Winter is Coming. Or, as I'm writing this in the northern hemisphere in May, Summer is Coming. Undoubtedly, one of the most popular television shows in recent years is HBO's Game of Thrones, based on George R. R. Martin's A Song of Ice and Fire fantasy novel series. The first novel in the series, A Game of Thrones, was published in 1996. The most recently published novel in the series was 2011's A Dance with Dragons, and the HBO show also premiered the same year.
Admittedly, I'm one of a very few people of nerdy persuasion who has not read any of the books, nor watched any of the show. I did, however, play the Telltale video game based on the TV show on my PS4 because it was one of the free games offered to PlayStation Plus members back in 2017. But even if I hadn't played the Game of Game of Thrones, I'd still have a vague familiarity with the Lannisters and company because I read a lot of pop culture blogs and that stuff is difficult to miss. I haven't been living under a Westeros rock, you know.
GoT: The Most Pirated Show Ever?
Interestingly enough but not at all surprising, HBO’s Game of Thrones is probably the most pirated show of all time. The first episode of season seven was reported to have been pirated at least 91.74 million times, and season seven, in general, was reported to have been pirated over a billion times a week after the seventh season finished airing on HBO. Season eight premiered on April 14th of this year, and the whole series will conclude on May 19th. It's safe to bet the piracy will continue, stronger than ever.
Is HBO stressed out about how pirated their show is? Legal access to HBO is by paid subscription only – the company pioneered that model many years before Netflix started mailing DVDs, let alone streaming media online and airing some of their own original programming.
HBO programming President Michael Lombardo was asked about that way back in 2013:
"I probably shouldn't be saying this, but (the piracy of Game of Thrones) is a compliment of sorts. The demand is there. And it certainly didn't negatively impact the DVD sales. (Piracy is) something that comes along with having a wildly successful show on a subscription network. If you look at the aggregate of international and DVD sales — which are the two revenue streams we look at since we're not selling it domestically on another platform — yes, absolutely, in terms of shows we have on now."
The same year, Time Warner (HBO’s parent company) President Jeff Bewkes said:
“We've been dealing with this for 20, 30 years – people sharing subs, running wires down the backs of apartment buildings. Our experience is that it leads to more paying subs. I think you're right that Game of Thrones is the most pirated show in the world, and that's better than an Emmy.”
Better than an Emmy? Maybe he has a point, a lot fewer people watch Hollywood awards shows these days than they did in the 1980s and 1990s.
My late father used to write for television, and creative people don’t get paid if people don’t pay for their content. So as easy as it is to pirate content these days, I would still encourage you to legally buy media if you can afford to do so. I practice what I preach. My phone contains over a hundred eBooks that I have legally purchased, I pay for Netflix, Funimation, and Spotify subscriptions (even though the creators see very little of that money), I buy music on Bandcamp, and I have a few dozen paid apps on my phone. My boyfriend and some of my social circle are professional musicians. I’m a creative worker too, but thanks to the generosity of companies like BlackBerry Cylance, you get to enjoy my content for free without paywalls while I still get paid for my work. (Editor’s Note: thanks Kim!)
Media Piracy Through the Years
Media piracy has existed for decades before Internet access became common. I remember people recording TV onto VHS cassettes and radio music onto audio cassettes over the course of my ‘80s and ‘90s childhood. If those cassettes got passed along to other people, that's a form of piracy. The entertainment industry managed to get the U.S. government to enact legislation to mitigate some of its potential loss from cassette piracy.
