Introduction
Taiwan’s reign as the King of Pirates has been so long lived and notorious, that its recent abdication of the throne draws many questions to the underlying causes. The answer is not simple. Many factors have played a role in the evolution of Taiwan’s intellectual property rights and the steps it has taken towards enforcing such rights. However, copyright enforcement is still not carried out as frequently as in the United States. This paper compares the evolution and enforcement of copyright laws, specifically as applied to literature and media, in Taiwan and the United States of America. This paper first narrates each country’s history of piracy. It then explains under what circumstances copyright law evolved in each country. The bulk of the paper observes factors affecting both countries’ enforcement of copyright such as culture, morality, and economics. Finally, it examines a recent U.S. change in copyright that may have broad implications.
I. A History of Piracy
Taiwan – The King of Pirates
“Everything you want, we’ve got it. All titles, NT $20. Same-day service, all of northern Taipei County” the DVD advertisement in a Taipei classified section read.[1] These advertisements were as common as the night markets scattered across the Taiwanese streets. Taiwan had become a country where anything could be obtained, including the latest blockbusters, music, software and literature at a fraction of the price.
Legal loopholes, lax enforcement, and attractive prices made piracy a common sight in Taiwan. In the computer district of Kaohsiung, neon lights advertised low prices on “perfect copies” of films from all over the world. VCDs and DVDs lined the shelves. They were so tightly packed it was difficult to remove the jewel cases.
As new copyright laws were adopted, and penalties became stiffer, pirates got smarter. At the night markets, squished between the vendors serving stinky tofu and novelty trinkets, counterfeit movies were spread across a card table. The police had recently been raiding and stopping unlicensed vendors and picking up those dealing in illegal goods. The table was designed to be taken down easily and the goods stashed. As an extra precautionary measure, the vendor was out of sight; but he sat observing from an arcade. A sign stated how much each movie was and instructed patrons to deposit their money into a box on the table.
A primary motivator for Taiwanese consumers was the ability to save money. A university student could check out her assigned textbooks from the library. She then could take the rental book to the copy shop next to campus to have it duplicated for her use in class.
Even large companies opted to save money by purchasing only a couple copies of business software and then installing it upon multiple computers, or more often by initially purchasing counterfeit software. Software counterfeiters had become more prevalent and skilled, only the truly observant purchaser could distinguish a copy from the genuine article. Even holograms, manuals, and licensing agreements were included in pirated copies.
Taiwan’s government had justified this piracy as inevitable since it was a developing country.[2] While Taiwan benefited from accessing this media and literature at free or reduced prices the owners of these copyrighted material were hurt through lost sales.
The United States – A Developing Nation of Pirates
The American constitution acknowledges the importance copyright held to the founders. The Constitution empowers Congress “[t]o promote 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.”[3] Madison regarded copyright as a form of property that government is established to protect, because such protection incentivizes further progress. [4]
Despite this power rooted in the Constitution, the United States has spent its fair share of time in the spotlight as a notorious pirate of copyrighted material. Philip Allingham refers to Benjamin Franklin as “the first American pirate.”[5] Shortly after the country’s independence, American printing presses were producing copyrighted British works without permission or payment.[6]
Two centuries ago, Charles Dickens was an outspoken critic of American piracy. Allingham comments that, “as fast as Dickens turned out the Pickwick Papers, Oliver Twist, and other early novels, American publishing houses snapped them up and published them in cheap editions which sold in the thousands across the country, pocketing the proceeds without sending so much as a letter of thanks.”[7] British copyright holders faced significant financial losses because their lack of American citizenship made them unable to protect their copyrighted works.[8] The American literature industry was even impacted because it had to compete with cheaply priced British literature.[9] Dickens appealed to Congress to modify its enforcement of foreign copyright laws, but he was turned away.[10]
The justifications that were offered for American piracy of copyrighted works were eerily similar to those heard recently in Taiwan. Congress viewed piracy as a necessary method to help boost the developing undercapitalized American publishing industry.[11] Fred Kaplan reflects that piracy was actively encouraged in America because developing nations without public libraries “needed inexpensive access to ideas and entertainment that they could not generate themselves or afford to purchase at high rates.”[12] Another argument existed that this type of access may have been more beneficial to a pirated author because it would “advance his reputation and long-term earnings that the restricted circulation of higher price of books on which a copyright royalty was paid.”[13] The encouragement of American literacy is another potential justification for allowing this piracy. It is ironic that two centuries later American copyright holders are attacking these own justifications being used in Taiwan.
Taiwan and the United States both have histories of lax copyright enforcement. However, remembering that these two countries are at different developmental stages is crucial to understanding differences in copyright enforcement. Taiwan as a recently developed nation may be able to justify skirting copyright enforcement in favor of further developing itself. Such justifications have been used by other countries, including the United States. Additionally, the advent of high speed internet access has raised many issues for both countries about enforcement that have not been adequately addressed yet. Neither country has had an analogous technology in their past, leaving this author to believe both will fall back on their histories of piracy.
II. Evolution of Copyright Laws in Taiwan and the United States
The copyright laws of the United States and Taiwan are very similar. However, the evolution of these countries’ laws was very different. Differences in how laws are adopted may impact the enforcement of the laws. Through the common law system the United States has slowly adapted their copyright system, eventually federal precedent was codified into the law. As a civil law country, Taiwan does not have the advantage of a developed judicial precedent and instead relies on every judge’s interpretation of law that is on the books.[14] Therefore, Taiwan’s copyright changes mostly came from broad legislative changes to the copyright act. This section examines the reasons each country adopted its current copyright laws.
The United States
America’s adaptation of its copyright laws was a response to its growing intellectual property industry. Copyright scholar Marshall Leaffer writes that, “The transfer of information has become an ever greater component of international trade and the centerpiece of U.S. competitiveness. Unlike other areas of the economy, the intellectual property sector is one where the United States is a net exporter—indeed, the world’s largest exporter by far.”[15] Today, the core copyright industries (i.e. computer software, video games, books, newspapers, periodicals, journals, motion pictures, music, and TV broadcasting) add over one trillion dollars in value to the United States’ economy.[16] This value has ensured that the United States has modified copyright law to keep up with new technologies that reproduce its citizens’ expressions.[17]
In two centuries the United States has taken vital steps in attempting to protect its copyright owners from piracy. The United States has amended its copyright act several times, increasing the duration of protection up until the life of the author plus 70 years, automatic copyright protection upon creation, the creative expressions that can be protected, and even offering protection to foreign copyright holders.[18] These changes allowed the United States to enter the Berne Convention, an international agreement, which requires its signatories to recognize the copyright of works of authors from other signatory countries as if they were their own nationals.[19] The reason behind the United States’ entry into Berne involved the, “systematic piracy of American works in certain foreign countries.”[20] By offering its protection to other countries, the United States hopes to enjoy similar protections for its own copyrighted works. The United States uses its membership in Berne when making trade agreements to protect it from piracy and inadequate foreign laws.
Taiwan
In Taiwan, copyright law has shifted dramatically, but not necessarily for the same reasons as the United States. In the beginning of the 20th century, Taiwan was a developing country that primarily exported fruits.[21] Taiwan has since advanced to a developed country and “intellectual property regulation gained importance in both domestic and international affair[s].”[22] As a small island with a population of 23 million, international trading is a major source of income.[23] Taiwan has had to appease other countries or face serious trade sanctions.[24] As a result, it changed its copyright law to be nearly identical to the United States’ Copyright Act of 1976.
