When Culture and Copyright Collide:
A Discussion of File Sharing and the Film Industry
BA (Hons) Scriptwriting for Film and Television
Bournemouth Media School
AUTHOR’S DECLARATIONI declare that the work in this dissertation was carried out in accordance with the Regulations of Bournemouth University. The work is original except where indicated by special reference in the text and no part of the dissertation has been submitted for any other degree. Any views expressed in the dissertation are those of the author and in no way represent those of Bournemouth University. No part of this work has been presented to any other University for examination in the United Kingdom, overseas or on any other planetary body.
Table of Contents
Appendix A – Interview with Gary Fung
Appendix B – Interview with Phillip Bowman
The recent and exponential growth of illegal file sharing is becoming an increasingly important issue for the film industry, and has sparked much debate amongst Internet commentators regarding the difficult relationship between culture and copyright in the digital age.
While the Internet’s communal and global nature has undeniably increased the spread of culture, it has also jeopardised the effectiveness of the traditional protection that copyright offers to film makers to safeguard their artistic and financial security.
The film business is therefore claiming massive losses due to illegal file sharing, and warning that widespread ‘piracy’ is a threat to their Industry’s future. In retaliation against the file sharers, the Industry has implemented a wide-ranging plethora of anti-piracy measures in the hope of neutralising the problem, none of which have been successful in impeding its growth.
This dissertation will therefore aim to assess the extent to which the Industry’s claims of damages are accurate, why its anti-piracy measures have failed, and how much truth there is in the pessimistic forecasts that illegal file sharing threatens their entire Industry.
Finally and most importantly, however, this paper will look at the type of solutions that have been proposed for the future, and what actions the Industry may be forced to take; not only to ensure their own financial survival in a rapidly changing media landscape, but also to protect the valuable and sacred status of art and culture in society.
The growth of file sharing is increasingly becoming an issue of concern for the film industry. Its potential for widespread and costless replication of movies has understandably been perceived as a severe threat to their traditional methods of distribution, and hence the financial security of their current business model. Byers (et. al, 2003: 1) asserts that: “unauthorized copying of movies is a major concern for the motion picture industry,” with Bettig adding that:
“The film industry has been ringing alarm bells about the potentially crippling financial losses that might be incurred through the unauthorised (and more importantly unremunerated) copying, distribution and sale of its products.”
(cited Yar, 2007: 677)
Their fears can be broken down into three main issues, each of which this dissertation will attempt to assess critically with the overall goal of concluding the future of the Industry.
The first problem is that file sharing is increasing. It is becoming faster, cheaper and easier (Sheridan, 2007). If the Industry is right about ‘piracy’ causing financial damage, the problem can only inevitably escalate. The second problem is that all of the anti-piracy measures undertaken so far have failed to stop or impede the growth of illegal file sharing. Despite attacking the problem from various disparate angles, nothing has yielded any noteworthy success. The third and final problem, therefore, is a logical product of the first two: if file sharing is increasing and reducing income, and if they can find no resolution to inhibit its growth, then how will the Industry survive economically in the future?
The first question is perhaps the easiest to answer. Whilst file sharing technology incarnates everything that is illustrious about the Internet’s ability to spread culture, it also embodies the capacity for widespread and costless distribution of copyrighted content without compensating the authors. Digital technology, therefore, not only threatens to undermine the distribution methods that the Industry has controlled for decades, but also the effectiveness of copyright to safeguard the financial and artistic security of authors. Fowler notes that intellectual property has always been a unique and difficult thing to protect because it is intangible and “can be shared without being diminished” (2002: 26). In the past, movies were offered some form of protection by the impossibility, and later difficulty, of copying them. When this became easier, the Industry increasingly relied on copyright to protect “the creation of ideas by guaranteeing the rights of their creators to be paid for their inventions” (Fowler, 2002: 26). Doctorow summarises this relationship: “the reason that copyright exists is because culture creates a market for creative works” (2008: 13). Protecting the value of these creative works is therefore imperative to any Industry that retails them as a commodity. File sharing, then, in its ability to perfectly replicate media and freely distribute it across the world, is putting a lot of strain on the efficiency of copyright laws that were established in a time before the Internet. As Lessig says, “it is the nature of digital technologies that every use produces a copy” (2005: Paragraph 14), but, despite the rapid progression of technology, “copyright law treats copying as such a rarified activity, it assesses penalties that run to the hundreds of thousands of dollars for each act of infringement” (Doctorow, 2008: Paragraph 9). The Industry’s traditional defensive responses have therefore become a subject of controversy as “ordinary peoples’ ordinary activity [enters] into the realm of copyright” (Doctorow, 2008: 7). Most importantly, though, copyright laws are rapidly proving outdated in a new digital landscape that is changing the characteristics of sharing.
The second problem that the Industry has faced, and one which it is beneficial to understand before considering the future, is that every effort they have made to stem the growth of illegal file sharing has failed in the face of widespread disregard for the sanctity of copyright law. While nobody is arguing against the ideology that “artists and copyright holders deserve to be fairly compensated” (EFF, 2009: 1), many of the Industry’s attempts to prevent ‘piracy’ have still proved unpopular for the greater evils that are indirectly associated with them:
“Every day the collateral damage mounts – privacy at risk, innovation stymied, economic growth suppressed, and random unlucky individuals singled out for lawsuits.”
