Updated 9:00 a.m.
Hana Beshara, the head administrator of Ninja Video, a TV- and movie-streaming site seized by Immigration and Customs Enforcement (ICE) in June 2010-and the subject of my article, "A Ninja In Our Sites," in the January/February issue of the Prospect-was sentenced on Friday to 22 months in prison. Upon release, she will be required to complete 500 hours of community service and pay $209,827 in restitution to the film industry's lobbying group, the Motion Picture Association of America (MPAA). Restitution payments have been set at $150 a month, which means Beshara is expected to give a chunk of her future income to the MPAA for a little over 116 years.
Federal prosecutors in Virginia are trying to send Beshara to prison sooner than later. At sentencing, the judge approved voluntary surrender, meaning Beshara would take herself to prison in a few weeks. Over the weekend Beshara criticized the prosecution and the terms of her sentencing on Facebook and chat boards. On Monday, prosecutors, apparently irked by her commentary, requested her voluntary surrender be withdrawn. Beshara will be back in court tomorrow for a decision. If the judge rules in favor of the prosecution, she will be sent directly to county jail until arrangements are made at a federal prison for her to serve out her 22 month sentence.
The ICE program, called "Operation In Our Sites," seizes the domain names of "rogue" infringers. In many cases, media companies employ their own investigative units and provide ICE agents with sites to target, as was the case with Ninja Video. While more than 100 websites have been seized, only a handful of the cases have led to criminal prosecutions. Beshara will be the first owner of a video-streaming site to go to prison as part of the ICE campaign.
Beshara's prison time could have been longer; federal prosecutors recommended a 46- to 57-month sentence. A central claim used to justify the sentencing guidelines came from the MPAA's "victim impact statement," which estimates that Ninja Video cost the film industry $180 million. (Two films used as evidence of infringement in Beshara's indictment were Iron Man 2 and Avatar, which grossed a combined $3 billion at the box office.) Prosecutors, who described the MPAA's estimate as conservative, acknowledged the sum far exceeds any reasonable expectation of repayment. Instead, "a significant term of incarceration is necessary to justly punish Beshara," prosecutors write in the sentencing memo.
Beshara's attorney, David Smith, says the MPAA's damage estimate "no doubt is an exaggeration." But he is satisfied with the result. The judge "gave her a sentence less than half of the bottom of the federal sentencing guidelines range," Smith says. "So the prosecutor didn't walk out of the courtroom happy at all." The judge also accepted Beshara's request to serve her sentence at a low-security prison in Alderson, West Virginia, the same facility where Martha Stewart served her time.
MPAA testimony was not the only evidence used to urge a harsher sentence. Exhibit 1 in the sentencing memo is "Rob Fischer, A Ninja in Our Sites, Am. Prospect Dec. 15 2011." Statements that Beshara made to the Prospect are excerpted to portray her as showing "disrespect for the law and inflated sense of self-importance."
The sentencing memo depicts Beshara's sense of influence as delusional, then asks the judge to make an example of her because of her high profile. "She feels a driving need to address a perceived constituency of fellow copyright infringers whom she believes are cheering for her and following her every move," prosecutors write. Three pages later, they argue that "owing to Beshara's unique prominence on the Internet piracy scene, [a 46- to 57-month sentence] would also reinforce to other viewers and distributors of pirated content that the United States considers copyright infringement-particularly large-scale, for-profit copyright infringement-a serious crime."
The sentencing memo also challenges what Beshara told the Prospect about her share of Ninja Video revenues: "Though Beshara appears to have been candid with the author about her role in recruitment and administration, Beshara downplayed her financial gain. She claimed to have split Ninjavideo.net's revenues 'more or less evenly among the other operators,' but the evidence shows that Beshara kept the vast majority for herself-roughly $210,000, in contrast with $58,004 for Dedemko, $33,859 for Mertzanis, $26,660 for Evans, and $5,250 for Andrew."
In a later section of the memo, prosecutors note that another site operator, Matthew David Howard Smith, earned $172,387 for his efforts. Ninja Video was originally Smith's idea, and he supplied the technical expertise that made the operation possible. The memo does not mention that the administrators worked for varying periods of time at Ninja Video.
The prosecutors also write that Beshara misrepresented her annual salary over the two and a half years of the site's existence: "Beshara personally retained nearly $90,000 per year-a far cry from the $33,000 per year she admitted to for publication purposes." In a footnote exploring additional costs, the prosecutors note that her income might have been lower. But, they write, "even if one accepted Beshara's suggestion that she alone paid NinjaVideo.net server costs (she did not), and that those server costs ran $3,000 per month (they did not), Beshara would have still personally enjoyed a salary of $54,000 per year-nearly double what she claimed to the reporter."
Beshara stands by what she told the Prospect. She says miscellaneous costs account for the remaining discrepancy between $54,000 and $33,000. In her defense sentencing memo, Beshara's attorney David Smith writes, "Ms. Beshara did not make a lot of money from her participation in NinjaVideo. She was only able to support herself through her position at NinjaVideo during the final 6 months of its operation. For most of her time at NinjaVideo, she also worked as a dentist's receptionist, earning $1100 to $1200 a month."
What will Beshara's case mean? Liel Leibovitz, a professor of media, culture and communication at NYU who has written extensively on intellectual property enforcement, says criminal prosecutions will not stop online piracy. "I do think that anyone with a tad of common sense would agree that piracy is indeed a very real problem. But it is primarily a problem of business models, not a problem of legislation, and certainly not a problem of law enforcement," Leibovitz says. "Survey after survey that I've seen shows something along the lines of 60 percent of Americans have admitted to illegally downloading some sort of content or another. Ask yourself if you truly believe that 60% of Americans would walk into a Barnes and Noble and steal a book. The question is obviously ridiculous. So why are Americans willing to behave a certain way when it comes to online property? One very convincing answer I think is media companies, particularly the music and movie industries, have failed to give consumers what they really want."
Peter Carr, a public information officer at the Virginia federal court where Beshara was tried, declined to comment, saying, "We'll let the document speak for itself."
Beshara e-mailed the following statement to the Prospect:
Ironically enough, once sentencing was done, there was a surreal feeling of liberation that washed over me. I knew they were going to lock me up. And I knew they wanted to make an example of me, but I didn't realize how much until I saw their caustic attacks on my character in the sentencing memo. I read my paperwork and smiled at what I once thought was the U.S. Justice System. In front of me, was a plea I was forced to sign-no matter what anyone says-a statement of facts that redefined our donations as a subscription system, and lie after lie after lie trying to convince people that NinjaVideo Administrators were rolling in the money.
The federal government targeted Ninja because we were strong and adult and intelligent and making waves, and they said as much themselves. They are the ones that "lack any respect for creativity and innovation." Copyright law as it stands does not protect the creators. And the point we tried to make was that these laws need reforming. That information should be free. That globalization insists on zero hour release to everyone, whether for a movie or a documentary or a presidential debate. And we reached out to the other side, begged for a change, for respect to be given to this generation, and we were rewarded with raids and broken hearts.
NinjaVideo has a soul. Ninja was a lifestyle, not just a website. It was a community based on honor and loyalty and love and sharing. It was the antithesis of everything we rallied against. One only had to be involved to know that. And Ninja will remain that. Ninja stood strong and did not bow to the government. And when I am free, 22 short months away, I will return and be re-embraced. It was all worth it. There is no remorse.
The Prospect will continue monitoring her case and post updates as soon as they become available.