Throughout its history, Taiwan’s law has been a unique mixture of local customs and external influences by other legal systems.[25] Chang-Fa Lo writes, that “the impact of Japanese rule during the colonial period; the 1946 resumption of jurisdiction of Taiwan by the Nationalist Government, which three years later moved to Taiwan in 1949; and the modern influence of Western countries in the legal reform process,” have all factored into Taiwan’s current legal system.[26] Copyright law has essentially evolved in three distinct periods, pre-1985; 1985-2001; and 2001-present day.[27]
From 1928 until 1985, Taiwan followed the old copyright law of imperial China.[28] During this period copyright protection appears to be fairly weak. Rather than gaining rights at creation, creators only received them after registration.[29] Under martial law, this system heavily regulated all publications and did not grant expansive rights to authors. Even when copyright was granted the rights only subsisted for a short while.[30] There was no fair use doctrine and the rights were not clearly stated which led to much confusion in courts.[31]
From 1985-2001, Taiwan reigned as the King of Pirates. Taiwan, as a major manufacturer of optical disks (i.e. CDs and DVDs), was the ideal location for piracy.[32] The United States was one of Taiwan’s major trading partners, however many of its copyrighted works were being pirated extensively.
The response by the United States was to place it on the Special 301 Report in 1988 due to a lack of regulations.[33] Being placed on the Special 301 list allowed unilateral trade sanctions to Taiwan and bore the potential of greatly restricting Taiwanese trade with the outside world.[34] Taiwan expanded its copyright protection by removing mandatory registration, extending protection to software, and clearly defined performance, broadcasting, and other music copyrights.[35]
From 2001 onwards, Taiwanese copyright law has evolved to be more like American law. Since Taiwan is not considered a sovereign state it could not become a member state of the Berne Convention.[36] However, its entry into the World Trade Organization as a developed country has forced it to follow the requirements of the Trade-Related Aspects of Intellectual Property Rights Agreement (“TRIPS Agreement”).[37] Under the TRIPS Agreement, Taiwan must follow the requirements of the Berne Convention, that is, it is obligated to protect a foreigner’s copyright.[38] Additionally, to fulfill the demands of its trading partner, the United States, it has increased criminal punishment.[39] The law now on the books is very similar to the United States’ own copyright laws. Many statutes such as the provision on fair use are identical. As a result of its efforts, Taiwan was removed from the Special Watch List on May 15, 2009.[40]
Both the United States and Taiwan have developed similar copyright laws, but the reasons for this development appear to be different for each country. Both countries reap the benefit that their copyright creators’ works are protected at home and abroad. However, the United States appears to have changed its laws to protect its growing intellectual property market. Taiwan appears to have updated its system to satiate its trading partners and avoid sanctions. The reasoning behind these different adoptions of their respective copyright acts may help explain each country’s enforcement of intellectual property law.
III. Enforcement of Copyright Laws
How these nearly identical laws are enforced is the central focus of this paper, not the fine differences between Taiwanese and American copyright laws. The decision to analyze Taiwan was not because it currently has the most cases of copyright infringement, but rather due to its former reputation as the King of Pirates. This section first examines each countries’ statistics for copyright enforcement. It then checks how factors such as culture, morality, and economics, affect each countries’ enforcement of copyright laws. Finally, this paper evaluates how new shifts in American copyright law may greatly impact piracy and enforcement.
Statistics
Taiwan has made great strides towards improving its copyright system, however it is still significantly behind the United States in terms of enforcement. In the United States, copyright infringement criminal convictions peaked at 224 in 2007, and civil cases reached a high of 5,488 in 2006.[41] In 2013, the number of federal cases involving copyright infringement was 3,553 (roughly 11.25/million).[42] These numbers do not reflect out of court settlements, which are likely higher, but piracy is also rarer in the United States today than in Taiwan. Only an estimated 1% of the population engages in large scale digital piracy.[43] The United States is also ranked last among all G7 countries in terms of piracy of software at a rate of 20%.[44]
Taiwan’s copyright enforcement on the other hand is lagging behind the United States. It must be noted that Taiwan has made significant steps from its historic high rates that earned it the King of Pirates title. However, the United States Department of Homeland Security still recognizes Taiwan as the primary source economy for pirate goods seized by the department, representing 68% of all seizures (roughly $1.1 billion).[45] In 2004, Taiwan only adjudicated 149 copyright cases.[46] This number rose to 687 by 2013 (roughly 30/million).[47] However, unlike the United States, criminal convictions have very rarely resulted in prison sentences. [48] Also unlike the United States, piracy is estimated to be very high throughout the country. The music industry represents that 88% of the population engages in digital piracy.[49] Taiwan’s software piracy rate is 40%, double the United States’ rate.[50] While this is significantly lower than its former piracy rate of 80%, Taiwan must remain diligent in its enforcement if it hopes to lower copyright infringement throughout the country.
While Taiwan is making astounding leaps forward in copyright enforcement, it still remains significantly behind the United States. The remainder of this paper shall examine the factors affecting copyright enforcement.
Factors Affecting Enforcement
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Cultural Factors
Taiwan and the United States come from very different cultural backgrounds. These differences might explain why the Taiwanese are less adamant about copyright enforcement.
Despite its current expansive copyright system, it is possible that Taiwan is still impacted by its deeply rooted Confucian tradition. Such a tradition is often noted as an important factor in understanding China and Taiwan.[51] The United States does not have a similar system of philosophy that has been incorporated into the everyday life of its citizens; therefore examining this element of culture may help explain differences in copyright enforcement.
Prior to 1895, Taiwan was ruled by the imperial Ch’ing for more than two centuries.[52] The Imperial Ch’ing code was deeply influenced by Confucian ideas of dispute resolution.[53] Yun-Hsien Lin, a civil mediator in Taiwan, explains:
the Confucian tradition incorporated the notions of an anti-lawsuit attitude . . . and melded [it] into the day-to-day life of Taiwanese people. When Japanese colonial power further brought German-style laws and a modern court system to Taiwan, representing the western ideals of individualism and of legal rights, the consequences of this was that a plurality of legal orders was created.
[54] Therefore in Taiwan there exists a unique situation that even though copyright law is westernized, long-lasting legal tradition still have power over how law is interpreted and enforced.[55]
One ancient Confucian principal that is still highly valued in Taiwanese society is the importance of social harmony. Resolving disputes through lawsuits is disfavored, and litigation is regarded as a last resort.[56] Confucius once said, “In hearing litigation, I am just like another man. But I try always to eliminate the need for litigation.”[57] Ken Kieke writes that, “[the Taiwanese] prefer to settle disputes over property, money, rights or injustices through direct negotiations rather than to take the matter to court.”[58] Litigation is a force that only stands to lengthen periods of social disharmony.
This idea of preserving social harmony is opposite to the litigious nature of the United States, where “civil litigation is the preferred method of IPR dispute resolution.”[59] The lawsuit culture of the United States is well known, and many Americans see it as necessary to vindicate rights.
