—which together account for
36.5% of the world’s population104—are both on a congressional watch list of nations with the
most egregious IP infringement worldwide.105 The Asia-Pacific region has widely divergent legal
systems in terms of effective IP enforcement and of the rule of law in general. Given these
unique characteristics, Asia is an obvious frontier for reform and an interesting case study
because of the prevalence of both developing and developed nations.106
Additionally, President Obama has made trade with Asia a priority in his administration’s
outgoing agenda, particularly pushing the Trans-Pacific Partnership—which would include a
major overhaul of intellectual property law. 107 This U.S. foreign policy shift represents an
acknowledgment that the Asia-Pacific region will be the primary driver of the world economic
engine in the near future. 108 Moreover, as a result of the TRIPS agreement, “most Asian
103 Software Pirates Rampant In Asia-Pacific Region,THE AUSTRALIAN,May 30, 2006 at Section 5 (quoting an
International Data Corporation study produced for the Global Association of Software developers). (“More than half
of all software installed on personalcomputers in the Asia-Pacific region [as of 2005] was an illegal copy,with
Vietnam, Indonesia,China and Pakistan among the worse offenders . . . .”); 2011 BSA Global Software Piracy
Study, 9th Edition; available at http://globalstudy.bsa.org/2011/downloads/study_pdf/2011_BSA_Piracy_Study-
InBrief.pdf. (“Emerging economies, which in recent years have been the driving force behind PC software piracy,
are now decisively outpacing mature markets in their rate of growth. They took in 56 percent of the world’s new PC
shipments in 2011, and they now account for more than half of all PCs in use.”)
104 World Population ProspectsThe 2012 Revision: Highlights and Advance Tables, The Department of Economic
and Social Affairs of the United Nations, 51-55 (last visited Oct. 28, 2014).
105 International Creativity and Theft-Prevention Caucus Unveils “2014 International Piracy Watch List,” PRESS
Release, House Judiciary Committee, (June 24, 2014), available at:http://judiciary.house.gov/index.cfm/press-
releases?ID=84E45F54-D902-42A9-8D94-6FFC86EBC993.
106 Reto Hilty, THE ENFORCEMENT OF INTELLECTUAL PROPERTYRIGHTS:COMPARATIVE PERSPECTIVESFROM THE
ASIA-PACIFIC REGION, Foreword (Christop Antons ed.,2011). (“As the relative value of intellectual property
increases in the global economy, the development of intellectual property rights in Asia has been nothing less than
dramatic in the last couple of years.”)
107 Obama Says Hopes For Pacific Trade Pact in November, REUTERS(June 20, 2014) available at
http://www.reuters.com/article/2014/06/20/us-usa-trade-tpp-idUSKBN0EV2KE20140620; Trans-Pacific
Partnership: Summary of U.S. Objectives, Office of the United States Trade Representative, available at
http://www.ustr.gov/tpp/Summary-of-US-objectives (last visited Oct. 24, 2014).
108 Remarks By President Obama to the Australian Parliament (Nov. 17 2011) available at
http://www.whitehouse.gov/the-press-office/2011/11/17/remarks-president-obama-australian-parliament. “This is
the future we seek in the Asia Pacific . . . partnership with allies and friends, and with every element of American
power. So let there be no doubt:In the Asia Pacific in the 21st century, the United States of America is all in.”

