Taking Control of Piracy

Just when I thought there were no new topics to write about (after 10 years of writing this column), it dawned on me that I have never written about piracy. Most of my clients are large retail/luxury brands, so this has simply not been an issue in their businesses. But, as more and more companies begin to compete in the digital domain, they are finding or creating digital products to sell that either replace or complement their hard goods. In slightly more boring terms, the B2B side of industry has been delivering this kind of content for years, in the form of white papers and downloadable presentations. On the consumer side we have things like e-books, video, music, apps, instruction manuals, and any number of other types of digital downloads. This includes your website itself, which a hacker could infiltrate, download, and set up as his own on a different domain. So, how do we protect against piracy, and how do we react to piracy?

As this is a new topic for my column (and possibly ClickZ?), I would really love to hear in your comments if this is something you want to hear more about.

Defining Terms

The world of piracy has its own terms that might be unfamiliar to most people just beginning to allow digital downloads.


Cyberlockers are online services that let you store and retrieve files. Most of us use these sites because they make it easy to send large files through the Internet. I use them all the time to send Photoshop files, large presentations, focus group videos, and more to my clients for review. HotFile.com and SendSpace.com are two of the largest cyberlockers. But, they are also a hotbed of illegal activity, as people use them to store your digital files illegally and disseminate them to a mass of people. Cyberlockers are a great tool that can be easily abused if they are used to store content that is not yours to distribute. Disney, for example, is suing HotFile at the moment for enabling the illegal dissemination (and storage) of its copyrights materials. There is much more to the cyberlocker story, because they actually tend to encourage (and reward monetarily) the distribution of content (legal or otherwise).

Watermarking or Fingerprinting

These terms are used somewhat interchangeably, though they really are two different ideas. Basically, fingerprinting a digital asset means imprinting it digitally in some unique way that can be recognized later. This technique is used to identify the “initial pirate” of your content. If you allow a white paper to be downloaded, for instance, and later find it in the hands of someone who didn’t buy it, fingerprinting will enable you to identify who gave your content away in the first place. Fingerprints come in many different formats. Digital sheet music store MusicNotes.com simply prints, “This sheet music authorized for use by Jack Aaronson” on the bottom of each page. This is a “defeatable watermark” because I could easily take that out if I were to photocopy the paper, but MusicNotes is banking on the fact that I probably won’t bother.

More technical solutions are not visible at all. They are embedded in the video or audio streams of media. Some survive re-encoding, some don’t.

Digital Millennium Copyright Act (DMCA)

This is the copyright law that makes it illegal to aid and abed in piracy. It’s too complicated to go into details here, but the major takeaways are simple. The DMCA standardizes the protocol your company uses to communicate with parties who are either pirating your content or enabling that piracy. The act prescribes the verbiage you need to use to engage these parties, and dictates how they should react. The first thing you generally do to thwart a pirate or get illegal content removed from the Internet is to send a DMCA notice to the offending parties. Generally, the offending parties will respond by removing your content.

Anti-Piracy Companies

Sending DMCA notices can become more than a full-time job. To that end, many companies who do this work on behalf of your company have sprung up. They automate the DMCA notification process. Similarly, watermarking companies are used regularly by every major Hollywood studio to protect their content.

End-User Litigation

So, you’ve caught your pirates. Now what? There are two types of pirates. The first pirate is the person who first took content they bought from you (your app, e-book, or song) and uploaded it where someone else could get it. The second group of pirates are all the people who downloaded that content. Who do you sue? Your options here are plentiful. In the U.S., you can sue the original uploader, all the downloaders, and the conduit that was used to disseminate the material (i.e., the cyberlocker). Some cases are more easily won than others, though. If you can easily identify the original pirate, it seems like an easy case (though I am not a lawyer). Identifying all the downloaders (commonly referred to as John Doe’s) might be more complicated, as is proving their intent to knowingly and willfully download material that was copyrighted. If your in-house counsel is not well-versed in this area of the law, you will have to seek out lawyers who are.

Does This Really Affect You?

ROI marketing, in terms of this column, has always assumed one basic thing: your products or goods stay with whoever actually bought them. You can’t pirate a pair of shoes, a diamond ring, or bird food. But, once you start selling e-books, digitized versions of your magazines, iPhone apps, white papers, music, or video, you have now entered the age of digital assets, and the age of digital piracy. So, yes, this affects you, or will.

Comments, thoughts? Leave them below. Is this a topic worth delving into more, or does it simply not affect you? Let me know.

Until next time,


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