(EFF, 2009: 1)
Perhaps most damaging to the Industry’s campaign, however, is the perception that their labour to stop illegal file sharing, has, at times “[led] to the suppression of valuable, non-infringing expression” (Netanel, 2003: 19). The unique, grand, and often romanticised position that culture holds in our collective consciousness is increasingly being embodied by the Internet and, in particular, its collaborative community achievements such as peer-to-peer (P2P) technology, which directly links the media libraries of everyone on a network and allows them to quickly, cheaply and efficiently swap large quantities of media. There have therefore been, and will continue to be, strong reactions from free culture advocates when the Internet’s unbridled freedom appears threatened by censoring technology or legislation.
This, to an extent, is part of a wider problem the Industry is having with the changing attitudes of consumers. Central to the file sharing debate is the attitudes of digital consumers, or ‘pirates’ as the Industry often negatively brands them. Huang says, “because file sharing is controversial, whether to share or not is a matter of moral judgement” (2005: 38). However, with the massive and exponential growth of the illegal file sharing populace (Mennecke, 2008), the Industry’s blanket condemnation of it as morally reprehensible theft (MPAA, 2009a) would connote that society is in a state of mass moral decline. However, Snyder and Snyder argue that: “customers want to do the right thing, if they can” (2003: 3). If this is true, then there must be other significant factors involved in the polarisation of attitudes between the film industry and the ‘pirates.’ The conflict of opinions, and the resulting efforts by each party to protect what they perceive as rightfully theirs, has led Lessig to state “we are in the middle of something of a war here – what some call “the copyright wars” (2003: Paragraph 11).
It therefore seems arguable that, while neither faction wants to make sacrifices, and while the Industry’s resistance is ineffective, that “this war between rightsholders and consumers will never end and the rightsholders will never win” (Fung, 2008: Paragraph 5). If this is true, then the Industry may have no choice but to try and reconcile their business model with the changing attitudes of the ‘pirates’ and “rising consumer demand” (Sheridan, 2007: Paragraph 17). Whilst some argue that file sharing is not yet a threat to the film business (Chartier, 2009), “the “sky is falling” rhetoric of the ... movie business” (Snyder & Snyder, 2003: 3) certainly suggests that they believe their future financial security is being threatened. While Caine says that “art for art’s sake is all very well” (2008: Paragraph 11), the creation of the film industry’s artistic products, more so than in any other creative industry, are expensive, collaborative endeavours and therefore require significant financial investment. The stakes, consequently, are high. If future ‘piracy’ increases the risk of investment, then the Industry’s output could suffer, which would be detrimental to both their enterprise and the wider utility of culture.
The most pressing issue facing the film industry, therefore, is the unknown elements of how and where its revenue will come from in the future. Huang describes these as the “intrinsic problems in the current business model of the digital-content business upon facing the new wave of digital revolution” (2005: 39). Snyder and Snyder (2003: 1), however, reduce this dilemma to the most simple, problematic question at its core: “how are we going to get paid for the work we do with our minds?”
Netanel believes the solutions to the problem could range anywhere between the least drastic “digital lockdown” (2003: 7) – essentially a continuation of the existing struggle for proprietary control which has so far been fruitless – to the inception of “digital abandon” (2003: 7), a radical alteration of attitudes and policies that would release creative works to be freely used and distributed. Clark agrees that “our society will increasingly be forced to choose which vision of the future it would prefer” (2002: 10). Of course, while the latter may sound idyllic to the consumer, it does not solve the predicament of how the Industry will earn money from decriminalised sharing. Bowman believes this conundrum should be the penultimate concern of the film industry: “if you can solve how to collect revenue, then you’re going to make yourself a lot of money” (Appendix B: VI).
The final and ultimate purpose of this dissertation, therefore, is to study and assess the different constructive solutions that have been suggested. These propositions vary from providing competing alternatives to illegal file sharing technology and exploiting unexplored sources of revenue, to pioneering future innovation that would ensure the film industry continues to offer a quality and experience that piracy can not match. Indeed, Snyder and Snyder (2003: 3) do not believe that file sharing will pose a threat for the Industry as long as they find a way to effectively evolve:
“The question before us is not whether technologies such as peer-to-peer file sharing will undermine the role of the creative artist or the publisher, but how creative artists can leverage new technologies to increase the visibility of their work.”
This dissertation, therefore, will attempt to ultimately outline the choices and decisions that the Industry faces in the future to ensure its continued survival and prosperity. To answer the important questions that frame the debate, this paper will first draw on historical evidence to contextualise the nature and seriousness of the issue, and then investigate the reasons why previous anti-piracy endeavours have not been successful. Next it will compare and contrast the effects of ‘piracy’ on the music and film businesses, using the recording industry as an illustrative measuring stick of where the debate is heading (as the speed and simplicity of downloading films is quickly catching up with digital music consumption.) Lastly, it will delve into increasingly theoretical territory, but will attempt to rationalise future ambiguity by enlisting qualitative evidence from knowledgeable parties on both sides of the debate spectrum. On one side, giving his opinions and predictions on the future of the Industry and the proposed solutions is Phillip Bowman, a Film and Television Producer in Australia of over thirty years (Appendix A). On the other side, Gary Fung, owner of, “one of the world’s largest [file sharing] search engines” (Borland, 2006: Paragraph 8) isoHunt, gives evidence on the future of file sharing (Appendix B). His views are particularly relevant to this debate as he is currently being sued for copyright infringement by the Industry (Ernesto, 2009), and countersuing in what commentators believe to be a very significant legal action in the future of file sharing: “this landmark case might be the one to define how files can be distributed online” (Ernesto, 2008). Between them, and supported by academic evidence, their views represent a discerning insight into the future of the motion picture industry.