19
countries have completely overhauled their intellectual property systems.” 109 This rapid
transformation has forced Asian governments to rethink administration and enforcement of
intellectual property110—providing a golden window of opportunity to enact the kinds of reforms
suggested by this paper.
Despite lagging in some areas, U.S. enforcement entities in the Asia-Pacific region such
as the United States Trade Office are aware of the scope of the piracy going on there and are
actively taking legal action.111 Abroad, American embassies, along with the office of the United
States Trade Representative, are partnering to locate high priority pirates, with such notable
recent success as the arrest of one of the co-founders of The Pirate Bay in Nong Khai Province,
Thailand.112
The Trans Pacific Partnership is especially attractive because it would ease trade barriers
and open up many Asian markets to American businesses while seeking to ensure enforcement
of intellectual property rights. 113 However, somewhat conspicuously, China is missing from
ASIA-PACIFIC REGION, Foreword (Christop Antons ed.,2011).
ASIA-PACIFIC REGION, Foreword (Christop Antons ed.,2011).
111 Email correspondence from Teerin Charoenpot, Senior Intellectual Property Specialist, United States Patent and
Trademark Office at the U.S. Embassy Bangkok U.S. Embassy in Bangkok (retrieved Jan. 6, 2015 10:45 PM). (“The
private sector submission on [the 2014] Special 301 [Report] . . . provide[s] [the] perspective of the private sectoron
the ground [in Asia] that [] online piracy is still very much a major concern, especially with the increase [in] internet
penetration and speed in this region.
Trademark Office at the U.S. Embassy Bangkok U.S. Embassy in Bangkok (retrieved Jan. 6, 2015 10:45 PM).
“Regarding the arrest of one of The Pirate Bay founders in Nong Khai, [this] is actually evidence of the close
collaboration between the private sector, the U.S. government and local governments in the region. The U.S.
government has many agencies that have an IP portfolio and many of them have a regional office located here in
Bangkok.” These regional offices could provide the perfect starting point for the private ISP agreements suggested
as a solution by this paper. See INFRA PART IV(A).
Trademark Office at the U.S. Embassy Bangkok U.S. Embassy in Bangkok (retrieved Jan. 6, 2015 10:45 PM).
(“Regarding TPP [among] the ASEAN member countries.Currently Brunei, Singapore, Vietnam and Malaysia are
already members while Thailand, the Philippines, Indonesia and Cambodia have expressed interest in joining.”)
Since the negotiations are still ongoing, the U.S. embassy in Bangkok would not comment much about the issue, but
the authorfeels it is likely that the Trans Pacific Partnership is an American foreign policy tool aimed at

20
among the agreement’s signatories. 114 China represents a major barrier in the effective
enforcement of American copyrights, especially given the often-tense political atmosphere
between these world superpowers. 115 With the interest generated in the Trans-Pacific
Partnership, China may soon find itself increasingly isolated in terms of IP enforcement and
resultant free trade in the region.116
A. IP Tracking As A Possible Solution
One of the more controversial methods this paper suggests for copyright enforcement in
Asia is IP tracking. This section discusses the practical aspects of how an IP tracking system
might work, and the possible legal basis for such a system is discussed later.117 The theory is,
trade organizations, whose members produce desirable content such as blockbuster movies or the
latest software, would upload high-quality genuine copies of their work to popular torrent sites.
Embedded in this copy of, let’s say Microsoft Word, would be a tracking protocol that pings
(similar to sonar) the user’s IP address and reports it back to a server maintained by the union.118
The server then compiles a spreadsheet of the offending IP addresses that serves several
conditioning open access to “made in America goods” to increased intellectual property protections in the Asia-
Pacific region.
114 International Intellectual Property Alliance, 2014 Special 301 Report on China (PRC), 22 available at
http://www.iipa.com/rbc/2014/2014SPEC301CHINA.PDF (Feb. 7, 2014). “The market in China for music,
software, publications,films, and video games remains stunted by a combination of piracy and stifling market access
and discriminatory barriers. At the same time, there were once again some gradual signs of progress in China during
2013. The U.S. Government has long recognized the significant harm caused by IP infringement in China and
remains deeply engaged with the Chinese Government on intellectual property issues in various fora, including the
U.S.-China Joint Commission on Commerce and Trade (JCCT) and the U.S.-China Strategic and Economic
Dialogue (S&ED).
115 International Intellectual Property Alliance, 2014 Special 301 Report on China (PRC), 22 (Feb. 7, 2014)(“The
U.S. Government has long recognized the significant harm caused by IP infringement in China and remains deeply
engaged with the Chinese Government on intellectual property issues in various fora, including the U.S.-China Joint
Commission on Commerce and Trade (JCCT) and the U.S.-China Strategic and Economic Dialogue (S&ED).”).
116 Supra, note 73. As more Asian nations seekthe trade advantages offered by the Trans -Pacific Partnership, China
remains a lone wolf.
117 Infra part IV(B)(b) “Privacy & Piracy”.
118 Consider the now defunct Microsoft Genuine Advantage program available at
http://support2.microsoft.com/ph/11518/en-us.Have you ever wondered why Microsoft products need to update so
often? Sure, they are releasing software fixes for security issues,but at the same time they are also verifying that
your copy of Windows, Office, etc. is a licensed version. Try to update an unlicensed version of these products and
you might get something more than you bargained for—caught.