Perhaps one of the reasons for lower levels of copyright enforcement through the litigation system is outside settlement. Half of Taiwanese believe that their court system is unfair.[60] Additionally, Taiwanese judges push individuals towards settlement.[61] However, settlements seem adequate since they allow copyright owners to vindicate some rights without having to undergo the costly litigation process, against offenders who lack deep pockets. The pursuit of outside settlements is common in the United States.[62]
This author is not entirely convinced that the Confucian idea of preserving social harmony is the reason for a lack of copyright enforcement in Taiwan. The Confucian idea that litigation leads to inauspicious results has given way to the idea “that rights should be won through individuals own efforts.”[63] In fact, figures show that a large number of Taiwanese do not hesitate to start litigating for the purpose of resolving their disputes with others.[64] Recently civil actions have been initiated in Taiwanese district courts in high numbers 292,392 (2006); 305,087 (2007); and 239,381 (2008).[65] In 2011, Texas which has roughly the same population size as Taiwan, comparably had 231,489 civil cases initiated.[66] Taiwanese litigiousness therefore seems on par with the United States.
Scholarship is a more believable Confucian concept that explains Taiwan’s lax piracy enforcement. Heidi Kalscheur makes clears that Confucianism emphasized “education rather than law as the best means for guiding the people.”[67] This principle of balancing towards scholarship, rather than copyright law enforcement, appears prevalent in many areas of Taiwan. The United States however appears to have different opinions regarding educational piracy.
Kenneth Chou, a medical student in the United States, knows the sting of American copyright enforcement. Chou borrowed a set of study materials, Kaplan lecture DVDs, from his school’s library. Chou copied the materials, and began selling the copies online, thus interfering with both Kaplan’s reproduction and distribution rights.[68] Chou’s enterprise was quickly hit with a lawsuit from Kaplan and ordered to pay nearly half a million dollars.[69]
In Taiwan, despite being carried out by commercial enterprises to a much greater degree, enforcement of illegal reproduction of educational materials is not nearly as stringent. The International Intellectual Property Alliance (“IIPA”) has pointed out that rampant illegal photocopying of books and journals is happening on university campuses.[70] The majority of Taiwanese students use illegally photocopied texts in the classroom.[71] These illegal texts have widely spread because they are available to students at greatly reduced prices.[72] Many Taiwanese see nothing wrong, “the theft of a physical book is considered more serious than the theft of the ideas contained in the book.”[73] Confucianism generally “does not recognize individual property rights . . . especially intellectual property rights.”[74] Under such a philosophy any material which is educational would be fair game to pilfer, provided the original source is not stolen. While such a law may have at once protected copyright holders when publishers had the only means of producing such material, today reproduction is simple. “Even if the photocopy shop was out of the picture, online piracy, particularly of textbooks and password-protected material, is on the rise in Taiwan, being made available mainly from servers/sites in China.”[75] Unlike the United States, in Taiwan, educational materials are stolen wholesale because education is valued over copyright. One Taiwanese student spoke about why she used copied textbooks throughout her undergraduate program, “we all know it is technically wrong, but we do it anyway. We are just students.”[76]
Taiwan’s governmental enforcement of copyright laws in scholarly settings appears little more than illusory. Perhaps the government fears the political backlash that would come from disrupting its citizens from educating themselves. Following raids to copy shops, conducted in the middle of the semester when there is less substantial likelihood of pirated materials, the Ministry of Education (“MOE”) and the Ministry of Justice concluded that such piracy is not a major concern.[77] The Recent IIPA reports show that the MOE is not taking steps to combat piracy on university campuses. In fact, the MOE blocks third-parties from investigating piracy on campus.[78] Rather, the MOE is leaving it up to the individual university to comply with copyright laws, but there is no independent auditing method through which MOE ensures compliance.[79] Such a hands off enforcement ensures that while the government turns it back Taiwanese students learn through pirated materials.
In many ways this justification for allowing the piracy of educational materials creates a slippery slope. The latest Hollywood blockbuster could just as easily be considered educational since many Taiwanese value learning English.[80] In August of 2014, Taiwan’s Ministry of Culture even funded a pirated version of the popular board game Settlers of Catan.[81] While the Ministry does not acknowledge that it funded copyright infringement it does highly praise the board game for being “educational.” Confucianism did not hold authors in high regard and therefore did not compensate them for their creativity, the Taiwanese do not appear to feel it necessary to enforce copyright if education is involved.[82]
The different cultures of the United States and Taiwan lead both countries to enforce copyright differently. The United States has a litigious culture and protects its copyright creators even when its citizens may benefit from pirates educational materials. Across the globe, Confucianism may have an impact on Taiwanese enforcement through a desire to preserve social harmony and its focus on education before intellectual property rights.
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Public Morality as a Factor
Pornography cases have revealed the role that public morality plays in both countries’ enforcement of copyright. In the United States pornography is protected under copyright law without regard to obscenity or illegality.[83] Up until recently Taiwan was very different.
Taiwan’s copyright enforcement institutions have previously refused to recognize pornography as worthy of protection for fear of eroding public morality. In a 1999 decision, the Taiwanese Supreme Court refused to recognize copyright protection for pornography because porn films are obscene materials.[84] It was common for Taiwan’s police to crack down on peddlers of pirated pornography, but only to punish those sellers for distributing obscene material, not for violating intellectual property rights.[85] Song Choul Hong explains that at one point, “Taiwan . . . [did] not permit pornography in the midst of a deteriorating moral climate. . . . [P]ornography [was] regarded as being directly associated with social evils, and [was] regarded as a devastator of morality.”[86] During this time, a group of fifty pornography producers filed a lawsuit against 10,000 Korean Internet users for copyright infringement, but were restricted from also filing against the Taiwanese due to the fact the pornography was not copyrightable in Taiwan.[87]
Adult videos have a long history of piracy in Taiwan. It used to be illegal to produce pornography in Taiwan.[88] However, the culture of young university students wanting access to this material helped spread piracy.[89] Entrepreneurs provided for this market by counterfeiting Japanese pornography. In the mid-90s, pirate groups peddled counterfeit VCDs by the roadside.[90] Soon the goods started showing up in Kwanghwa Market where gangs of teenagers sold pirated goods.[91] It didn’t take long, “by the early 2000s, pirate Japanese pornographic VCDs had already become a household name in Taiwan.”[92] Eventually these pirated videos appeared on DVDs, and later the internet.
Pirates did not have to fear enforcement for infringement of copyright. Although the Taiwan Intellectual Property Office had tended to recognize adult films’ copyrights, regardless of obscenity, provided that they were original, no court would recognize such works as copyrightable.[93] Copyright holders could not enforce their rights, since prosecutors following the prior Supreme Court decision found that these cases were against the public’s morality and would not pursue charges despite complaints.[94] Operators of pornographic websites could find themselves completely exempt from state prosecution if they located their servers in foreign countries to avoid being identified.[95]
Since this time, the Taiwan Intellectual Property Court has been established and tackled the issue. On February 20, 2014, the Taiwan Intellectual Property Court (“TIPC”) extended protection to pornography in Taiwan Intellectual Property Court Criminal Judgment 101 Xing-Zhi-Shang-Yi-Zi No. 74 (2012) (智慧財產法院刑事判決101年度刑智上易字第74號, hereinafter, “AV decision”). In the AV decision, Japanese pornography producers filed a lawsuit against two men, who were prosecuted by the Taipei District Prosecutor’s Office, and sentenced to six months in prison.[96] Taiwan’s prior Supreme Court decision had no binding effect, and this allowed the TIPC to ignore its decision and offer protection to pornography. Perhaps this signals a change in Taiwan being more open minded about its citizen’s morality. Another possibility is that it offers courts another tool to halt the spread of pornography outside of Taiwan’s obscenity laws. What remains to be seen is how this decision will affect future enforcement.
