Piracy In The Times Of OTT

S.S. Rana & Co. Advocates


S.S. Rana & Co. is a Full-Service Law Firm with an emphasis on IPR, having its corporate office in New Delhi and branch offices in Mumbai, Bangalore, Chennai, Chandigarh, and Kolkata. The Firm is dedicated to its vision of proactively assisting its Fortune 500 clients worldwide as well as grassroot innovators, with highest quality legal services.
When Netflix, Amazon Prime Video, Hotstar (not yet Disney+), started their growth spurt, a generation that had grown up with streaming content over Torrents sat up and took notice.
India Media, Telecoms, IT, Entertainment
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When Netflix, Amazon Prime Video, Hotstar (not yet Disney+), started their growth spurt, a generation that had grown up with streaming content over Torrents sat up and took notice. Could this spell the end of bit torrent clients, and hard drives full of downloaded international content? Was on-demand truly going to become the new normal of film and television?

For a while it did seem so. Netflix was the first to shake up broadcast culture in India, and Amazon wasn't very far behind. After Disney's acquisition and revamp of Hotstar, it became a platform for some remarkable content, notably HBO specials (such as Game of Thrones), instead of solely being targeted at live sports buffs. With a few players in the field, a subscription fee that fit most budgets, the tradition of torrent downloads did indeed trickle. However, as network television came to grips with the new reality of on-demand content, the only way they realized they could cash in on the lucrative new market, was to launch new streaming channels/websites/platforms of their own. To the average consumer's dismay, the field exploded into diverse sections once again, with each broadcast conglomerate launching their own OTT streaming platform, each trying to hook viewers with tempting premium content. Just when one had thought one had escaped the pain and confusion of trying to select the perfect satellite TV channel package, the OTT-on demand sphere had fragmented once more.

So if you want to watch Bridgerton on Netflix, Mirzapur on Amazon Prime Video, and also The Mandalorian on Disney+, you are once again thrown into the painful decision making of which subscription plan to choose from. Because none of the OTT packages are particularly cheap, and, added together, can amount to quite a pinch. It was the same dilemma of an abundance of choice (or rather hard choices), that online pirates had been waiting for. After a lull of a few years, the time was ripe for piracy to re-emerge in a new avatar, to once again give the public what they want: which is all the content, on demand, all the time.

Primary Causes of Piracy

Piracy, by the very definition of the term, indicates illegality and wrong-doing. Then why do people still indulge in it? There are a number of factors for this, most of which have remained constant over the years and even with the changes in technology.

  1. People love free stuff. This is self-explanatory and painfully obvious. Because, why not?!
  2. As has been pointed out above, everything you want to watch comes at a price. Combined, it's a pretty pinch on the pocket. Unfortunately, that doesn't stop you wanting it. And torrent downloads come to the rescue once again.
  3. Regional availability. Global interest gets piqued when a show (even if it is in an international language) makes waves in a particular region. Localized content generating interest through word of mouth over the internet leads to the desire to download it even when it may not be available in your country/region.
  4. Delayed release. For fear of spoilers, an international release may be pirated in other parts of the world where it may be unavailable or delayed in releasing.
  5. Purchasing difficulties. Different shows/movies/content are on different platforms. You might have succumbed into subscribing to Netflix, only to find your favourite old show is being streamed on Hulu or Peacock or Disney+, requiring additional payments, separate account creations, payment difficulties, etc. Additionally, many premium platforms require payment to be made through credit cards only, which excludes a lot of potential consumers.
  6. One time viewing. Many people find it impractical to commit to a platform simply to watch some content once only (this applies particularly for platforms streaming live content, such as sports, concerts or events).
  7. Stand against Big Corp. Seeing mainstream production houses with their millions provokes the little consumer into viewing piracy as a bit of an activist rebellious stand against Big Corp. If they make their money off box office ticket sales and active subscribers, one person skimming some content off the top can't hurt. Can it?
  8. Seeing so many other peers indulging in online content piracy can lead some to think that this is how it should be and that they are not doing anything wrong. It can take quite some convincing to make them believe otherwise.

