This final chapter is more prescriptive than the preceding two (The Split, and V for Vindication), focussing on the scope for reform of anti-piracy law. The first half of this chapter will look to describe the regulatory framework that would best rectify the flawed focus of anti-piracy legislation described in The Split. However, V for Vindication established that a more laissez-faire liberalist culture could be beneficial for all parties. As such, the conclusive section of this chapter will look to determine what reforms could be made to better situate the law in this preferred theoretical framework – finding a ‘Technicolor’ balance between the ideals of authorship and laissez faire liberalism. This analysis would be channelled through Lessig’s socioeconomic understanding of regulation[1] – a broad, complex interaction of four interdependent forces: law, markets, social norms, and code/architecture.

Successfully Protecting Authorship

Law

As established in The Split, for numerous reasons, legal deterrence tends to be ineffective against the consumers of pirated material[2]. However, its prospects in controlling the propagation of BitTorrent clients is unassessed. Accordingly, two possible legal frameworks are proposed – the “Reasonable Alternative Design” (RAD) model[3], and the “Scheduled and Controlled Software” model.

RAD proposes that liability should be attached where “the foreseeable risks of harm posed by the [software] could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor”[4]. More specifically, RAD legislation would force software developers to incorporate advanced and regular auto-update facilities to actively target piratical use of BitTorrent[5].

However, considering that “software is so easily reproduced that it can take off overnight, [it seems unfair that] a developer who unexpectedly finds that his code is phenomenally successful [is made] liable for not fully anticipating the consequences”[6]. Furthermore, the jurisdictional issues that would hamper enforcement would be insurmountable as the global nature of the Internet means that users could still obtain non-limited clients from jurisdictions whose legal systems did not incorporate the RAD framework.

An alternative would be to schedule and control BitTorrent clients in a manner similar to drugs with liability imposed on end-users in possession of the software ranked as dangerous. However, commercial users (e.g. Facebook) would be able to apply for ‘licenses’ to permit their use of such technology – so such restrictions will not affect the legitimate users of BitTorrent technology.

This circumvents the aforementioned jurisdictional issues as liability is imposed on end-users, rather than software distributors. Furthermore, the activities of common end-users on the Internet are extremely and increasingly traceable[7]. Conversely, such a proposal may be seen to contravene libertarian socio-political principles. This will be discussed in more depth in the relevant subsection.

Markets

As noted in V for Vindication, some advocates of piracy argue that Hollywood is missing an opportunity with piracy. This is a prospect which is even more relevant now, as film studios are rapidly refocussing the distribution of their content. The success of Hulu, a free streaming service whose main income stream is advertising revenue[8], may illustrate the viability of P2P distribution as a commercial venture. More importantly, if more movie studios get involved in P2P/online distribution, the increased competition would raise the low barriers to entry into the P2P distribution market which will consequently reduce the number of indices and clients available and therefore make infringers easier to police.

This would probably be heavily discouraged by cinema chains and filmmakers as they feel that one can only find the ‘authentic’ experience of a film in the cinema[9] and that the use of VoD encroaches upon their business.[10] The irony here is clear. The above proposals were submitted as options available in protecting the authorship of filmmakers, but it seems that they themselves may not be happy with them. A cinematic release is typically the most expensive part of film distribution, and most films barely break even at the box office[11]. However, creative authorship, not profits, are not what these proposed regulatory forces are intending to protect. Although ordinarily the protection of authorship is seen as a logical consequence of the reduction of online piracy, under the proposals above, this logical relationship may be broken. Online piracy may be reduced, but the authorship and preferences of filmmakers may still be neglected and nonetheless, unfortunately, the reforms may still be seen as successful.

Social Norms and Education

Schemes to manipulate social norms and realign the public’s moral compass to associate piracy with physical theft have failed so severely[12], that they themselves have become subject to creative parody[13]. As of today, piracy is vindicated by its social acceptance and ubiquity[14]. One could suggest that prostitution or drugs are analogous situations where the consensus on certain activities has been successfully manipulated. However, the campaigns in those fields have centred upon the personal, physical, and psychological harm that may be suffered.