Chapter One – When Culture and Copyright Collide
When scrutinising the long history of copyright and ‘piracy’ for clues as to why file sharing is such a problematic issue to deal with today, there is a clear turning point where it is convenient and beneficial for us to intersect the story – “the Analog Period” (Doctorow, 2008: Paragraph 5). The advent and widespread dissemination of home entertainment technology, for example videocassette recorders (VCRs), had a sizeable and profound effect on every aspect of copyright. For the first time in history, it meant consumers could “do things that rose to the realm of copyright’s regulated activities with stuff lying around the house” (Doctorow, 2008: Paragraph 3). It also meant, for the first time, that ordinary people could tape movies straight from television, or make copies of each other’s films - all activities that the film industry had no control over, and which generated no new revenue for the producers of the content. Indeed, it could be called the beginning of modern ‘piracy,’ and consequently the catalyst for the media industry’s fight against it – the same fight that continues today. VCRs also forced a rethink of what exactly copyright was protecting. As Geller says, “only when media technology and market conditions made piracy profitable could copyright arise” (2000: 210). Previously, intellectual property was inseparable to the physical property that contained it, but with the revolutionary inception of the VCR it became the more intangible concept of ‘information’ that was stored on a medium. It could be transferred, copied and remixed with relative ease. Whilst copyright before protected physical products from theft, ‘piracy’ was a whole new issue because it could create a copy without removing the original. This alarmed the film Industry.
In the late 1970s and early 1980s, “Hollywood’s concern about its inability to curb the home video Industry led to a series of legal battles against the Industry” (Dobrow, 1990: 17). The film Industry believed that because the VCR could record movies from television or copy them tape-to-tape, potentially removing or skipping any commercials at will, that eventually the confidence to invest in the high-risk film business would shrink and perhaps even collapse. Indeed, Jack Valenti, head of the Motion Picture Association of America (MPAA) at the time, believed it was so serious that he famously said:
“The VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.”
(Valenti, 1982: Paragraph 37)
He argued that the VCR and blank tape “threaten[ed] profoundly the life-sustaining protection... on which film people depend... called copyright” (Valenti, 1982: Paragraph 6), dramatically stating “if what you own can’t be protected, you own nothing” (Valenti, 1982: Paragraph 9). While the first statement was proved ill-informed and sensationalist in hindsight by the subsequent boom in the video Industry – the $20 million the film Industry earned from pre-recorded video tapes in 1980 skyrocketed to $625 million in 1983 (Dobrow, 1990: 21) and continued to be a major Industry mainstay until the rise of DVDs in the late 1990s – his latter concerns remain relevant for the Industry today, particularly his fear of copyright protection being rendered futile by technology.
File-sharing on the Internet, of course, incarnates precisely this fear. As Netanel (2003: 3) says:
“Digital technology makes it easy for Internet users to distribute multiple perfect copies of a work throughout the world without compensating the authors or other copyright holders.”
Indeed, the ease with which copyrighted files can be found, copied, downloaded and stored has led to “a roman feast of copyright infringement” (Lessig, 2005: 4), a widespread and growing subculture of sharing that bypasses the payment and compensation normally involved in transactions between consumers and culture. Doctorow says, “the majority of Americans engage in infringing file sharing” (2008: Paragraph 18). Even as far back as 2003, this number was believed to be over 50 million people, and over 200 million worldwide (Snyder and Snyder, 2003). The global nature and sheer scale of the practice has the Industry understandably worried, as Netanel (2003: 2) says:
“They fear that P2P file swapping poses a mortal threat to the copyright system that sustains authors, artists, and a million-billion-dollar-a-year Industry.”
Dan Glickman, Jack Valenti’s replacement and current president of the MPAA, has publicly proclaimed file sharing as the "greatest threat" to the movie Industry’s profits in its 110 year history (Glickman, cited Gross, 2004: Paragraph 4), and anti-piracy adverts from the Federation Against Copyright Theft (FACT) predict “piracy... will destroy our film and video industry.” But is Glickman just echoing the same ill-founded paranoia that led Valenti to prophesise the VCR as the Industry’s downfall? Or is the file sharing phenomenon a completely different and more damaging kind of threat? Certainly, Glickman is not alone in his pessimistic forecast:
“If economic losses are an indication of a crime’s seriousness, and if current estimates are to be believed, then film ‘piracy’ constitutes a crime-wave nearing epidemic proportions.”
(Yar, 2005: 677)
In 2004, there was believed to approximately 400,000 illegal movie downloads per day (Mercuri, 2004: 28) a scale which is much greater than anything from the analogue era. Another factor that could make file sharing a different and greater threat than video piracy is movie ‘leaks’ – when a film becomes available on the Internet even before its theatrical release date. Indeed, Warner Brothers partly accredited the enormous financial success of The Dark Knight (Nolan, 2008), the second highest grossing film of all time (Goodwin, 2008), to preventing a leak:
“The studio has been keen to highlight the part played by its secret six-month, multimillion-dollar anti-piracy campaign to ensure digital copies of the film didn’t leak out before it opened. Warners counts it a triumph that the first pirated copy didn’t appear on the Internet until 38 hours after the film was released.”
Despite some obvious successes, though, the L.E.K. Consultancy, in an analysis for the Motion Picture Association (MPA), calculated that the U.S. motion picture studios lost $6.1 billion to piracy in 2005, and the worldwide Industry lost $18.2 billion (L.E.K., 2005: Slide 4). However, many scholars have an issue with these statistics when they are quoted as evidence of damages to the Industry because they represent “opportunity costs” as opposed to physical theft which represents a “direct cost” (Huang, 2005: 52). This means they do not take into account many important hypothetical factors. For example, people who paid to see the film in the cinema and then downloaded an illegal copy would still register as a loss to the MPA. The likelihood that many consumers would download a free film that they would not pay to see in the cinema is also a significant consideration. Finally, by cataloguing every instance of file sharing as a measure of lost revenue, it does not take into account any positive effects.
