New weapons used in pursuit of film pirates

November 13, 2007 by Danny Auron

The lights dimmed. I settled into my seat. This was the world premiere of British film Boy A, screening one Sunday night at the Toronto International Film Festival. The standard TIFF advertisements for sponsors, etc. came and went. And then, a warning to would-be pirates: “Infrared and night-vision technology may be employed during this screening to prevent recording of this motion picture.”(This was the general idea.) An ‘Oooo’ went out through the audience, reminiscent of the reaction to a summons to the school principal’s office in grade school.

Welcome to the new war on copyright infringement of films in Canada. A dozen or so years after Napster brought the age of digital file-sharing to the mass public, government and enforcement agencies have begun to employ futuristic, invasive-sounding technology like “infrared” and “night-vision goggles” in their attempt to shut down a booming pirate industry. These technologies might seem to some better-suited to the 1970s Vietnamese jungle, or night-time bombing raids in the Gulf War. But just as government money poured into supporting those military endeavours, illegal copying and selling of movies costs Hollywood more than $6 billion a year (according to some estimates). Which makes this not just serious business, but a veritable economic war for the film industry.

May, 2007. Warner Bros., a Hollywood heavy-hitter, announces that promotional previews of movies in Canada are henceforth cancelled. Children and parents despair as advanced screenings of the new Harry Potter go by the wayside. But for Warner, it’s a signal to the Canadian government that it will no longer tolerate this country’s weak anti-piracy measures. Canada, on a ‘priority watch list’ of countries held responsible for illegal filming and copying of movies, lacks a criminal provision making it a felony to secretly film a movie inside a theatre (the US passed legislation to this effect two years ago).

Warner’s signal came across clearly, with help from their friends. Actor/Governor/Kindergarten Cop Arnold Schwarzenegger of California visited, in June, with Canadian PM Stephen Harper. Two days later, Harper’s government announced plans to amend the Criminal Code “to deter the unauthorized recording of movies.” Like OPP with radar on the 407, these criminal measures are now being backed-up by proactive measures on the part of enforcement officials.

Meanwhile, critics like Michael Geist have published opinions claiming that the industry’s claims are exaggerated and unsubstantiated, and that Canada has already done enough to be tough on piracy. However, Geist seems to miss the point - repeatedly. His final point, which makes claims about the toughness of Canada’s Copyright Act, is a perfect example of his failed critique. While he refers to the CA as preventing the making of a movie for use or sale, the provision is only effective in as far as it concerns the commercial distribution of movies filmed in theatres. Thus, it targets the pirated movies as they come to market, rather than attacking the source.

A macroeconomist will tell you that “the specificity principle” is a key to combating market problems – solve the problem precisely and at the source, rather than trying to mitigate the consequences. There is no reason to think differently here. And, as a user on Geist’s site points out, the ‘trumpeted’ arrests under this provision have not succeeded in getting bootlegs off the street – one only need visit Markham’s Pacific Mall (or the Spadina-College street corner, for that matter) to see the pirates’ ongoing victory in full-swing.

Geist also takes issue with the numbers and reports emanating from the film industry and IP watchdogs. Specifically, he points out wild fluctuations in reporting regarding Canada’s share of the illegal camcording industry, as well as “grossly exaggerated” figures in assessing economic harm. Very well – both claims may be out of line. But this does not seem to address the IP principle at the root of the issue. Regardless of the accuracy of statements being made, copyright infringement is taking place, with regularity, in Canada, and elsewhere. In suggesting that because the scale offered by industry insiders is out of whack, so too are efforts to curb piracy, Geist appears to be willing to stomach infringement of rights holders on a fairly sizeable level. In the school of IP, this might be worth a summons to the principal’s office. Even if Canada turns out not to be as major a contributor to the trade as insiders would have us believe, the government should be doing its best to stifle any part Canadians play in the piracy. Night-vision included.