For example, from Duke Law School's Music Piracy and the Audio Home Recording Act:
“In 1992, Congress passed the Audio Home Recording Act 34 (“AHRA”), an amendment to the federal copyright law. Under the AHRA, all digital recording devices must incorporate a Serial Copy Management System (“SCMS”). This system allows digital recorders to make a first-generation copy of a digitally recorded work, but does not allow a second-generation copy to be made from the first copy (users may still make as many first-generation copies as they want). The AHRA also provides for a royalty tax of up to $8 per new digital recording machine and 3 percent of the price of all digital audiotapes or discs. This tax is paid by the manufacturers of digital media devices and distributed to the copyright owners whose music is presumably being copied. In consideration of this tax, copyright owners agree to forever waive the right to claim copyright infringement against consumers using audio recording devices in their homes. This is commensurate with the fair use exception to copyright law, which allows consumers to make copies of copyrighted music for non-commercial purposes. The SCMS and royalty requirements apply only to digital audio recording devices. Because computers are not digital audio recording devices, they are not required to comply with Serial Copy Management System requirement.”
People would also take books in the library and photocopy their pages. The existence of recordable cassettes and photocopiers probably triggered their own piracy boom in the ‘80s, but media piracy in general probably goes back to the first half of the 20th century. Back then, you had to be really clever.
But the Internet has really been a game changer, eh? Since the ‘90s, the Internet has made media piracy even easier than cassettes did in the ‘80s. But purely digital piracy still predates the initial boom of AOL. Years before the Internet was how we know it today, there were BBSes in the 1980s. Lee Hutchinson wrote about how the system was often used for software piracy back in those days:
"And, of course, there was pirated software—which even back then was called ‘warez’ (pronounced like ‘wares,’ not like ‘Juarez’), though it was the style in the mid-'90s to soMeTiMeS wRiTe iT liKe ‘wArEz.’ I can't believe I used to write like that, but we all did for a while."
Pirated file areas were sort of like secret bars in the 1920s—everyone knew where they were, but you didn't really talk about them in public. Saying ‘HEY GUYS ANYONE GOT ANY WAREZ’ on a BBS message boards might get you immediately kicked and blacklisted; quietly approaching the sysop in chat and mentioning that you heard from another board user that there were "private" files for download, on the other hand, might get you access—provided someone could vouch for you.
Through BBSs, I came to know the world of pirate release groups—the Scene. As I downloaded applications I wanted to use but could never pay for (like the incredible, inimitable XTree Gold) I quickly became familiar with the legendary names: groups like iNC, THG, Fairlight, and the still active seemingly immortal RAZOR 1911. These were the people actively cracking software and distributing it, and they were mythical creatures in my teenage eyes.
The Life, Death, and Rebirth of Napster
My modem in 1994 was 9600 bps, and downloading an image in a webpage took forever. I downloaded MIDI files for music, partly because they’re so much smaller than MP3 or WAV files. But as Internet access sped up and people’s hard drives got larger, it became increasingly feasible to pirate music and movies over the Internet.
By 1999, most Internet users had modems that were at least 56kbps, and fewer and fewer of us were tied to online services like AOL, CompuServe, and Prodigy. More and more of us had straightforward ISP services with unrestricted access to the Internet. In June of that year, Shawn Fanning, John Fanning, and Sean Parker launched Napster. It started as a centralized P2P music file download service, mainly MP3s and completely pirated. In the early days of Napster, people would often pirate the music they wanted and then burn CDs with their pirated files, to play on portable CD players and the like. But later on in the Napster days, portable MP3 players became more commercially available to consumers. At that point, no CD burning was necessary, and even the earliest portable MP3 players were smaller than portable CD players. Plus they don’t skip.
The music industry didn’t like the Napster phenomenon one little bit. The Recording Industry Association of America launched a lawsuit against Napster on December 7th, 1999. By February 12th, 2001, the United States Court of Appeals ruled in favor of the music industry. Coincidentally, February 2001 was the moth that Napster use peaked, with over 80 million users. Here’s part of the Court’s ruling:
“Napster, however, has the ability to locate infringing material listed on its search indices, and the right to terminate users' access to the system. The file name indices, therefore, are within the ‘premises’ that Napster has the ability to police. We recognize that the files are user-named and may not match copyrighted material exactly (for example, the artist or song could be spelled wrong). For Napster to function effectively, however, file names must reasonably or roughly correspond to the material contained in the files, otherwise no user could ever locate any desired music. As a practical matter, Napster, its users and the record company plaintiffs have equal access to infringing material by employing Napster's ‘search function.’