The presence of such harm does not necessarily guarantee greater success in the manipulation of social norms. For example, the Temperance campaigns during Prohibition Era America[15] failed to adjust the moral climate of the country despite being largely focussed on the psycho-social detriments of alcohol consumption. Conversely, it could be argued that social norms evolve with time due to the implementation of law and manipulation of markets. For instance, the 1885 Criminal Law Amendment in England and Wales effectively made prostitution less socially palatable[16]. Ultimately, the only thing that these examples illustrate is that the pliancy of social norms is unpredictable and not necessarily linked to either the nature of the harm or the legal landscape relating to the activity.

However, there is one noteworthy difference between the Prohibition Era example and the case at hand. Prior to the Volstead Act, commercial possessors of alcohol were ordinarily within their legal rights and thus their irritation with the Volstead Act was justified.[17] Conversely, in the case at hand, consumers of piratical products do not have the justifications of legality. Few will rise to defend an activity that is illegal already and this may help the cause.

Code and Architecture

Lessig argues that the architecture of the Internet has the potential of becoming a regulator trough “a kind of physics [which poses] a physical constraint on the liberty of someone to [perform a specific action]”[18]. However, there is limited scope in terms of how the code of BitTorrent clients can be manipulated due to the fact that BitTorrent clients are largely created and controlled by people who seek to propagate piracy. The only way the architecture of BitTorrent clients may be manipulated is if they are no longer controlled by such people. One way would be the adoption of the above market proposals which will effectively replace the current administrators of piratical software with film studios.

Ultimately, before changes in the architecture of BitTorrent clients can be considered, the party with administrative influence over the clients must be changed. An economic coup would be required, but when that happens, that may in itself contribute so much to mitigating piracy that no change in code is needed at all.

The Result: Authorship Protected

The reforms, particularly the ‘Scheduled and Controlled Software’ legal model, suggests treating software like drugs by legally equating financial harm with personal physical harm. Although unlikely, if this is accepted, then the regulatory framework proposed above may actually be successful in mitigating piracy and increase the profits of the already profitable film studios, but it will also negatively affect cinema chains, alienate the most renowned creators in the film industry, deincentivise innovation in cinema, and rid the industry of alternative opportunities for distribution for independent filmmakers. The success of these proposals will likely lead to the loss of creativity, the loss of the very soul, of the film industry.

Entering Technicolor

As established in V for Vindication, a ‘Technicolor’ balance between protecting authorship and encouraging laissez-faire liberalism is required. Thus, this section will look to define what changes to the current regulation could be made to resituate the legal landscape into this preferred theoretical framework. In many ways, what would be proposed is a regression towards a stage similar to the earliest stages of copyright legislation[19], when its purpose was to stimulate and facilitate creativity and research into new, distinct, and special ways films can be distributed, thus further securing the position of cinema chains, the revenue streams of studios, and the preferences of filmmakers, without diminishing the creative impetus that online piracy holds over the film industry. Nonetheless, efforts do need to be made against piratical action that may be infringing upon the moral interests of filmmakers – for instance pre-release piracy.

There is some benefit in leaving the laws against piratical action extant, regardless of how ineffective they are as these protections may be of at least some nominal benefit. Furthermore, the proposed reforms in the previous subsection are unrealistic. It will be extremely difficult to realign society’s moral compass so as to distinguish financial harm from personal harm on a basis of degree rather than type. Perhaps in fact, society’s moral compass need not be altered at all. It is submitted that it would be better to scale back on attempts to realign the social moral compass as such efforts are futile and the resources would be better spent elsewhere, for instance in the encouragement of research into new cinematic technology through the use of adverts, public policies, and subsidies. There is great scope for further development in the film distribution industry. Past successes include IMAX and 3D advances. Failures include Smell-o-vision[20] and AromaRama[21]. This is both a combination of a manipulation of social norms and education and markets, working together to encourage studios to stay in the cinema distribution system – appeasing cinema chains and traditional filmmakers. Additionally, in the long run, this may reduce any alleged financial impact of piracy, in fact leading to the preferred outcome of the cinematic experience becoming so distinctive that it cannot be recreated at home, without removing the creative drive that piracy has over the industry.

Ultimately, the only reason social norms would need to be profoundly altered would be if piracy is indicative of the public being unappreciative of the efforts of creative authors of the film industry, which would suggest that society does not value the moral rights or interests of filmmakers. Fortunately this is not true and can be tangibly proven by the Nielsen ratings of the Academy Awards[22], or more accurately by the significant contribution recent and past film releases consistently make to pop culture and the zeitgeist.