21
functions. First, the list of the offending IPs is emailed to each major ISP of a country or region
with whom the union has a trade agreement. If a foreign ISP has entered into one of these
agreements, they would then notify the offending user (who was identified by IP address
supplied to the ISP by the union) that their service is being dropped as a result of copyright
infringement and that further infringement could result in litigation. The idea here is not
prosecutorial really, it is instead intended to produce a chilling effect. Obviously it would not be
effective or desirable to take every pirate to court; we just want him or her to worry.
Next, the union might use some volume threshold to identify pirates who are also likely
distributing for profit and then choose whether or not to pursue litigation in that country’s courts
on a case-by-case basis. I would suggest a volume threshold of one terabyte per month. Anyone
downloading above one terabyte monthly is likely not downloading strictly for personal use. The
methodology of the volume threshold is analogous to the simple possession/distribution
distinction drawn by the Controlled Substances Act. 119 After the union identifies possible
distributors, the list of IPs above the volume threshold would be used as substantive evidence in
any subsequent lawsuits. Perhaps the company could prosecute these pirates as a class once each
month in a given jurisdiction for efficiency? The vast majority of lawsuits would be settled
before trial, of course, and the end result would hopefully be a significant deterrent effect on
repeat offenders.
a. Balancing Privacy & Piracy: Private Contracts Granting Corporate Rights To
Search For Copyright
The basis of the extrajudicial enforcement system is rooted in contract. First, there is a
contract between foreign ISPs and media unions like the MPAA that grants a percentage of
119 For our purposes,pirated software is like a digitally controlled substance. Compare 21 U.S.C. ch. 13 § 841,
imposing penalties that include imprisonment, with 21 U.S.C. ch. 13 § 844a, imposing a civil penalty for possession
of small amounts of certain controlled substances.

22
streaming profits from a given country to that country’s majors ISPs. In exchange, the ISPs
would agree to insert a clause in their Internet service agreements where the user expressly
consents to software that monitors copyright infringement—namely an IP tracking protocol. If a
pirate is identified, at the discretion of the media union, their contract with the ISP would be
terminated, their name and IP address put on a blacklist and published to other service providers,
and action in court taken if the union felt it particularly warranted for some reason.
However, this idea presents a compelling dilemma. It is an analysis fraught with the kinds
of constitutional concerns that a judge might wrestle with in regard to warrantless police entry
during a suspected burglary. 120 The central question is when does the individual’s right to
privacy become subsumed by the public’s concern for prohibiting unlawful activity? Well, there
thousands of pages devoted to this topic. However, at the outset, I note two important
distinctions from the usual domestic examples given above. First, in the international context, the
right to privacy is governed not by the U.S. Constitution alone, but rather by the constitutions of
possibly dozens of different nations. Second—and perhaps most intriguing—is the fact that an
extrajudicial enforcement model by private contract might arguably tend to avoid the stickiness
of a Due Process analysis altogether. Remember, there is no Due Process guarantee among
private individuals. Let us consider an example.
Imagine a budding young mind. There is a global recession and he or she has decided to
study law, a traditionally stable profession. However, as a juvenile they received a criminal
conviction for vandalism—something they now know was foolish. Fortunately, their state’s
legislature saw fit to pass a law that seals or expunges the records of minors. This allows them to
120 Since digital theft is analogous to physical theft, it is possible that a digital search could be justified by the logic
of the exigent circumstances doctrine allowing a physical search during the suspected commission of a crime. See 64
A.L.R.5th 637 (1998)(“Courts in a variety of cases have been called upon to determine whether a belief by the
police that a burglary is in progress or has recently been committed qualifies as an exigent circumstance justifying a
warrantless search of premises.).

