This follow-up to “The Split (or How The Law Can Learn To Stop Modern Piracy And Illegal Downloads)”1 aims to explore the details of the philosophical rationale of the modern state of copyright legislation, and the validity thereof within the film industry. A brief description of the history and evolution of copyright can be found in the original article. However this article aims to focus specifically on the theoretical underpinnings, juxtaposing the competing justifications of piracy and copyright legislation, specifically in the context of the film industry.
The more legitimate justifications for piracy can be whittled down to laissez-faire anti-monopolistic liberalism (the idea that public utility requires that the productions of the mind should be diffused as wide as possible which can be traced back to the 16th/17th Century),2 and the utilitarian value it may actually bear to creators. Copyright legislation on the other hand seems to be justified on the basis of its aim to protect the economic and moral interests of authors. In theory, both these warring justifications may be valid – but this subsection aims to look at them in a practical light, illuminated by facts, statistics, and practices from the film industry in order to determine which theoretical justification is best aligned with reality.
Laissez Faire Liberalism and Utilitarian Value
It has been suggested that the industry, and society as a whole, benefits from the freedom of business and information, which is facilitated by piratical action. This is in stark contrast to the pro-copyright campaign that aims to equate piracy with theft, arguing that piratical activities effectively steals from the gross revenue of commercial films and infringes on the meritocratic entitlement of its creators. In truth, although the concept of “meritocratic entitlement” still endures, the popular opinion that piracy directly reduces a film’s potential gross revenue has generally been discounted with films like The Dark Knight,3 Avatar,4 The Hobbit, Django Unchained,5 and many more being both pirated and profitable with record-breaking numbers. In fact, it is impossible to find cases where commercial failure was a result of piracy. For instance, despite the fact that 47 Ronin,6 the second largest box-office flop of all time, was the most pirated film the weeks following its release,7 its commercial failure is attributed not to piracy, but to its poor critical reviews, lack of authenticity, opening date, casting, and excess time in post-production.8
In fact, it may be argued that movie piracy has a positive impact on the quality of films released. For instance, it may be argued that the reason behind the successes of The Dark Knight and Avatar was because they were so ‘incredible’ that people felt they had to see it in the theatres. This was in part attributed to the fact that the films were shot in IMAX and used revolutionary 3D technology. The film industry sells an experience, and piracy raises the bar for them, increasing non-price competition, forcing them to create an experience that is more unique and spectacular – an experience that people would be willing to pay for. This argument shows that the historic anti-monopolistic justifications of piracy are still valid in light of the current realities of the film industry.
Furthermore, piracy may actually be of true direct value to creators within the film industry. Piracy have become so commonplace, that the industry itself, particularly independent filmmakers, actively uses them in a manner similar to that employed by Issac Newton and Alexander Pope to publicise their early works.9 As Winans elaborates, “The torrent community spread [her movie] more effectively than any decent-budget ad campaign could have”, keeping the film out of obscurity.10 Other industry advocates of piracy, such as King – director of Steal This Film, acknowledge that for smaller, independent films, piratical distribution is more sensible financially.11
Some advocates, such as Neij of PirateBay go so far as to argue that online piracy is in fact a precursor for a business model that could largely benefit big Hollywood companies. He argues that Hollywood is missing an opportunity, suggesting that if movie and music industries set up their own torrent sites and monetize it through advertisements, “we would be out of business”.12 Such a model is not so outlandish. Hulu, for instance, successfully relies on a similar model.
Conversely, it could be argued that the studios, producers, and distributors behind the film should be free to disseminate their work in any way they see fit, and not be strong-armed by piracy into a particular mode of distribution. Despite this, it is not too farfetched to believe that piracy could be so beneficial that it is in fact justified. Could the fact that an illegal act benefits a specific class, and potentially the industry as a whole, justify it and therefore render the law itself backward and potentially obsolete, ultimately suggesting that copyright legislation is driven by primitive and possibly out-dated understandings of property and entitlement? This is a more elemental jurisprudential question about the nature of law as a whole, whose breadth extends past the remit of this article.
Protection of Authorship
In truth, describing the current understanding of property and ownership in the context of copyright legislation as ‘primitive’ and ‘out-dated’ is misleading. The values and rights that piracy legislation aims to protect are ancient – but they are absolute as opposed to ‘out-dated’.
Such an argument goes further than simply suggesting that piracy can never be justified. It suggests that the protection of the authorship of creators is of an actual substantive benefit that outweighs any alleged benefits piratical practices could have. One may argue that anti-piracy legislation consequently encourages learning, research, and creativity. If anti-piracy legislation were effective, the profits of filmmakers would arguably be maximised, which could be argued to be a further incentive to create more films. That may be true, but the problem therein is that this would be an incentive for the creation of films as they are, not for research, innovation, and creative advancement. Conversely, as established earlier, piracy itself acts as an incentive for movies to become ‘more unique and more spectacular’.