The victory for pornography producers could be entirely illusory if they are unable to have their rights enforced. Nelson Lu writes that, “even if copyright owners are successful in proving their cases to Taiwanese courts, they may also have to contend with the attitude of many Taiwanese, including law enforcement officials, that copyright infringement is a minor moral offense.”[97] Piracy of pornography is not an offense that many Taiwanese seem to care about. It may be similar to criminal offenses in the United States for adultery or sodomy that are rarely prosecuted. According to reports, “Taiwanese IP Criminal cases apparently receive less attention because IPR crimes earn less credit for officers than other crimes, thus diminishing a police officer’s chances for promotion.”[98] Since there is very little reward, a Taiwanese police officer would probably rather pursue fruitful cases, not ones which require him to crack down on his neighbors’ private viewing activities.
This leaves the enforcement of rights up to the copyright holder, which without government institutional help may be problematic. In Taiwan before a criminal piracy suit will even be brought, the copyright holder must file the civil complaint.[99] There are three problems with this system. First, the copyright holder must be aware of an infringing activity, which is difficult because piracy is not a public crime. Second, copyright holders may not be able to recover because pirates seldom have deep pockets. Third, prosecutors will use their discretion and often not bring the criminal suit. By removing the potential risk of jail time, prosecutors are removing a huge detriment to pirates.
It appears that in the United States and Taiwan, to break the public moral argument that copyright infringement is not a big deal, the threat of harsh enforcement may be all that copyright holders need. In the United States copyright holders use pre-litigation demand letters. These letters are typically mass mailed to infringers with offers to settle the matter for a couple thousand dollars. These settlements are typically far less than statutory mandated amount.[100] However, these rights holders are able to receive many quick payouts without having to institute litigation. To carry out such a process, copyright holders often hire “copyright trolls” who find and collect on infringing activity.[101]
Whether copyright holders use such a system of enforcement in Taiwan is yet to be seen, however many signs point to it becoming an efficient way to enforce copyright. With the recent AV decision, pre-litigation demands may soon become as common as they are in the United States. At Indiana University Student Legal Services, several students come in every semester after being caught by copyright trolls for illegally downloading illicit moves over peer-to-peer (“P2P”) networks. Often they state, “I want this to go away and I do not want anyone to find out about this.” Copyright trolls move from campus to campus across the country catching those illegally pirating media. There is no reason they could not begin concentrated efforts in Taiwan. Many of those who are caught often want to pay the lower fine and not face the potential of a trial or a future large reward against them. With a trial comes publicity, and few want to have their pleasurable viewing activities known by all. Similarly, in Taiwan, the concept of losing face may force users who download pirated shows into settlement.[102]
Although public morality has protected pirates in the past it appears that such times are changing. Taiwan is becoming more like the United States, recognizing copyright despite its opinions about the underlying material. There still remains the prejudice that many people in Taiwan do not see copyright infringement as anything other than a minor moral offense. However, since copyright holders in both countries have the potential for large statutory rewards, copyright holders may be able to enforce their rights through pre-litigation demand letters.
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Economics as a Factor
The evolution of how individuals consume media has prompted a serious need for copyright holders to change the way they enforce their rights. In Taiwan and the United States many factors have made it cost prohibitive for individuals to enforce their copyrights in all but the most extreme cases. This section will examine how the consumer shift to digital media consumption has increased the amount of piracy; compare the costs and rewards of bringing a copyright infringement action; show how current enforcement mechanisms are economically inefficient; reveal how market forces gravitate towards piracy; and finally reveal how the results of a recent United States Supreme Court will impact the global economy.
The Digital Age
Taiwan has always been notorious in its piracy of physical goods, however increased broadband internet access has put the United States (and many other countries, for that matter) on par with Taiwan for piracy of digital media. In the past fifteen years, both countries have seen an explosion in piracy due to the internet. One Taiwanese recollects that at one point the bar to counterfeit goods production was human and financial resources, however today “any internet surfer can easily infringe copyright works by simply clicking the mouse and uploading or downloading copyright works.”[103] All over the world, the Internet has changed the way people access and distribute copyright works.[104] The threat is that anyone can easily make multiple perfect copies of an original with little effort, thus taking exclusive rights from the copyright holders.[105]
The problem of enforcement thus comes from the costly and time consuming nature of locating every individual. P2P file sharing allows thousands of copyright works to be uploaded and downloaded simultaneously. The sheer number of individuals engaged in such behavior makes it economically infeasible for copyright holders to sue every individual infringer. This is a problem in both the United States and Taiwan. Both countries appear to be losing the digital enforcement battle, but for different reasons.
The Costs and Rewards of Copyright Enforcement
Economic interests help provide a basis for the United States and Taiwan’s fight against piracy. Taiwan sets laws and carries out enforcement to improve its reputation for copyright protection and to avoid trade sanctions.[106] Taiwan depends heavily on its American export market, and cannot avoid sanctions if it is to remain a global economic player.[107] The United States acts in its own interest as the largest producer of copyrighted material.[108]
Powerful lobbies represent the copyright industry’s economic interests.[109] However, in both countries the costs of enforcement are not justified by the reward.
The need for enforcement of physical media is diminishing in the face of digital media. For physical media pirates, “the threat of a strong penalty for convicted infringers is enough to keep the expected costs of infringing largely above the anticipated benefits for the infringers.”[110] Commercial pirates run the risk of being caught with pirated physical media and facing jail time and large statutory fines.[111] Since there were relatively few pirates in the United States, the cost of being caught was at a socially acceptable level.[112] However, the widespread use of digital media has altered the structure of enforcement costs. Heavy fines cannot deter massive copyright infringement carried out by noncommercial pirates.
As piracy becomes socially acceptable copyright holders have several problems with enforcing their rights. Roughly 46% of American adults and 88% of Taiwanese adults have pirated digital media.[113] Although, Taiwan is significantly higher, both countries are high by any standard. As the number of infringers rises, the purpose of the fine, deterrence, appears to be diminishing.[114] Because of the great expenses involved with litigation copyright holders must be selective with who they bring a lawsuit against. This results in an unlucky individual with no commercial intent being slapped with a colossal judgment that is deemed “unfair to society.”[115] To the public it appears that industries are greedy and targeting the everyday man. These notions make piracy even more justified to society
In the United States, the Recording Industry Association of America (“RIAA”) has used this type of selective enforcement followed by spectacular punishment. For sharing approximately 30 songs, Jammie Thomas-Rasset and Joel Tennebaum were ordered to pay $1.5 million and $675,000 respectively.[116] The lack of enforcement resources has led the RIAA to pursue only a few high profile cases, and even though the RIAA was victorious in the courtroom, Tennebaum declared bankruptcy.[117] Thomas-Rasset similarly told the RIAA, who approached her with an offer to reduce her payment significantly in return if she become an anti-piracy spokeswoman, that she “would rather go bankrupt.”[118] Pirates can easily see that if you are unlucky enough to get caught, declare bankruptcy. While the RIAA could attempt pre-litigation demand letters, such an enforcement method will still likely result in high costs with very little benefit. Illegally downloaded music does not have the same social stigma as pornography, and many pirates may not mind taking a chance to litigate the matter in court. If they lose there is always the option to declare bankruptcy.