23
answer “no” to the all-important question of whether they have ever received a criminal
conviction. But, while filling out their law school applications, he or she finds out that they
actually have to disclose the conviction—and possibly be disqualified from attending law
school—even though an attorney may have advised them not to. How does LSAC circumvent a
right expressly granted by state legislature? A contract. Law school is essentially voluntary. You
don’t have to disclose, but they don’t have to let you attend law school if you won’t. As a general
proposition, an individual may contract to release rights otherwise afforded to them by law in
consideration for some service.121 For example, homeowners are allowed to release their right to
the Equity of Redemption guaranteed by judicial foreclosure when conveying a deed in lieu of
foreclosure. The debtor typically does this because it will release them from personal liability on
the promissory note; in other words, in exchange for a service.
So, the author proposes that there be private agreements between, for example, the
Recording Industry of America and Singtel—Singapore’s largest ISP. Singtel, in response to
some economic incentive given by the RIAA (perhaps a percentage of streaming profits from
SoundCloud or Spotify in that country), would require new customers to consent to being
monitored for copyright infringement when starting Internet service. This monitoring would
include the use of an IP tracking protocol. Singapore residents would not be compelled by law to
give up their right to privacy; rather, they would be compelled by the terms of their contract.
They would agree to release a certain amount of privacy in consideration of the services
provided to them by Singtel. In this way we would create a system of private enforcement that
does not require warrants or legislative discussion. We would be unionizing the content
providers and the companies that run the content delivery systems. At least theoretically, both
121 Theophilus Parsons,1 PARSONS ON CONTRACTS,444 (1857). (“In general a waiver of any legal right at the
request of another party is a sufficient consideration for a promise.”)

24
industries would benefit financially while simultaneously relieving some of the costs of law
enforcement abroad.
i. A Hypo
The point of the extrajudicial system is to avoid becoming entangled in a Due Process
analysis, but hypothetically, if we did engage in such an analysis, the following example might
be illustrative. If a robber slips on an unsafe condition in your home, should they be allowed to
sue you for negligence? This is essentially the IP tracking question stated differently. If your
computer is identified by an IP tracking protocol while engaged in theft, is that a violation of
your right to privacy? Can there ever be a reasonable expectation of privacy while engaged in
digital theft? The enforcement of copyrights in the digital age inevitably involves a discussion of
what the appropriate scope of enforcement should be, balancing liberty, justice, and economic
concerns.122 Courts in the U.S. are just now beginning to grapple with many of the questions
presented by commercial invasion of privacy for U.S. citizens.123 As the Internet continues on a
trend towards more as opposed to less regulation, the world is going to have flesh out the
boundaries of both commercial and government intrusion.
b. Alienating The Consumer
The tiny island city-state of Singapore is a logical test market in the Asia-Pacific region.
It is a well-developed country affording all the legal protections inherent to that title.
Additionally, it has the reputation of a legal system that strictly enforces the letter of the law, as
you might recall from the public caning of 18-year-old American student Michael Peter Fay,
who was convicted of theft and vandalism there in 1984.124
122
123
124 Charles P. Wallace, Ohio Youth to be Flogged in Singapore,L.A. TIMES, March 4, 1994 available at
http://articles.latimes.com/1994-03-04/news/mn-29913_1_singapore-government.