In particular, the by-product of “free publicity” (Byers et al, 2003: 619) should not be underestimated. Put simply, the more people who see a film, regardless of the medium or whether they paid for it, the more they will talk about it and subconsciously advertise it those around them. Indeed, according to the L.E.K.’s analysis of illegal file sharing data, the largest group of ‘pirates’ is 16-24 year olds (59% of Americans and 71% worldwide) (L.E.K., 2005: Slide 12). However, 12-24 year olds are also the most frequent moviegoers (MPAA, 2007) despite having the lowest income as a demographic group (U.S. Census Bureau, 2009: 443). This may, perhaps, suggest that the two distribution methods can coexist peacefully and that the average moviegoer does not see downloading ‘pirated’ films as a replacement for the cinema experience.
Further to the idea of file sharing coexisting with legitimate distribution, some believe it may even be beneficial to the Industry:
“The movie industry isn’t suffering because of activity on the Internet. Quite the opposite – the Industry is making more money than ever!”
(Snyder & Snyder, 2003: 2)
There is certainly evidence to suggest this is true. Despite the MPAA-supported statistics stating losses from ‘piracy,’ 2008 was the “highest-grossing year in film history” (Chartier, 2009: Paragraph 1), growing on 2007 which was also a record-breaking year (Raby, 2008). An article from The Guardian, too, hints at this paradox. Gibson says, “not even James Bond has been able to avoid defeat at the hands of Internet pirates” (2006: Paragraph 1), quoting that over 250,000 copies were downloaded in the first few days after its release. However, the same article also goes on to say “record audiences turned out over the weekend for the opening of Casino Royale” (Gibson, 2006: Paragraph 2). Coming back to the point of file sharing acting as a source of free marketing, it is possible that the box office numbers were helped by widespread downloading. The relevance of box office statistics to damages are also doubted by Dixon, who says “theatrical releases really can be considered an extended advertisement for the DVDs, where the real money is made” (cited Mercuri, 2004: 28), a statement supported by the fact that DVD is “the fastest growing home electronics development in the history of the world” (Snyder &.Snyder, 2003: 2).
However, it may also be too early to conclude that file sharing does not damage the film Industry. As we have seen, the majority of evidence on the subject is conflicted, but one fact remains undisputed and that is that file sharing is growing (Roettgers, 2009). While Bowman believes that ‘piracy’ is not yet a threat because file sharers still need to be “sophisticated computer user[s]” (Appendix A: IV), he accepts that “when you can download [a film] in a minute, or even half an hour... that’s going to provide a whole new set of concerns” (Appendix A: VIII). However, all of the evidence suggests that digital files are on their way to becoming the most recent phase in the technological evolution of media distribution. Indeed, while the nature of movies has provided them with slightly more natural protection than music files, Huang believes “bandwidth is the only buffer impeding the growth of unauthorized swapping of video files” (2005: 37). Therefore it is perhaps understandable that the Industry continues to fight online ‘piracy’ through a variety of different methods.
As the first chapter explained, the Internet has changed and “is changing every form of traditional media” (Sheridan, 2007: Paragraph 11). The film and music industries have perceived these changes as a significant threat to the value of their products and responded by using a diverse range of techniques to reduce the spread of potential damages. This chapter will look at the various anti-piracy measures that the Industry has deployed, ranging from the most unsophisticated and technical of attempts to obstruct the technology, to the inherently problematic and punitive use of legal action. It will also explain, with particular reference to the nature of the Internet and the changing attitudes of consumers, the factors that connect these attempts in their failure.
However, it is first important to explain that not every industry greeted the World Wide Web as a threat, and many embraced the technology as a beneficial addition to their current distribution methods. The news and print industry is a particularly good example. When the Internet facilitated the creation of online newspapers that could be updated in real time and accessed from anywhere, the most innovative of the major news companies seized the opportunity to establish an online presence in a new diversified marketplace; without sacrificing or damaging their original distribution method. As Sheridan (2007: Paragraph 11) says:
“Now I can get live, up-to-the-minute news for free, on thousands of different sources across the Internet - and The New York Times still exists.”
For a short time, the recording business too remained unharmed by the Internet. While they may have lacked the foresight to see the massive potential for growth, the earliest forms of file sharing were crude and non-threatening to them. MP3s were scattered, low quality, time consuming to obtain, and “hardly a replacement for CDs” (Sheridan, 2007: Paragraph 3). More importantly, though, the trading began over small scale conduits like college networks, which were not only small enough to avoid alarming the music business, but also more private and hence difficult to police.
However, in pace with the progressive and rapid evolution of the Internet, the first popular file sharing application became available in 1999, a response to the growing demand for software that took advantage of the Internet’s global nature and networking potential to distribute media files. This program was called Napster and by 2000, 6.7 million people were using it to trade music (Burkart & McCourt, 2003: 339). The music industry was understandably concerned about the effect this could have on their profits. As Sheridan notes, there was no “historical precedent for an Industry’s products suddenly being able replicate and distribute on their own, without cost” (2007: Paragraph 4) and so it is perhaps unsurprising that the record labels took legal action against Napster (Strang, 2005), successfully shutting it down in 2001 for copyright infringement as all of the files accessible through Napster were hosted on a centralised server. This case marked the beginning of the Industry’s ongoing anti-piracy campaign, or as Netanel (2003: 7) describes it:
“[The] story of the copyright industries increasingly brazen – some say desperate – attempts to shut down P2P file-swapping networks, disable P2P technology, and shift the costs of control onto third parties.”