Piracy Then and Now

Back in the 2000's, (i.e. till about 2015), piracy involved more dedication and effort, both on the part of the pirate, as well as on part of the downloader. Pirates would go to extreme lengths to obtain content, whether ripping official CDs or DVDs, or smuggling a camera into a cinema hall to record a running movie, or patiently waiting through hours of programmed television in order to capture the entire run of a show. Downloaders also had to make investments in storage devices, high speed internet connections, and run the risk of virus infections and unintentionally downloading malware and corrupting their systems with almost every download.

But now that all content has been voluntarily put online, over various platforms, it has become easier for pirates to copy the content (using advanced software), or obtaining the back-end file from confidential sources. Additionally, the advancement in smartphone technology and speed of mobile internet, means that pirates have now become more mobile than ever, and content is being pirated and streamed simultaneously, on the go, no longer fettered to laptop or desktop systems. From peer-to-peer file sharing in the early days of digital piracy, the move is now almost complete to illegal online streaming. In fact, more than 87% of users illegally downloading music, are almost solely using mobile devices to do so.

Combative Measures against Digital Piracy

The U.S. Chamber of Commerce's Global Innovation Policy Center estimated in 2019 that online piracy accounts for 26.6 billion views of U.S.-produced movies and 126.7 billion views of U.S.-produced TV episodes every year. The economic impact of digital video piracy extends far beyond the movie and television industries and leads to losses in overall domestic revenues and reduced GDP. Annual global revenue losses from digital piracy are between $40 and $97.1 billion in the movie industry and illegal downloading of copyrighted materials takes up 24% of the global bandwidth.

MUSO, a company that tracks global online piracy data, listed India as the country (only behind US and Russia) with the third highest number of visits to known pirate websites in its 2018 comprehensive report.

The problem with combating online piracy nowadays is that while the methods of piracy have evolved, the methods used to tackle piracy have remained the same. Additionally, it has become harder to identify and pin-point viewership of illegal streaming content, given that the majority of viewership is streaming content anyway. Whether through shared accounts, virtual proxies, or social media, tracking what content is being streamed illegally alongside millions of legitimate viewers, has become a nightmare.

More than 80% of global online piracy can be attributed to illegal streaming services. Moreover, the on-set of the global coronavirus pandemic also contributed to an explosion in online piracy as more people than ever, across the economic divide, were confined to their homes without much to occupy or distract them. With movie theatres closed at the time, with no certainty as to when they may even come back in business (if at all), at the time, many highly billed movie releases (such as Marvel's Black Widow and Warner Bros. Wonder Woman 1984) were released simultaneously on online platforms, and suffered almost immediately at the hands of digital pirates (so much so that Scarlett Johansson even ended up suing Marvel for the same!)

Even the laws such as the DMCA or the IT Act, fail to adequately protect against illegal streaming (as the content is available online legally and voluntarily, now it is primarily the access which has become problematic). It is also difficult for countries to legislate against content originating from other countries which have lax regulations for IP protection.

Copyright laws are enforceable, however involve tedious litigation which is time-consuming and involve a heavy evidentiary burden, which may be difficult to achieve. Also, pirates are experts at re-posting content at ever new locations after being taken down from one site.

Online platforms nowadays have become much more pro-active in taking down content infringing copyrights and most major countries have made it mandatory for intermediaries, including OTT platforms, to provide an infrastructure to attend to the demands of right holders. However, it remains difficult to police content being spread rampantly over social media apps such as Telegram and YouTube, or over VPNs.

In India, one positive development has been Courts allowing dynamic injunctions to tackle online piracy, especially in cases with proliferating online links spreading over a very short period of time.

Conclusion/ Way Forward

Advertising and subscription-led video streaming services are losing up to 30% of their annual revenue to piracy in India alone. This problem is sadly expected only to grow with time as studies and surveys find that millennials and Gen-Z individuals find pirating software and entertainment content perfectly normal. While streaming services did help curb online piracy for a brief period of time, giving users access to on-demand media at reasonable rates, with the proliferation of OTT platforms, there has now come a situation of 'streaming fatigue' where there is just too much content to consume an far too little time to do it in. Some methods that are being adopted by platforms to control the impacts of piracy are digital rights management, a systematic approach to copyright protection for digital media, secure URL, VPN blocking, Bot and Rogue traffic blocking, code protection and watermarking the content to control piracy. However, even this may not be enough and analysts are predicting a wave of failures and consolidation over the next few years, likely to drive even more piracy. Consumer awareness and education is once again of prime importance, however the main enemy to combatting piracy is rampant public apathy.









For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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