25
A recent court case from that country is instructive of the potential hazards faced by
Internet Service Providers in balancing the need to protect their customer’s confidential
information against the necessity of complying with copyright law. In Odex Pte Ltd v. Pacific,
Odex, a Singaporean company, sought damages for copyright infringement of its right to
distribute animated movies.125 Because of the nature of the material many of those sent demand
letters for illegal downloading were children as young as nine-years-old.126 This case highlights
the problem that many online pirates are young children, or groups whom companies would not
want to be seen prosecuting publicly. [EXPAND]
B. Building on Current International Treaty Systems
a. WIPO, TRIPS, ACTA, TPP and Regional Enforcement
Does the World Intellectual Property Organization regulate intellectual property theft
exclusively as a function of the TRIPS agreement? No. IP theft can also be regulated inter alia as
a result of regional trade agreements between the affected countries. 127 Deciding which
enforcement mechanism applies, and to whom, is a big part of the cloud that hangs over effective
enforcement internationally.128 Even once we know which law applies, most infringers are not
likely at any serious risk of being punished severely.129 Many will get away with a monetary fine
if at all. 130 Much of the existing treaty law focuses exclusively on civil enforcement of
copyright 131 and only the exceptional pirate may ever contemplate jail time. 132 The TRIPS
125 Odex Pte Ltd v. Pacific Internet Limited [2007] SGDC 248.
126 Chua Hian Hou, Online Lynch Mob, THE STRAITSTIMES(SINGAPORE)(Aug. 26, 2007) available at
http://www1.international.ucla.edu/article.asp?parentid=76836.
127 The Trans-Pacific Partnership is an example of a regional trade agreement regulating IP enforcement outside the
context of the WIPO and TRIPS. See Trans-Pacific Partnership: Summary of U.S. Objectives, Office of the United
States Trade Representative, available at http://www.ustr.gov/tpp/Summary-of-US-objectives (last visited Oct. 24,
2014).
128
129
130
131

26
agreement contains a provision for the implementation of criminal procedures and penalties “at
least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale.”133
However, since the majority of the international enforcement regime only provides for civil and
not criminal penalties for pirates, there is little serious disincentive.134
Moreover, in some Asian countries, the police are aware of counterfeit movies and music
being sold on the street, but are generally complicit, every so often raiding these locations and
destroying the merchandise but often not even levying a fine. 135 This paper suggests a private
agreement system that would not supplant enforcement through TRIPS and the WTO; rather, it
would provide additional redress to aggrieved copyright holders and corporations that could be
used short of an actual civil or criminal trial. Additionally, while the WTO might prevent the
government of the United States from making any treaty provision that would create an unfairly
favorable condition for one WTO member over the other,136 industry unions suffer no such
limitation. Therefore, in places where the IP infringement is costing the U.S. private sector the
most money, industry organizations would be in a position to offer greater incentive to
aparticular country or region without violating the most favored nation clause of the TRIPS
agreement. For example, in China, where the Special 301 report shows private sector losses are
132 See supra, note 6. A founder of the most successfuldigital theft hosting service of all time received only three
years jail time and only after years of evading authorities worldwide.
133 Uruguay Round Agreement: TRIPS, § 5 Art. 61 available at http://www.wto.org/english/docs_e/legal_e/27-
trips_05_e.htm.
134 Compare Uruguay Round Agreement: TRIPS, § 5 Art. 61 available at
http://www.wto.org/english/docs_e/legal_e/27-trips_05_e.htm, with
135 Pirated DVDs in Beijing, N.Y. TIMESavailable at
http://www.nytimes.com/fodors/top/features/travel/destinations/asia/china/beijing/fdrs_feat_24_4.html?n=Top%2FF
eatures%2FTravel%2FDestinations%2FAsia%2FChina%2FBeijing (last visited Jan. 8, 2015 3:15PM). “Digital
video discs of current hit movies often hit the streets ofBeijing the same week as they open in U. S. theaters -- and
sometimes even before. While the sales of these pirated DVDs are illegal (they blatantly dis regard international
copyright laws), DVD sales take place so openly in Beijing that it doesn’t give the impression of being wrong.
Unlike in countries where pirated DVDs are sold down back alleys and behind closed doors,in China they are sold
in permanent shops that will even exchange yourDVD if the quality isn’t good.”
136