While the Recording Industry Association of America (RIAA) celebrated the closure of Napster as a “clear victory” (RIAA, 2001), the seeds of a free music library had been sewn and it would not be long before other peer-to-peer software grew to replace it. Not only that, but Napster’s successors improved on the underpinning technology by removing the need for a central server, muddied the legal waters by directly linking users’ computers and drew more combatants, including the MPAA into the copyright mêlée by accommodating other kinds of files like movies. Fowler, therefore, calls the RIAA’s win, “a hollow victory, since successors have eliminated Napster’s Achilles’ heel” (2002: 28). Huang agrees that “recent technology makes peer-to-peer data transfer... less susceptible to legal intervention” (2005: 51).
It seems to be an intrinsic value of file sharing technology and philosophy that any attempts to censor them are not only destined to fail, but also to make future systems more resistant to suppression. Indeed, the history of file sharing is a story of revolutionary technology striding ahead of laws and social customs, and then mutating into a different and more complex threat every time it seems close to being controllable. For example, when Napster was shut down for hosting copyrighted materials, its replacements decentralised the responsibility to the users. This led to lawsuits being filed against individual file sharers, which we will discuss in more detail shortly. The online community responded by setting up IP address filtering technology and community file sharing sites (where users have to be invited to participate, thus minimising the risk of being monitored.) Seemingly foiled again, the Industry tried “placing faulty files on P2P networks, to make P2P file sharing less desirable” (Netanel, 2003: 18). In response, site owners added content rating and verification devices so users could report working and non-working files. When analyzing this pattern – the tit-for-tat between innovators and legislators – it is clear to see why many anti-piracy measures have failed. Huang (2005: 37) summarises:
“Legal remedies to prevent infringement seem destined to be ineffective, and technological solutions appear shortsighted at best.”
A perfect example of this is the deployment of Digital Rights Management (DRM) technology by the Industry, which limits the ways in which consumers can use a digital file by adding an “encryption [that] can prevent unauthorized access and copying” (Netanel, 2003: 9). However, its effectiveness as a way of stopping ‘piracy’ is very limited. Firstly, people could rip the same content off of DVDs “DRM-free… in seconds, and send it to all their friends” (Sheridan, 2007: Paragraph 10). Secondly, “skilled programmers can readily design software... to circumvent such measures” (Netanel, 2003: 9). Once a file has been successfully decrypted by one person, it can then be infinitely available to everyone else via P2P networks. Netanel concludes that: “no technological barrier can ultimately prevail over determined hackers” (2003: 9).
However, while the Industry’s efforts to suppress or contain the apparatus for file sharing have almost unanimously failed, often inadvertently and indirectly leading to more sophisticated technology, their legal efforts have continued ceaselessly since the days of Napster:
“The copyright industries have successfully shut down a number of P2P networks… and continue to bring lawsuits against others.”
(Netanel: 2003: 2)
Indeed, both the RIAA and MPAA have been involved in lawsuits against high profile websites and applications every year since 2001; the list of their defendants include many popular services such as KaZaA, Morpheus, Grokster, Limewire, eDonkey, Oink and Demonoid. Yet despite successfully shutting down these sites (or else forcing them to radically change their function), the Industry has been unsuccessful in stopping ‘piracy,’ and illegal file sharing has continued to grow rapidly. There are several reasons for this. Firstly, “file sharing has never been confined to a single exchange mechanism” (Huang, 2005: 38) so while the copyright Industries go after the high profile targets, there are always a network of alternative options ready to replace them in popularity. Secondly, lawsuits against file trading software can be long winded and complicated. For example, Grokster successfully defended a case against the MPAA and RIAA in 2003, only for appeals to steer the case to the U.S. Supreme Court where they reversed the decision in 2005 (Borland, 2005).
Another difficult issue with these lawsuits is the borderless nature of the Internet, the problem that copyrighted material may be hosted in jurisdictions with different copyright laws and the fact that “it is rare in cyberspace for users to be aware of the physical locations of materials” (Penfold, 2002: 87). The U.S. copyright industries’ ongoing case against web site The Pirate Bay is illustrative of this predicament as the site is hosted in Sweden where copyright laws are different and where it is “legal to offer a service that can be used in both a legal and illegal way” (Samuelson, cited BBC, 2009: Paragraph 8). Since 2003, The Pirate Bay has snubbed all copyright infringement takedown requests from the MPAA and individual movie studios and basked in the supposed sanctuary that Swedish law provides it from international impeachment. This has made them not only a high profile target of the media industry but also a flagship for the anti-copyright (or pro-piracy) movement. In 2006, the Swedish police raided The Pirate Bay, confiscating servers and holding its three owners for questioning. However, despite their efforts, the site was back online only three days later – testament to the problem of policymakers “thinking locally and acting globally” (Barlow, 2000: Paragraph 13). Immediately after the takedown, the site’s number of registered users shot up from 1 million to 2.7 million (Hussain, 2008), most likely due to the publicity generated by the raid. Today, despite the ongoing lawsuit, the figure is 3.5 million registered users and well over 10 million unregistered users, numbers that have “exceeded all other file sharing populations” (Mennecke, 2008: Paragraph 2). Once again, it shows how an attempted anti-piracy measure can backfire and become counterproductive.
The failure of the Industry’s attempts to stem file sharing by attacking the ‘hosts,’ however, led to one of the most significant changes in their anti-piracy policy. In 2003, the RIAA begun to take legal action against individuals, starting with 261 file sharers (Borland, 2003), and the MPAA closely followed suit in 2004 (Gross, 2004). This was an important change in policy because previous lawsuits were justified on the grounds of the defendants profiting from ‘piracy’ or “more egregious forms of copying, such as selling pirate DVDs” (Doctorow, 2008: Paragraph 19), but these were people who were downloading for their own non-commercial private consumption. Netanel therefore says of the practice:
“[It] might successfully drive many users off P2P file sharing networks [but] has significant public relations and marketing risks.”