The costs of bringing infringement actions in Taiwan are very high, but the benefits are even lower than those in the United States. Statutory fines and the amount of cases per capita is much lower, despite higher rates of infringement. Judges often throw out the criminal suit leaving only the civil suit to litigate.[119] The lack of criminal penalties and reliance on civil suits is not a significant deterrent for the majority of people.[120] In the United States the threat of a high fine may encourage a settlement, but in Taiwan the much smaller civil penalties carry little weight. A judge may assign statutory damages “if both actual damages and actual profits are hard to prove.” [121] However, since many judges still find these matters to not be egregious, the fines have historically been low for piracy.[122]
Both countries face high costs with very little payout when enforcing digital copyright laws. In the United States digital piracy is socially accepted by many. While industry groups like the RIAA’s may be awarded large rewards, those slapped with such judgments often declare bankruptcy and the judgment does not affect the majority of pirates. In Taiwan the fines are too small and the judges are too lenient, therefore the majority of people do not worry about digital copyright enforcement.
Reliance on Internet Service Provider Enforcement is Inadequate
The media industry’s inability to effectively target individual infringers has led it to lobby for Internet Service Provider (ISP) liability. This next step allows copyright holders to target deeper pocketed ISPs, if the ISPs facilitate infringement through (1) the ISPs hosting illegal copyright content or (2) by turning a blind eye while a user pirates content through his ISP’s connection. The United States promulgated such third party liability through influential cases and its enactment of the Digital Millennium Copyright Act (“DMCA”).[123] Similarly, in 2009, Taiwan passed the ISP Liability Limitation Bill.[124] Both laws have been ineffective.
Both laws disallow ISPs to engage in willful blindness. The ISP must adopt policies for terminating repeat infringers, designate an agent to receive notice of alleged infringement, and must comply with notice and takedown.[125] The laws have proven effective at taking down infringing material from hosted websites.[126] The problems arise for ISPs in adopting policies to terminate repeat infringers, also known as customers.
Both countries have adopted graduated response systems. These systems allow an ISP to warn, throttle, or terminate the service of customers who download or upload infringing material.[127] Taiwan’s three-strike-system did not curve illegal downloading from Chinese websites.[128] In a six month study of Taiwan’s largest ISPs it was found that only “a very low percentage of the already-low number of warning messages were forwarded to the ISP’s subscriber.”[129] The United States’ six strike system has similarly been ineffective.[130] After a user receives a warning they often do not stop pirating, but rather become smarter pirates and mask their IP addresses.[131] Graduated response systems do not deter online copyright infringement because they rely on an ISP to cancel its customer’s service in order to be effective. Although these systems sufficiently satisfy both countries’ laws, no ISP is going to be overly zealous about its enforcement for fear of losing a paying customer. These laws are currently on the books, but it is likely that they will continue to be applied only infrequently.
Lobbyists’ have unsuccessfully attempted to correct this problem through laws that would block websites that allegedly are used in copyright infringement. The Stop Internet Piracy Act (“SOPA”) and Protect Intellectual Property Acts (“PIPA”) were struck down in the United States following widespread protest through internet blackouts of popular web pages. In Taiwan similar bills have been thwarted by internet users who term them akin to China’s “Great Firewall.”[132] Laws that cut against net freedom resonate strongly with both countries, and therefore only the current system of ISP liability remains in place. However, this current system will not be robustly applied by any ISP against its customers.
The Fight Against Market Pressures
A broader consideration in following the enforcement of copyright is to consider the market in each country. It appears that in developed markets, copyright can be strictly enforced, however institutions will be more hesitant to harm a developing future market.
The disparity in wealth between the average Taiwanese and American is great, but commercial media is similarly priced. In Taiwan, wages are roughly half of what a similar job in the United States pays.[133] One would think that with all things being equal, goods would be half priced to encourage consumption. While this is the case in many areas such as food and clothing, media has remained relatively high priced.
Developing countries are unable to afford the premium price for such products. Taiwan’s Ministry of Economic Affairs acknowledged this problem stating, “[it] viewed imitation as a necessary process in the evolution of human civilization and believed that commercial counterfeiting is an inevitable phenomena in most developing countries.”[134] Further justification for Taiwanese avoiding paying such a premium can be found in the United States’ own history of piracy.[135] Taiwan is a developed country today. However, Taiwan’s recent past as a developing country still provides many with justification for lower copyright enforcement. This desire not to stunt its continued growth has resulted in Taiwan hiding behind the developing country shield a little too long. However, it will remain effective as long as industries do not price their products according to the market.
In Taiwan, many view piracy as a way to avoid the high priced market with little chance of being caught. Software piracy is only one example of this. Many people purchase computers with bootlegged programs already loaded on the hard disk.[136] Businesses routinely buy one or two pieces or software and duplicate hundreds of copies for their employees, because business owners see this as “a legitimate way to cut costs and expenses.”[137] Taiwan’s Intellectual Property Office openly discloses to businesses that doing so carries civil and criminal liability.[138] However, it also states that “criminal prosecution cannot proceed unless a complaint has been filed.”[139] Therefore, as long as a copyright holder does not find out about the infringing activity, businesses can refuse to comply with copyright law; in fact there is little incentive to comply. It is difficult for copyright holders to find proof of infringement to file a suit because many courts will not grant search warrants “based on the testimony of an informant, [and instead require] evidence such as screen captures that generally could not be obtained without a warrant.”[140] This type of Catch-22 situation offers ample protection to many pirates.
Deficiencies in Taiwan’s media marketplace have encouraged piracy and discouraged enforcement. The United States is the largest producer of copyright materials, however Taiwan does not always have access to these works. Taiwan has attempted to adapt to this, region free media players are common throughout the country.[141] However, the high expenses of importing has led many consumers to proceed down the route of piracy.
New technology has not only made piracy cheap, but convenient as well. A new phenomenon popping up in Asia which is difficult to enforce against is the media box. Through these boxes Taiwanese can watch all of the latest blockbusters and television shows through an easy to operate interface. Media boxes can be purchased for the low price of $30 USD and offer consumers a convenient way to access media. Such devices plug into televisions via HDMI and stream or download content to the box from infringing websites.[142] Since these boxes deal with foreign websites and mask IP addresses enforcement is almost impossible for copyright holders from a financial standpoint.[143]
Perhaps both countries should adjust to market expectations. In the United States, Legal streaming services have displaced some piracy.[144] Copyright holders may benefit by providing users access to convenient streaming services. As it stands right now, only media boxes provide such a service in Taiwan, and these devices are very difficult to enforce against.
Compared to Taiwan, the United States’ marketplace for media allows more consumers to access products legally. Americans generally have greater access to media and earn higher salaries, allowing them to easily purchase media. Taiwanese however see piracy as a legitimate way to cut paying high premiums for media that is often not available to them or will become available to them much later. A better method for both countries would be to adjust to market expectations and provide legal digital media services.[145]
The Impact of Kirtsaeng v. John Wiley & Sons, Inc.