27
the largest of any country worldwide,137 an organization such as the MPAA or RIAA might be
able to offer a higher percentage of streaming profits in order to make enforcement more
attractive to ISPs in China. Now, China is a difficult market to penetrate in Asia, particularly
because many industries in that country are quasi state-owned. Nevertheless, this combination of
enforcement through the existing treaty structure of the WTO combined with the possibility of a
private enforcement mechanism is an attractive proposition. In a country where U.S. companies
and artists are loosing billions of dollars annually, any reversal of the trend should be welcomed
by the private sector.
V. PROMOTING & LICENSING LEGAL ALTERNATIVES
a. The Proliferation of “Smart TVs” and Streaming Services
One limiting factor for the proliferation of legal streaming services has been the
technology itself. Most adult users today are still not capable of connecting their computers,
tablets and phones directly to their home entertainment system.138 These connections can easily
be accomplished using a video cable or wireless dongle such as Chromecast, but setting up these
devices, though fairly simple for a person from the Millennial generation, might seem like a
perilous and insurmountable task to a Baby Boomer. Since Baby Boomers far outweigh
Millenials in terms of overall purchasing power, 139 it is necessary to develop completely
integrated user-friendly systems. Smart TVs are a first generation attempt to embed digital
streaming services into flat screens and make it all accessible via a traditional remote control.140
Incorporating these new digital services into the traditional home entertainment system will
allow older persons to adapt more quickly.
137
138
139
140

28
As the hardware industry reaches out to embrace the streaming market, these services
will skyrocket in demand and hasten the transition.
b. Cloud-Based Licensing
Although it is not a conversation cable executives are willing to have in public, they are
currently “working hard to stay relevant against growing competition from Netflix, Amazon,
Google Play, Hulu, iTunes, YouTube and many other online video services.”141 The growth of
cloud services is beneficial for both consumers and producers. 142 It represents the natural
tendency of the market to meet consumer’s demands on their own terms. Cloud licensing cuts
down enormously on the physical distribution costs of producing media and software.143 There is
no machine needed to wrap the box that the DVD comes in, because the box and the physical
DVD don’t exist. Streaming services are virtually direct sales. Although streaming has its own
unique “sunken” costs,144 licensing from the cloud cuts down on the size of the workforce and
negates the need for a warehouse that houses the product. These savings can be substantial.
Netflix is a quintessential example of David vs. Goliath in the cable industry. Netflix and
HBO are currently locked in a head to head death race, each vying to be the first service to offer
just the right blend of old and new. 145 HBO has recently begun offering some of its shows
through a partnership with Amazon Prime, but it lags far behind Netflix in ease and convenience
of the platform. Despite being a newcomer to the cable industry, for the first time in history,
141 5 Things To Know Before Cutting YourCable Bill, The Kim Komando Show, FOX NEWS ONLINE,May 18, 2013,
available at http://www.foxnews.com/tech/2013/05/18/5-things-to-know-before-cut-your-cable-bill/print (last
visited September 30, 2014 at 8:50 a.m.).
142 2014 BSA Global Software Study,available at
http://www.bsa.org/~/media/Files/Research%20Papers/GlobalStudy/2014/2013GlobalSurvey_Study_en.pdf. (“It
seems clear that the growth of cloud services will lower unlicensed software use by giving vendors greater control of
the distribution of software and continual views of usage,and by lowering the upfront costs for customers and
providing continual services and enhancements.Vendors also are offering special incentives and prices to spur
adoption.”)
143
144
145

29
Netflix, a cloud-based company, has generated more subscriber revenue than HBO.146 Netflix is
also moving into original programming and CEO Reed Hasting has brazenly proclaimed that he
wants his service “to become HBO faster than HBO can become Netflix.”147 Another parallel
between new and old is occurring in the music industry between Pandora Internet radio and
broadcast radio. Not only does Pandora stream across many platforms (TV, phone, tablet,) but it
also evolves over time based on the preferences of the user. Pandora highlights the fact that
streaming services not only address the question of delivery, but also represent an attempt by
some in the market space to design more intelligent systems. Cloud based licensing is also used
in the software industry. A recent example is Office 365, which hosts a company’s email through
a Microsoft Exchange server and features the full Office suite of programs like Excel and Word.
These programs are available for download online after proof of a licensed user account.
VI. CONCLUSIONS
Effective control of online piracy on a regional or global scale will require two things: (1)
a legal foundation upon which individuals and law enforcement agencies are empowered and
motivated to act; and, (2) a highly technical solution for a highly technical problem. Intellectual
property theory is fascinating, and pontification about the cultural differences in attitude towards
copyrights between East and West is interesting, but to solve a very practical problem, there can
only be a practical solution. As in, first a company or artist consults a database of infringers
provided by IP tracking software, then they submit a spreadsheet of known violators by country,
and finally those individuals have their IP’s blacklisted and their wages garnished. Ideally, this is
all accomplished within a short span of time. The piracy trend is already reversing. The
146 James O’Toole, Netflix: Our SubscriberSales Top HBO’s, CNN MONEY (Aug.7, 2014)(last visited Nov. 1,
2014) available at http://money.cnn.com/2014/08/07/media/netflix-hbo/.
147James O’Toole, Netflix: Our SubscriberSales Top HBO’s, CNN MONEY (Aug.7, 2014)(last visited Nov. 1, 2014)
available at http://money.cnn.com/2014/08/07/media/netflix-hbo/.