(Netanel, 2003: 8)
Indeed, Netanel says that the RIAA’s first batch of lawsuits had a “significant public backlash” (2003: 8). The media were quick to highlight that one defendant was a 12-year-old girl whose mother had to settle two thousand dollars out of court (Mook, 2003). Other cases which caused controversy include a 66-year-old grandmother who was “slammed with a $300 million lawsuit… for allegedly downloading 2,000 rock and hip-hip tunes” (Mercuri, 2004: 27). She later turned out not to have the KaZaA application she was accused of using; and a deceased great-grandmother who didn’t even own a computer (Bangeman, 2005). These cases highlight the difficulties of accurately tracking down culprits of file sharing, and illuminate one of the reasons for the “image problem the Industry has faced in its handling of the piracy issue” (Sheridan, 2007: Paragraph 4).
The final factor to consider, then, when assessing the reasons why anti-piracy measures have failed is the changing attitudes of consumers; both in the way they perceive the Industry and in their moral response to the practice of file sharing. This factor is probably the most significant because file sharing is unquestionably the consumers’ choice – a moral choice, the MPAA would argue – and “most of these people are well informed and understand the implicit copyright infringement issue” (Huang, 2005: 38). If ignorance is not the reason people share files, then a more apathetic motive must exist.
Many commentators certainly believe that the tactics and attitudes of the copyright Industries, especially the music industry, have pushed or persuaded many consumers into dissent, and subsequently lessened their guilt about file sharing:
“Those who love to consume music by sharing are likely to justify their behavior with reference to the perceived egregiousness of record companies.”
(Huang, 2005: 40)
The source of this resentment and utter lack of sympathy, it is argued, comes as a response to the way the Industry treats ‘pirates’ – including the use of that word to brand them. Sheridan explains how “fans became enemies to the artists and companies they had supported for years” (2007: Paragraph 4). As we have seen, they sued people and services, sometimes with mistaken identities, instated troublesome DRM that alienated consumers including “the academic community, which has long enjoyed “fair use” exemptions” (Mercuri, 2004: 29), and over-saturated their audiences with marketing campaigns that claim “movie pirates are thieves, plain and simple” (MPAA, 2009a). Whether it is an advert that can not be skipped on a legitimately bought DVD or the strict warnings before a screening in the cinema, the message the Industry broadcasts is that “Piracy is Theft” (MPAA, 2009b). The application of this comparison however is often hotly debated by the Industry’s critics who believe that “piracy is a loaded word... [which] is a disservice to honest discussion” (Snyder & Snyder, 2003: 3). They argue that the definitions of ‘piracy’ and ‘theft’ are mutually exclusive: theft removes the original, whereas ‘piracy’ makes a copy. When the MPAA’s adverts compare downloading films to carjacking, mugging someone of their handbag and shoplifting DVDs (MPAA, 2004), it is not difficult to see why ordinary file sharers become disillusioned with the offered ‘reality,’ and decline cooperation with the Industry.
In general, as well, it could be argued that many people’s moral stances on file sharing have softened. As Netanel (2003: 18) says:
“Public opinion surveys indicate that most people think there is little, if anything, morally wrong with P2P file sharing.”
Huang agrees that “people do not see piracy as a serious ethical problem” (2005: 38), and Doctorow (2008: Paragraph 19) adds:
“Copyists either know that they infringe but don’t care, or they believe that the law can’t possibly criminalize what they’re doing.”
This perhaps shows more than any other factor why the Industry is fighting a losing battle when trying to stop ‘piracy.’ If technological and legal measures continue to fail, and the majority of a growing and increasingly computer literate community of Internet users perceive little or no ethical wrongdoing, then it is inevitable that file sharing will continue to grow. The Electronic Frontier Foundation (EFF) explains why the need for a serious rethink is moving inexorably closer:
“Sales are in serious decline, and digital downloads are not offsetting the losses... Despite the industry’s lawyers having target[ted] more than 30,000 college students, parents and...fans for lawsuits, file sharing is more popular than ever.”
Clearly then, there are going to have to be significant changes in the future if the Industry wants to maintain some level of control without further damaging their relationship with consumers. As the Industry’s entire arsenal of preventative, suppressive and retaliatory approaches have so far proven unsuccessful; perhaps it is time to look at completely new and initially foreign types of solution.
“Since we don’t have a solution to what is profoundly a new kind of challenge, and are apparently unable to delay the galloping digitalization of everything not obstinately physical, we are sailing into the future on a sinking ship.”
(Snyder & Snyder, 2003: 1)
As this paper has now presented the reasons why file sharing has grown over the past decade and why the Industry’s increasingly heavy-handed efforts to stop it have failed, it is important to look now at the future, and to discuss some of the changes that are needed to keep the Industry’s ‘ship’ afloat. This chapter will look through a contemporary lens at many traditional attitudes to gauge whether they have become outdated, and reevaluate the effects of the Industry’s past policies to establish whether any of their anti-piracy measures have been counter productive. Most importantly, though, it will look at the potential choices that the film business faces, and the solutions that have been proposed to remedy any impending financial predicament.