The recent U.S. Supreme Court decision of Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013) will likely cause lasting effect to the copyright industry, piracy, and enforcement against it. The case involves a student from Thailand asking his friends and family to buy textbooks in Thailand and ship those books to him in the United States.[146] The books he received were identical to the same books sold in America, but they were purchased at a significantly reduced price.[147] American textbooks were regularly sold at a lower price in Thailand to meet the Thai market demands.[148] The student sold these Thai purchased books on eBay for a great profit. John Wiley and Sons, Inc. argued that 602(a)(1) of the Copyright act prohibited importing a work without the authority of the owner. However, Kirtsaeng prevailed under the fair use defense that allows an owner of a copy lawfully made under this title to sell or otherwise dispose of the copy without the copyright owner’s permission.[149] The Supreme Court held that there are no geographic restrictions on the first sale doctrine and that the copyright owner maintains control of the first sale only.[150]
Since the United States is the largest exporter of copyright goods, Kirtsaeng will likely have a large impact on Taiwan and the global economy. Different markets often demand that products be priced at different levels.[151] However, because of Kirtsaeng it is likely that copyright holders will increase the price of their products sold abroad.[152] Wilson explains that “if publishers are forced to sell their textbooks at the same high prices in other, more impoverished countries than the United States, it is likely that the publishers will see a drop in sales because students in those countries simply cannot afford higher prices.”[153] As consumers become less able to afford products they will resort to piracy. This has already been seen in Taiwan through the use of copy shops and media boxes. The effects of Kirtsaeng will likely then be felt by the United States since copyright holders will have to raise prices domestically to make up the difference when dealing with difficult markets.[154] The end result will be more piracy throughout the world.
Conclusion
Taiwan has made some astounding steps forward against copyright piracy, however many factors still prevent it from enforcement levels which are comparable to the United States. While both countries come from a history of piracy, Taiwan’s is more recent and the natural acceptance of piracy in a developing country is more difficult to shake. The copyright laws of both countries are similar, but Taiwan’s copyright laws were not developed out of its own needs for intellectual property protection needs but rather forced upon it by the United States. Taiwan’s long history with Confucianism has led it to not enforce against the piracy of educational materials. Only recently has Taiwan held pornography to be copyrightable, however public morals may be preventing enforcement against pirated adult films. Litigation against piracy is not as economically efficient in Taiwan as in the United States. However, both countries are facing new enforcement challenges with online piracy. Current reliance on ISPs to enforce copyright is misplaced, and rather both countries should adjust to Taiwan’s marketplace. Lower copyright enforcement rates in Taiwan are the result of a multitude of factors which help make Taiwan the country that it is today. While it may no longer be the King of Pirates, the weight of its crown can still be felt.
Citations
[1] Mac William Bishop, Notorious Pirate Taiwan Now Fights IPR Piracy, Asia Times Online (Oct. 7, 2004), http://www.atimes.com/atimes/China/FJ07Ad07.html.
[2] Andy Sun, From Pirate King to Jungle King: Transformation of Taiwan’s Intellectual Property Protection, 6 Md. Contemp. Asian Stud. 1, 6 (1997).
[3] U.S. Const. art. 1 § 8, cl 8.
[4] The Federalist No. 43 (James Madison).
[5] Phillip V. Allingham, Dickens’s 1842 Reading Tour: Launching the Copyright Question in Tempestuous Seas, Victorian Web (Jan. 5, 2001) http://www.victorianweb.org/authors/dickens/pva/pva75.html.
[6] Id.
[7] Id.
[8] Id. (“Young Charles Dickens, in the process of being lionized by his Yankee readers, dared to assert that, had American publishers paid Sir Walter Scott appropriate royalties for his works re-printed in the United States from Marmion in 1808 to Castle Dangerous in 1832, he would not have faced bankruptcy in the middle of his career and would not have died at the age of 61, broken in body and mind by years of financial difficulties, and unjustly deprived of his rightful income. Further, he alluded to the disgraceful treatment of Captain Frederick Marryat (1792-1848), retired Royal Naval officer turned author, who established residency by means of his 1837 tour, but was subsequently denied copyright protection by American courts unless he were prepared to renounce his status as a British subject and become an American citizen.”).
[9] Id. (Consumers would have to choose between authors such as Edgar Allen Poe and Nathaniel Hawthorne’s newest works which were priced at $1.00 compared to a pirated piece of British literature costing $0.25. Such a practice ran contrary to copyright law, and discouraged American production of new works, because most consumers would purchase the cheaper pirated British literature. Naturally American book, newspaper, and magazine publishers were utterly opposed to losing such a lucrative revenue stream and successfully lobbied against losing their lucrative pirate revenue stream).
[10] Id.
[11] Id.
[12] Fred Kaplan, Dickens: A Biography, 127-28 (1988).
[13] Id.
[14] See Cameron May & Kuang-Wei Chueh, A Comparative Study of Fair Use Between America and Taiwan, 25 Chinese (Taiwan) Y.B. Int’l L & Aff. 128 (2007).
[15] Marshall A. Leaffer, Understanding Copyright Law, 2 (5th ed. 2010).
[16] See 2013 Copyright Info-Graphic, IIPA http://www.iipa.com/pdf/2013_cpyrtrpt_infographic.pdf (last visited Nov. 26, 2014) (“The core copyright industry is growing faster than the National Economy and accounts for nearly 5% of American employment. The Foreign Sales and Exports are over $142 billion (more than aerospace, agriculture, food, and pharmaceuticals).”).
[17] See, e.g., Leaffer, supra note 15, at 3. (For a closer look at changes to copyright law).
[18] Id. at 3-11.
[19] Ping-Hsun Chen, Choice of Law: An Unresolved Question in the First Adult Video Copyright Case of the Taiwan Intellectual Property Court, 3 Nat’l Taipei U. Tech. J. Intell. Prop. L. & Mgmt. 56, 58 (2014).
[20] Leaffer, supra note 15, at 11.
[21] Shuo Che Chou, Taiwan’s Copyright Law’s Evolution and Enforcement, Int’l IP Pol’y (Oct. 25, 2011). http://siulaw.typepad.com/international_ip_policy/2011/10/taiwans-copyright-laws-evolution-and-enforcement-shuo-che-chou-to-be-presented.html.
[22] Id.
[23] Id.
[24] Id.
[25] Chang-Fa Lo, External Influences Mixed with Traditional Elements to Form its Unique Legal System, in Law and Legal Institutions of Asia: Traditions, Adaptions, and Innovations 92 (E. Ann Black & Gary F. Bell eds., 2011).
[26] Id.
[27] Chou, supra note 21.
[28] Id.
[29] Id.
[30] Id. (i.e. 30 years after author’s death for literature, but only 10 years for photos and movies. Much less than the 70 years granted in America.).
[31] Id.
[32] Id.
[33] Id.; John T. Masterson, Internatonal Trademarks and Copyright: Enforcement and Management, 18 (2004) (“The Office of the United States Trade Representative completes the Special 301 report annually. Under Section 301 of the Trade Act of 1974 the USTR must by April 30 of each year: “identify (1) those foreign countries that (A) deny adequate and effective protection of intellectual property rights, or (B) deny fair and equitable markets access to United States persons that rely upon intellectual property protection.” 19 U.S.C. § 2242(b). Another additional category is priority watch list, which although does not have any sanctions, does identify countries “with serious intellectual property rights deficiencies,” which are not yet placed on the priority watch list.”).
[34] Masterson, supra note 34, at 20.
[35] Chou, supra note 21.
[36] Id.
[37] Chen, supra note 19.
[38] Id.
[39] Chou, supra note 21.
[40] Taiwan Intellectual Property Court, http://ipc.judicial.gov.tw/en/ (last visited Dec. 3, 2014).
[41] James Gibson, Will you go to Jail for Copyright Infringement, Media Inst. (May 25, 2011) http://www.mediainstitute.org/IPI/2011/052511.php.
[42] Caseload Statistics 2013 Summary, U.S. Cts. http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics/caseload-statistics-2013/caseload-summary.aspx (last visited Dec. 3, 2014).