Our review of the record requires us to accept the district court's conclusion that plaintiffs have demonstrated a likelihood of success on the merits of the vicarious copyright infringement claim. Napster's failure to police the system's ‘premises,’ combined with a showing that Napster financially benefits from the continuing availability of infringing files on its system, leads to the imposition of vicarious liability.”
The original version of Napster shut down in July 2001. It took a long time in court, but the music industry was able to get their way partly due to the centralized nature of Napster. On May 17th, 2002, German media company Bertelsmann bought Napster's assets for about $85 million, to launch it as a paid online music subscription service. Best Buy bought Napster again for about $121 million back in 2008. At this point, the Napster legal online media service still exists in some form, but it's a shell of its former self. Apple launched iTunes back in January 2001, to complement its iPod portable media player line. iPods were eventually overtaken by iPhones, but iTunes continues to thrive to this day.
The Heydays of Decentralized P2P Networks
Other P2P networks filled the void Napster left when it got shut down and then re-launched as a paid service. The Gnutella P2P network and client were launched in early 2000. The super popular LimeWire P2P client was launched in May 2000, an alternative for using the Gnutella network. The Kazaa client and P2P network was launched in March 2001. These technologies were the most popular way to pirate music and movies throughout the 2000s. They weren’t easy to shut down like Napster was because Gnutella and Kazaa were decentralized P2P networks, whereas Napster was centralized.
Interestingly enough, the Kazaa client was considered malware by 2006, with several adware and spyware components. By about 2012 though, these P2P networks all disappeared for the most part. Litigation didn’t kill them so much as a lack of interest.
So, what usurped those P2P networks that were so popular in the first decade of the 21st century? BitTorrent, for the most part. Bram Cohen launched the BitTorrent P2P network and client software in July 2001. BitTorrent is superior to the other P2P networks not only for its decentralized nature, but also for the way it handles files. Regarding all of the P2P networks I previously mentioned, a client machine needs a complete copy of a file before it can start uploading it to other clients. With BitTorrent, you can upload the fragments of partial file downloads. Theoretically, if none of the client machines that are online have a complete version of a file, you can still download the parts of a file that people have. A complete copy of a file is called a “seed.”
There are many BitTorrent clients now, and their UIs will usually say “seeding” once you’ve downloaded a complete copy of a file. By “seeding,” you’re uploading a complete copy of the file onto other clients which are requesting it. So BitTorrent is a much more efficient way to download the multiple-gigabyte media files that are popular today. And if you search torrent search engines like The Pirate Bay, you’ll find pretty much every type of media and application file out there, ready for piracy.
Legal Alternatives to Digital Media Piracy
In the past several years, the entertainment industry has managed to offer some attractive, legal alternatives to digital media piracy:
- Games on services like Steam are often very inexpensive, sometimes under $10 for many titles.
- I previously mentioned iTunes, which has been a money maker for Apple since 2001, and is still going strong.
- Netflix started in 1997 as a DVD rental-by-mail service for the United States, and they launched an early version of their movie streaming service by 2007. Now Netflix offers streaming movies and TV shows for most countries worldwide. They even started offering their own original programming by 2013, by 2019 that’s a large percentage of their overall content.
- If you’re like me and you want more anime content than is available on Netflix, Crunchyroll launched their streaming service in 2006.
- The anime-only streaming service I subscribe to, FunimationNow, launched in 2016.
- Disney+ is launching later this year, with the massive Disney and Fox library.
- Spotify, one of the most popular music streaming services and the one I subscribe to, launched in 2008.
Other media content offered legally is served through platforms like YouTube, Apple Music, Hulu, and the list goes on. And we can enjoy our content on our PCs, phones, TVs, wherever we want to watch it.
When media is pirated through P2P networks, not only do creators not get paid, but you’re also a lot more likely to get malware. But a small percentage of torrents aren’t of pirated content, and I see the BitTorrent network going on years down the road.
Long story short….we’re really spoiled for entertainment these days.