Before looking into the Industry’s revenue generating options for the future, however, it is first important to reassess the nature of copyright and its relevance in a contemporary media landscape. The changing habits of consumers that have accompanied technological development have altered the range of copyright from something that protects the artistic and financial rights of authors to something that can, and has been, used as weapon to punish file sharers. Increasingly, the Internet is drawing more and more users into copyright’s crossfire for behavior that was previously acceptable. Many academics therefore believe it needs to be drastically updated in order to integrate and harmonise with the new reality of file sharing. Sheridan (2007: Paragraph 16) describes the:
“Rigged, outdated, and unfair structure of current intellectual property law [as] in need of massive reform in the wake of the digital era.”
Snyder and Snyder agree that “the entire concept of intellectual property needs to be reexamined” (2003: 1). Doctorow explains how “every transaction on the Internet involve copies” (2008: Paragraph 8), a practice that outdated copyright laws technically criminalise, and yet which is involved in the most ordinary uses of a work on the Internet. Similarly, Lessig talks of the outdated laws stifling “amateur creativity” (2008: Paragraph 8) – writing fan fiction, remixing songs, creating fan videos, etc. - and suggests we should “craft copyright law to encourage a wide range of both professional and amateur creativity” (2008: Paragraph 23). One thing that Gary Fung, isoHunt’s owner, thinks will help this is reducing the length of copyright terms:
“A 100 plus years term like now is absurd; book authors have said "anything beyond ten years is intolerable." Because they want to ‘free’ their own books from the publisher after 10 years when it's of no significant commercial value anymore, and they'd benefit more from being freed, and more people reading them.”
(Appendix A: I)
This has become even more crucial recently for the movie industry as the Internet makes content available so quickly and completely that market saturation occurs faster. This could be potentially dangerous for the film industry because their current business model relies on a hierarchy of releases to maximise profit, i.e. the time prior to theatrical release where the cinematic experience is advertised, after the theatrical release where the DVD is advertised, and finally the DVD release (where it may be advertised for rental, also.) Therefore, Byers (et al., 2003: 4) argues that:
“Freshness is important, because demand tends to be highest for new movies and marketing efforts are greatest for recent releases.”
However, peer-to-peer technology can potentially bypass all of these stages instantly, especially if a movie ‘leaks,’ so it is plausible that file sharing represents a danger to the Industry’s current business model. The website isoHunt is a prime example of a service that makes movies wholly available, and its creator Gary Fung is currently being sued for copyright infringement alongside The Pirate Bay.
Fung’s second and final concept, then, is one that may sound initially surprising from someone who is being sued by the MPAA and RIAA for copyright infringement. His idea is for compulsory copyright registration, an initiative that would require copyright holders to submit their works for registration:
“Reason why registration is important is because no one knows the status of copyright authorization on files. Only solvable if there's a repository of registered works and database to query what is copyrighted and its owner does not wish online distribution. With that our lawsuits can go away.”
(Appendix A: II)
He elaborates after that this database could be used on file sharing sites to offer a voluntary donation option, an extension of Radiohead and Nine Inch Nails’ experimental “pay-what-you-want” (Sheridan, 2007: Paragraph 23) offerings in 2008. Fung concludes: “If it works for Radiohead, why shouldn't it work elsewhere?”
What these amendments encapsulate, however, is a drastic need for change, both in law and attitudes. Important modifications need to be made to ensure that copyright protection in the future is sensible and not completely impractical as it is in danger of becoming with the actuality of file sharing:
“[The] 3 billion downloads the previous month shows that the law is going to have to be changed, unless you take the position that downloaded music is stealing and thereby criminalize society.”
(Snyder & Snyder, 2003: 1)
Fung (2008: Paragraph 7) concurs:
“When the majority of society has no ethical conviction of wrongdoing when they violate copyright law, its not society that’s wrong, it’s the law.”
There are three reasons why these changes are needed. Firstly, “lawsuits against music fans have not put a penny into the pockets of artists” (EFF, 2008: 1) so they do nothing to protect culture. The second is because they highlight how ineffective lawsuits against individuals are doomed to be. As Sheridan says, “people who download music illegally now number in the hundreds of millions, and they can’t sue everyone” (2007: Paragraph 14). Fortunately, the RIAA seems to have realised this and has announced that it plans to end lawsuits against people who illegally download music. They “will pursue lawsuits that have already been filed, but have said they do not intend to file new suits” (NME, 2008: Paragraph 4). Perhaps, if the trend is similar to when they started suing people, the MPAA will shortly follow suit. The third reason is that outdated copyright laws seem draconian in relation to the increasing social acceptance of file sharing. Lessig describes the problem of having laws which criminalise ‘ordinary’ people, especially young people to whom file sharing is “the new cultural norm” (Sheridan, 2007: Paragraph 9):
“They see themselves as “criminals” [and] begin to get used to the idea. That recognition is corrosive. It is corrupting of the very idea of the rule of the law.”
(Lessig, 2008: Paragraph 20/21)
Thankfully, the RIAA is not the only organisation that shows hopeful signs of responding positively to the changing habits of consumers. Apple, one of the largest retailers of legal digital music files (and now film and television content), is removing the DRM on the majority of its iTunes library from the 1st of April 2009 (Diaz, 2009). Again, DRM is an anti-piracy measure that has been rendered futile by technology, and which causes resentment towards the Recording Industry as it limits how the consumer can use the file. Sheridan says that it “frustrates people and drives them to piracy” (2007: Paragraph 11). Huang (2005: 48) previously wrote of the music business that:
“Record labels don’t seem to realize that consumers are the ultimate profit generator of the business [and] that cultivating and maintaining a good relationship with the consumer is important.”
Hopefully, Apple removing its DRM restrictions and the RIAA discontinuing its lawsuits against file sharers are signs that the wider Industry’s attitudes are changing, and Huang’s statement is no longer correct.