On the other hand, considering the difficulty in implementing and enforcing anti-piracy legislation, it could be argued that the mere presence of anti-piracy legislation creates a nominal safeguard, which, even though it ultimately fails, may be sufficient to encourage a creator to create. This could explain why film production outside Hollywood, particularly in the UK, and the production of more experimental ‘art-house’ movies, are on the rise, despite the undeniable effects of piracy.13 Ultimately though, the actual substantive impact of anti-piracy legislation seems to be limited, with some writers in fact suggesting that the current anti-piracy legislation and case law tends to be counter-productive, encouraging rather than discouraging piracy.14
Although it may also be alleged that anti-piracy legislation has some success in protecting the “moral” interests of creators, within the film industry, this is really a non-issue as this refers to the actual content of the pirated work, not its mode of distribution. Firstly, the huge budgets that would be required to make spurious copies of movies make it impossible. Furthermore, as audiences of pirated products seek authenticity, there would be no economic demand for spurious copies. And finally, it is almost impossible for a film to be used for anything outside of its creator’s spiritual interests. The purpose of pirates and filmmakers are the same – to keep the film out of obscurity. It could be argued that movies which are ‘leaked’ before their release date may breach the maker’s moral interests,15 as at that point in time the filmmaker only intended for a select group of people to watch it. However, although pre-release piracy may be seen to “undermine the enormous efforts of the filmmakers and actors”,16 whilst arguably having “no meaningful impact on the box office”,17 this breach of the maker’s moral interests is not as a result of piracy per se. Rather this is due to a breach of trust by the select group of people the film was disseminated to, or a breach of privacy if the pirated copy was sourced through a hacking. Piratical distribution in and of itself cannot be seen as infringing on the creators moral interests.
Although on a balance of the two theoretical standpoints above laissez-faire liberalism seems better aligned with the realities of the film industry, piratical action being illegal is still certainly the conventional approach, and some value lies in this. Therefore, although these justifications are polar opposites and they propose different ideas, in reality, the law has to find some balance between the two. The reality of piracy, and its legality, within the film industry is not black and white, but rather, it is Technicolor. For instance, in Canada, distinctions have been made between downloading and uploading as well as between the different forms of media being pirated – with music piracy for instance being treated very differently from film piracy. Although the anti-piracy law in Canada has been heavily criticised,18 maybe a similar standpoint needs to be taken in England and Wales, and elsewhere in the world.
Image by philentropist
- Ordinary Times, August 4, 2016.
- Donaldson v Beckett, (1774) 1 E.R. 837.
- Ernesto, “Top 10 Most Pirated Movies of 2008” (TorrentFreak, 11 December 2008), accessed 6 December 2014.
- Ernesto, “Avatar Crowned The Most Pirated Movie of 2010” (TorrentFreak, 20 December 2010), accessed 6 December 2014.
- Jessica Derschowitz, “‘The Hobbit,’ ‘Django Unchained’ named most pirated films of 2013” (CBS News, 31 December 2013), accessed 6 December 2014.
- “47 Ronin (2013) – Box Office Mojo” (Box Office Mojo, 4 December 2013), accessed 6 December 2014
- Gabriela Vatu, “’47 Ronin’ Is the Week’s Most Pirated Movie” (Softpedia, 24 March 2014), accessed 6 December 2014.
- Kirsten Acuna, “Report: Why Keanu Reeves’ ’47 Ronin’ Was A Huge Box-Office Bomb” Business Insider (Seattle, 3 January 2014).
- Adrian Johns, Piracy (The University of Chicago Press 2009) ch. 3.
- Anthony Kaufman, “Piracy May Be An Indie Filmmaker’s Best Friend: Discuss.” (Indiewire, 12 October 2011), accessed 2 July 2014.
- Geoffrey Macnab, “Film Production Levels on the rise” (ScreenDaily, 9 April 2014), accessed 20 October 2014.
- Rebecca Giblin, Code Wars: 10 Years of P2P Software Litigation (Edward Elgar 2011).
- Brent Lang, “‘Expendables 3’ Flop Shows Danger of Pre-Release Piracy, Expert Says” (Variety, 18 August 2014), accessed 24 November 2014.
- Christine Spines, “‘Wolverine’ leak: Fox issues a statement vowing to prosecute” (Entertainment Weekly, 1 April 2009).
- Friedman Josh, “Lions Gate is investigating ‘Hostel’ pre-release piracy” (Los Angeles Times, 1 June 2007.
- International Intellectual Property Alliance (IIPA), ‘2013 Special 301 Report On Copyright Protection And Enforcement’, 8 February 2013, accessed 5 December 2014.