[43] Joe Karagis, Copyright Infringment and Enforcement in the US, Am. Assembly Colum. U. 2 (2011), at http://piracy.americanassembly.org/wp-content/uploads/2011/11/AA-Research-Note-Infringement-and-Enforcement-November-2011.pdf.
[44] Software Piracy Rate: Countries Compared, Nation Master http://www.nationmaster.com/country-info/stats/Crime/Software-piracy-rate (last visited Dec. 3, 2014).
[45] Intellectual Property Rights Seizure Statistics Fiscal Year 2013, U.S. Dept. Homeland Security (2014) http://www.cbp.gov/sites/default/files/documents/2013%20IPR%20Stats.pdf.
[46] Martin Dimitrov, Piracy and the State: The Politics of Intellectual Property Rights in China, 112 (2009).
[47] Number of Filings and Disposition of Civil Cases in the First Instance of the Intellectual Property Court, Taiwan Intell. Prop. Ct. (last visited Dec. 3, 2014) http://ipc.judicial.gov.tw/ipr_english/index.php?option=com_content&view=article&id=132:table-1-number-of-filings-and-dispositions-of-civil-cases-in-the-first-instance-of-the-intellectual-property-court&catid=53:statistics&Itemid=105.
[48] International Intellectual Property Alliance 2013 Special 301 Report on Copyright Protection and Enforcement in Taiwan, IIPA 1, 4 (2013) [hereinafter IIPA 2013 Special 301 Report], http://www.iipa.com/rbc/2013/2013SPEC301TAIWAN.PDF
(In 2012, only 68 criminal internet piracy cases were filed. Of those, only twenty resulted in judgments. Only three of those judgments resulted in prison sentences).
[49] Id.
[50] Nation Master, supra note 44.
[51] Yun-Hsien Diana Lin, Civil Mediation in Taiwan: Legal Culture and the Process of Legal Modernization, U. Pa. E. Asia L. Rev. 191, 194 (2011).
[52] Id. at 211.
[53] Id.
[54] Id.
[55] Id. at 210.
[56] Id. at 196.
[57] Id.
[58] Ken Kieke. Toward a More Litigious Society, Culture.tw (July 18, 2008), http://www.culture.tw/index.php?option=com_content&task=view&id=779&Itemid=156 (Examining how following a traffic accident it is common to see Taiwanese assessing damages, agreeing who was at fault, and deciding how much money should change hands as a result. This author has witnessed such transactions many times).
[59] Dimitrov, supra note 46 at 112.
[60] Lo, supra note 25 at 116. (An estimated 46% of Taiwanese feel the judicial system is unfair, 33% of which feel it is because of the judges themselves).
[61] IIPA 2013 Special 301 Report, supra note 48.
[62] See RIAA v. The People: Five Years Later, Electronic Frontier Found. (Sept. 30, 2008)
https://www.eff.org/wp/riaa-v-people-five-years-later (Discussing record industry pushes to send pre-litigation letters to infringers).
[63] Lo, supra note 25 at 114-15.
[64] Id.
[65] Id. (Criminal cases for these years are 346,426 (2006); 446,131 (2007); and 445,679 (2008)).
[66] State Court Caseload Statistics, Courtstatistics.org (last visited Dec. 3, 2013), http://www.courtstatistics.org/Other-Pages/StateCourtCaseloadStatistics.aspx.
[67] Heidi Kalscheur, About “Face”: Using Moral Rights to Increase Copyright Enforcement in China, 39.2 Hastings Const. L.Q. 514, 515 (2012).
[68] Kim Zetter, Med Student Turns to Test-Prep Piracy, Wired.com (Jan. 27, 2010), http://www.wired.com/2010/01/medical-student-piratey.
[69] Id.
[70] IIPA 2013 Special 301 Report, supra note 48.
[71] Id.
[72] Id.
[73] Nelson C. Lu, To Steal a Book is no Longer Such an Elegant Offense: The Impact of Recent Changes in Taiwanese Copyright Law, 5 Asian Am. L. J. 289, 300 (1998).
[74] Kalscheur, supra note 67.
[75] IIPA 2013 Special 301 Report, supra note 48.
[76] Interview with Sheng-Ya Peng, Indiana University L.L.M. Student (Nov. 27, 2014).
[77] IIPA 2013 Special 301 Report, supra note 48 at 6.
[78] Id.
[79] Id.
[80] Liz Shackleton, Films Pirated by 73% of Taiwanese, Says Report, ScreenDaily.com (Aug. 21, 2014), http://www.screendaily.com/territories/asia-pacific/films-pirated-by-73-of-taiwanese/5076487.article.
[81] Shame! South Taiwan’s Newest Educational Tool is a Plagirization of Famous Boardgame, AppleDaily.com.tw (Aug. 5, 2014), http://www.appledaily.com.tw/realtimenews/article/new/20140805/446196.
[82] Lu, supra note 73.
[83] See, e.g., Mitchell Bros. Film Grp. v. Cinema Adult Theater, 604 F.2d 852, 860 (5th Cir. 1979) (“[P]rotection of all writings, without regard to their content, is a constitutionally permissible means of promoting science and the useful arts.”).
[84] Lin Shu-Yuan & Sofia Wu, Porn Film Copyright Hinges on Court Ruling, Taiwan News (Apr. 14, 2010), http://www.etaiwannews.com/etn/news_content.php?id=1227297&lang=eng (citing 88 Tai-Shang-Zi No. 250 (最高法院88年度台上字第250號)).
[85] Id.
[86] Seong Choul Hong, Copyright Protection v. Public Morality: The Coypright Protection Dilemma of Pornography in a Global Context, 8 Asian J. WTO & Int’l Health L. & Pol’y 301, 324 (2013).
[87] Id. at 333.
[88] Heung-Wah Wong & Hoi-yan Yau, Japanese Adult Videos in Taiwan, 61 (2013).
[89] Id. at 65.
[90] Id. (“VCDs are a standard digital form for recording motion pictures on compact discs.” Although they are not common in the United States, they still can be found throughout Taiwan, despite the advent of better technology such as DVDs and Blurays. A blank CD-ROM can be obtained for as little as 5NT and cold for six times that amount).
[91] Id.
[92] Id.
[93] Yulan Kuo & Yu-Jia Yen, Pornographic Films are not Works under Taiwanese Copyright Law, Lexology.com (Apr. 24, 2013), http://www.lexology.com/library/detail.aspx?g=e5a1f589-4bc0-414a-af88-7fdcbbc749eb.
[94] Id.
[95] Wong, supra note 88 at 62.
[96] Taiwan Intellectual Property Court Criminal Judgment 101 Xing-Zhi-Shang-Yi-Zi No. 74 (2012) (智慧財產法院刑事判決101年度刑智上易字第74號, hereinafter, “AV decision”).
[97] Lu, supra note 73 at 299.
[98] IIPA 2013 Special 301 Report, supra note 48 at 4.
[99] Id.
[100] See 17 U.S.C. § 504(c)(1)–(2). (If the infringement was innocent, the court can reduce the minimum award. These damages can be awarded in whatever amount the judge or jury deems “just” in a range between
$750 and $30,000 per infringed work, and up to $150,000 per work if infringement was willful); In Taiwan. Copyright Act Article 88 (If it is difficult for the injured party to prove actual damages in accordance with the provisions of the preceding paragraph, it may request that the court, based on the seriousness of the matter, set compensation at an amount of not less than ten thousand and not more than one million New Taiwan Dollars. If the damaging activity was intentional and the matter serious, the compensation may be increased to five million New Taiwan Dollars).