In terms of addressing piratical activity directly, not much needs to be changed. Legal efforts do need to be marginally refocused, to focus on piratical activity that significantly infringes upon the moral rights of creators – such as pre-release piracy, rather than the thinly spread poorly-focussed ineffective mess it is at the moment. Any changes to the text of the law in this regard will still result in the same inefficiencies as described in The Split, so rather, what may be required is simply a reallocation of resources in this regard. Currently the law seeks to target all acts of piracy in unison. Rather, it could be weighted. Pre-release piracy could be weighted heavier and prioritised higher, making propagators and downloaders of those files specifically more likely to be caught and liable for more severe offences. This staggered weighting of the offences would make the law more focussed and consequently, more effective.

The Result: Technicolor Achieved and Conclusions

In many ways this trilogy as a whole has justified the current regulatory framework regarding piracy. This is because, rather than looking at the short-term goal of mitigating piracy, it has considered the entire industry as a whole, particularly the importance of creativity and the influence piracy has over it. A few reformative suggestions have been put forward, which may help protect some of the moral interests of filmmakers. These protections are important because, if instituted, they help to further drive creativity in the industry. As such, what has been envisioned is the ideal entertainment industry, and how the regulatory frameworks can be altered to shift the industry from what it currently is to what it ought to be – one where the importance of creativity regains its priority over the importance of profits under the guise of ‘authorship’. This is the very soul of the industry, and perhaps its intangible nature may make it difficult, but it ought to be the crux of all regulatory ambitions regarding piracy, and the film industry as a whole.

Image by gruntzooki

Footnotes:

1) Lawrence Lessig, Code 2.0 (Basic Books, 2006) 123

2) Trajce Cvetkovski, Copyright and Popular Media (Palgrave Macmillan 2013) 187

3) Peter S Menell and David Nimmer, “Unwinding Sony” (2007) 95 California Law Review 941, at 1022

4) ibid. 1010

5) ibid.

6) Giles Parsons, “Journal Article – Publication Review: Code Wars” E.I.P.R. 2012, 34(8), 573

7) Lessig (n 1) 54

8) Jason Kilar (CEO), ‘A Big 2012’ (Hulu.com, 17 December 2012) {Link} accessed 23 March 2015

9) Ben Garman, ‘Christopher Nolan, Jon Favreau, and More Sign Up To Combat Premium VOD Service’ (Collider, 1 June 2011) {link} accessed 24 March 2015

10) David Trumbmore, ‘Cinemark Threatens to Ban Tower Heist from its Theatres in Response to Universal’s VOD Plan’ (Collider, 6 October 2011) {link} accessed 24 March 2015

11) ‘Are Cinemas Under Threat From Video On Demand’ (Techradar.com, 4 December 2011) {link} accessed 24 March 2015

12) Piracy and Illegal File-Sharing: UK and US Legal and commercial responses (Chapter: Education and Awareness of Music Piracy) {link} accessed 22 March 2015

13) Trajce Cvetkovski, Copyright and Popular Media (Palgrave Macmillan 2013) 186

14) ibid. 191

15) The Drunkard’s Progress (1846) by Nathaniel Currier is illustrative example on display in the Muchele & Donald D’Amour Museum of Fine Arts {link} accessed 24 March 2015

16) Elie Halevy, History of the English People: The Rule of Democracy (1905-1914) (first published 1932, Benn 1961) 498–500

17) National Commission on Law Observance and Enforcement, Report on the Enforcement of the Prohibition Laws of the United States (Dated 7 Jan 1931) ch 3 ss 3 available at: {PDF}

18) Lessig (n 1) 82

19) Dr James Griffin, ‘Copyright evolution – creation, regulation and the decline of substantively rational copyright law’ [2013] 3 I.P.Q. 234, 236

20) J. Drobnick, The Smell Culture Reader (Berg Publishers 2006) 360

21) Bosley Crowther ‘Behind the Great Wall (1959) Smells of China; ‘Behind Great Wall’ Uses AromaRama’ The New York Times (New York, 10 December 1959)

22) Rick Kissell, “Update: Oscar Ratings Down 16%, Lowest in Six Years” (Variety, 23 February 2015) {link} accessed 19 April 2015