30
enforcement mechanisms in place in the U.S. domestically through the DMCA are already
beginning to achieve a reduction in the availability of pirated materials online.148 Additionally,
the U.S. is pushing several regional FTAs that would provide greater regional enforcement
mechanisms. This paper would add to these systems, various collective bargaining agreements to
allow for an optional privatized system of enforcement. This way, by the mid-twenty-first
century, IPR holders can choose the forum and severity of their enforcement and in so doing the
rights holder and consumers might strike a balance that allows for both IP protection and the free
flow of information.
Net neutrality is not a lost cause. Often times the best profit-making model online is
actually to give services away for free. The viability of this business model has been proven time
and time again. A short and by no means exhaustive list of success stories includes Google,
Youtube, Pandora, Wikipedia, Facebook and Twitter. Is the creativity and development of these
platforms going to be stifled when HBO prosecutes people for downloading Game of Thrones?
Hardly. If you don’t want to pay, no problem, sit through a few commercials online. Hate
commercials? No problem, pay a small fee for access to a streaming service. Don’t like either
alternative? We’ll see you in court.
The golden age of online piracy is coming to an end and it has little to do with any
limitation on the free exchange of valuable ideas and information. Moreover, pirates are not the
148 Type the search terms “game of thrones torrent” into Google and you will see a strikingly different result than did
web users only five years ago. Now, at the top of the page,we see licensed versions of the showpromoted above
links to torrent sites.You can now legally watch the show for $2.99 per episode, though this price point may still be
too high. Additionally, if you scroll to the bottomof the page you will see text that says,“In response to a complaint
we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page.If you
wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.” These two key features
are some of the earliest attempts to reign in what many young persons used to know as the total freedom and
anonymity of the Internet.
https://www.google.com/search?q=game+of+thrones+torrent.&oq=game+of+thrones+torrent.&aqs=chrome..69i57j
0l5.4408j0j7&sourceid=chrome&es_sm=119&ie=UTF-8#q=game+of+thrones+torrent.

31
only ones in the wrong here.149 The entertainment and software industries needed a check on the
real marketable value of their products, a check that online piracy has provided them. Let’s face
it; no one pays $20 for a CD anymore because if they did, they could only afford to listen to five
new artists each year. 150 As these industries begin reaching an equitable price point, and
providing consumers with low-cost streaming services online, piracy will naturally decline—
especially when people can no longer hide anonymously.
Whether or not this paper’s proposed mechanisms of control are on point, there is no
arguing with the fact that copyright losses in the Asia-Pacific region are costing billions of
dollars annually and are a genuine legal problem of near epidemic proportions. Recent
technological advancements, as well as developing regional legal frameworks, have opened up
the possibility of effective enforcement of this illicit trade for the first time in nearly two
decades.
149 David Lee, Google Changes‘To Fight Piracy’ By Highlighting Legal Sites, BBC (October 20, 2014)(last visited
Oct. 20, 2014 at 12:30 PM). (“[A] long held view from Google that the solution to piracy lay in putting effort into
creating better legal services, rather than chasing off illegal ones.”)
150 The commercial success ofI-Tunes has demonstrated that when you price digital music downloads affordably
and integrate them into existing technology,consumers will often elect to purchase rather than steal music.

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