[101] Copyright Trolls, Electronic Frontier Foundation, https://www.eff.org/issues/copyright-trolls (last visited Dec. 3, 2014).
[102] Taiwan – Language, Culture, Customs and Etiquette, Kwintessential, http://www.kwintessential.co.uk/resources/global-etiquette/taiwan.html (last visited Dec. 3, 2014) (Face (Mien-tsu) reflects a Taiwanese’ reputation, dignity, and prestige. It is not much of a stretch to see how a person’s face could be lost and tarnished by their link with illegal pornography).
[103] Jerry Jie Hua, Establishing Certainty of Internet Service Provider Liability and Safe Harbor Regulation, 9 Nat’l Taiwan U. L. Rev. 1, 4 (2014).
[104] Id.
[105] Id.
[106] Soojin Kim, In Pursuit of Profit Maximization by Restricting Parallel Imports: The U.S. Copyright Owner and Taiwan Copyright Law, 5 Pac. Rim L. & Pol’y J. 205, 220 (1995).
[107] See Sun, supra note 2 at 5 (Taiwan is the 7th leading export market of the United States, not bad for a country which is only the combined size of Maryland and Delaware).
[108] Kim, supra note 106.
[109] Id.
[110] Oliver Bomsel & Heritiana Ranaivoson, Decreasing Copyright Enforcement Costs: The Scope of Graduated Response, 6 Rev. Econ. Res. Copyright Issues 13, 14 (2009).
[111] Id.
[112] Similarly, since piracy was common in Taiwan its lax punishments were socially acceptable.
[113] IIPA 2013 Special 301 Report, supra note 48 at 5.
[114] Bomsel, supra note 110.
[115] Id.
[116] TPP’s IP Enforcement Chapter: Innovation, Fairness, and Access to Culture as Collateral Damage, Pub. Knowledge 1, 2 (2012).
[117] Jaikumar Vijayan, Q&A: Tenenbaum Says He Faces Bankruptcy After $675K Piracy Verdict, Computer World (Aug. 7, 2009), http://www.computerworld.com/article/2526895/technology-law-regulation/q-a–tenenbaum-says-he-faces-bankruptcy-after–675k-piracy-verdict.html.
[118] Betsy Isaacson, Jammie Thomas-Rasset, Infamous Filesharer Sued By RIAA, Refuses to Work for RIAA to Settle Her Debt, The Huffington Post (July 12, 2013) http://www.huffingtonpost.com/2013/07/12/jammie-thomas-rasset-riaa_n_3586750.html.
[119] See Chou, supra 21 (In 2001 14 students made headlines when they were arrested for illegally sharing mp3s online. There was never any punishment or a trial).
[120] Daniel Dimov, Differences in Copyright Enforcement between the U.S. and China, Infosec Institute (Dec. 17, 2012) http://resources.infosecinstitute.com/copyright-enforcement-the-u-s-and-china/.
[121] Lu, supra note 73 at 290.
[122] Id.
[123] See Hua, supra note 103 at 5 (Discussing Section 512 of the DMCA and Metro-Goldwyn Mayer Studios v. Groksters, Ltd. (Liability was found in Grockster’s modified P2P service because it was marketed to former Napster users, lacked filtering tools (to diminish infringement), and made money by selling advertisement space.)).
[124] Amanda Liu, Taiwan: Copyright Act Amended, Managing IP (Mar. 28, 2014) http://www.managingip.com/Article/3324865/Taiwan-Copyright-Act-amended.html.
[125] See 17 U.S.C. § 512; Taiwan Copyright Act Art. 90 (a reading of both shows that Taiwan’s bill closely follows the DMCA).
[126] International Intellectual Property Alliance 2014 Special 301 Report on Copyright Protection and Enforcement in Taiwan, IIPA 1, 164 (2014) [hereinafter IIPA 2014 Special 301 Report], http://www.iipa.com/rbc/2014/2014SPEC301TAIWAN.PDF (Reporting industries state the takedown rate in Taiwan is over 90%).
[127] Liu, supra note 124.
[128] IIPA 2014 Special 301 Report, supra note 126.
[129] Id.
[130] Ryan Gallagher, Bandwidth-Throttling Copyright Enforcement System Launches Across U.S., Slate.com (Feb. 25, 2013) http://www.slate.com/blogs/future_tense/2013/02/25/six_strikes_copyright_enforcement_system_launches_will_throttle_your_bandwidth.html.
[131] Id.
[132] Maira Sutton, Taiwanese Users Thwart Government Plans to Introduce Internet Blacklist Law, Electronic Frontier Found. (June 3, 2013) https://www.eff.org/deeplinks/2013/06/taiwanese-users-thwart-government-plans-introduce-internet-blacklist-law.
[133] See Taiwan Average Monthly Wages in Manufacturing, Trading Econ. http://www.tradingeconomics.com/taiwan/wages-in-manufacturing (last accessed Dec. 3, 2014) (Taiwan’s wages in manufacturing $NT 278.38 = $8.96USD/hour August 2014); See United States Average Monthly Wages in Manufacturing, Trading Econ. http://www.tradingeconomics.com/united-states/wages-in-manufacturing (last accessed Dec. 3, 2014) (US wages in manufacturing = $19.59/hour August 2014); Wendy Zeldin, Taiwan: Cabinet Approves, Increase in Minimum Hourly Wage, Library of Congress (Sept. 28, 2014) http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205403347_text (The Taiwanese minimum wage is NTD109 = $3.51 and the American minimum wage is $7.25).
[134] Sun, supra note 2.
[135] Id.
[136] Copyright in Taiwan, 123HelpMe.com (Nov. 16, 2014) http://www.123HelpMe.com/view.asp?id=35228.
[137] Id.
[138] Copyright in Taiwan Frequently Asked Questions, Taiwan Intellectual Property Office http://www.tipo.gov.tw/lp.asp?CtNode=6825&CtUnit=3316&BaseDSD=7&mp=2 (last visited Dec. 3, 2014).
[139] Id.
[140] IIPA 2014 Special 301 Report, supra note 126.
[141] Kim, supra note 106 at 205 (A decade ago, U.S. media estimated that sales of parallel imports accounted for approximately six billion dollars of total retail sales in the United States annually).
[142] IIPA 2013 Special 301 Report, supra note 48.
[143] Id.
[144] Karagis, supra note 43 at 5 (46% of music pirates indicate they pirate less because of the emergence of streaming services like spotify. Netflix has resulted in a reduction of 40% for video pirates).
[145] See generally Collin McHenry, The Future of Media Distribution: How the Shift to an Intangible Medium Signals the End of Region Based Restrictions (Jan. 6, 2014) (unpublished note) (describing a system which provides worldwide access to media would create a profitable relationship to both consumers and producers).
[146] Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013).
[147] Id.
[148] Id.
[149] See 17 U.S.C. § 109(a); Kirtsaeng,133 S.Ct. 1351 (2013).
[150] Id. at 1371.
[151] See generally George Pike, Kirtsaeng’s Impact Still Resonates, 30 Info. Today 1 (2013) (Highlighting reasons products are priced at different levels in different markets. One reason is the consumer’s ability to pay.).
[152] See Owen Lee Wilson, Does Kirtsaeng v. Wiley Open the Door for an Abuse of the First Sale Doctrine, 43 J.L. and Educ. 581 (2014).
[153] Id.
[154] Id.