While these changes are important in modernising the Industry’s reputation, they do not provide a solution for the challenge of file sharing taking the money out of transactions between consumers and culture. That means, concordantly, that they do not help with “compensating copyright owners for displaced revenues” (Netanel, 2003: 6), which is the film industry’s most urgent problem. Snyder and Snyder (2003: 3), however, believe that there is a straightforward solution:
“The simplest way to get customers to stop trading illicit digital copies of music and movies is to give those customers a legitimate alternative, at a fair price.”
The key concept that the movie industry must grasp for their alternative to be successful is that no matter what they come up with as a rival distribution method to file sharing, it must be competitive. In 2008, for example, several movie studios unveiled their collaborative video-streaming website Hulu, which delivers video content for free (Sweney, 2008) and is financed by advertising. In the same year, the music-streaming application Spotify was launched, which aims to compensate musicians in a similar way (Salmon, 2009). However, while these services are certainly important and admirable steps in the right direction – and will likely do much to appease amateur users and casual consumers – they are still inferior to alternatives in terms of quality, choice and convenience. In short, legal services will not represent a long term solution until they rival the completeness of P2P file sharing networks. However, if and when the Industry does create a preeminent distribution method, it would not only strangle the need for many of its illegal rivals, but also be in an unrivalled position to make money from digital content.
Certainly, the potential exists to make money through digital files and Huang argues that DVDs and CDs should be seen as “just a phase in the ever-evolving history of music consumption” (2005: 49). Despite it being more difficult to extract an economic return from file sharing, the profit margins for digital media are potentially far greater than with hard copy distribution. There is no physical product to make, ship and store, and by utilising P2P technology, the distribution costs (i.e. the price of bandwidth) rest with Internet Service Providers and the consumers. Weiss states that “retailers of digital media like Apple iTunes are enjoying fat profit margins distributing content through ISPs’ pipes” (2008: 40), and utilising peer-to-peer networks would be an extension of this.
Terry McBride, the CEO of Nettwerk Music Group, says “if you could monetize the peer-to-peer networks, everyone would make money” (cited Howe, 2006: Paragraph 27). McBride certainly recognises that the media industry is going to have to move away from old business models to survive in the future. He believes: “the future of the business isn’t selling records... it’s in selling music, in every form imaginable” (2006: Paragraph 10), a philosophy which is easily transferable to the film industry and their zealous reliance on DVDs as a source of revenue.
It is this quest for new and unexplored sources of revenue, then, that has led to several more extreme resolutions being suggested and utilised. The ideal aim of these ‘solutions’ is to strike a balance between making the film industry sustainable regardless of how much money the Internet subtracts from traditional distribution methods and preserving the freedom of having massive amounts of content freely available to consumers. These ideas take the form of taxes, levies and subscription style charges.
In 2003, Netanel (2003: 5) proposed a Noncommercial Use Levy (NUL), which would compensate artists through:
“Levies on equipment and media used to make personal copies [and] compulsory licences for distributors of copyright-protected material.”
He believes the NUL would provide “ample remuneration for authors” (2003: 6) and that “copyright industries, authors, providers of P2P-related services and products [would] all have reason to support it” (2003: 6). Since the time of his proposal, his idea has been utilised in Europe in an attempt by the copyrighted industries to “establish a guaranteed revenue stream in the face of dwindling sales which are blamed on piracy” (O’Hear, 2008: Paragraph 4):
“Currently 22 out of 27 European countries already enforce the so-called ‘iPod tax’, at greatly varying levels, on products ranging from digital music players, printers, mobile phones and even blank CDs...The charges are designed to compensate for the losses copyright owners may face from “private copying” of works.”
(O’Hear, 2008: Paragraph 2)
A similarly compromising approach to the problem is a proposed ‘Culture Tax.’ Jenner thinks there should be “a mandatory monthly tax in the European Union on broadband Internet and mobile phones of around €4 per month” (cited Anon., 2007: Paragraph 5). The idea, which is based on the UK’s television licensing scheme, could finance high quality legal services, and would free people to use digital content in whatever way they wanted, without the need for limiting DRM. While the idea is not without its potentially problematic components - how it “might be divied-out amongst artists... would prove an interesting exercise in logistics” (Anon., 2007: Paragraph 6) – it is nevertheless a viable option that preserves all of the benefits of file sharing technology.
The final ‘idea’ to be discussed is one that acts as part solution to the financial uncertainty of the Industry’s future, and part bridge to the 'good will' gap between the Industry and the consumers. In essence, it is both a change of attitudes and reallocation of resources that would see the Industry stop punishing consumers for ‘leaving,’ and instead try to win audiences back by improving the quality and value of their service. Following on from several years of box office records, it is clear to see that ‘piracy’ has not affected the popularity of the cinematic experience. It should, therefore, not be neglected as a source of revenue in the future. It should be noted that the status and esteem of high quality IMAX cinemas is increasing (Burke, 2009) and there is digital projection technology on the horizon which will yield “great benefits in terms of image clarity and quality, lower cost, greater security, and more flexibility in the cinema” (Swartz, 2004: 1). There are also attractive incentives like “the hugely successful Orange Wednesdays campaign in the UK” (Bibby, 2005: Paragraph 1) and a proposal to build a $200 million chain of luxury theatres, complete with valet parking, reclining armchairs and bar (Gruener, 2008). These modern initiatives, coupled with the continuing improvements in Home Entertainment (high definition televisions, surround sound systems and emerging Blu-Ray technology, for example), make it clear that the movie business is not short of pioneering ideas that will offer things in the future that ‘piracy’ can not.
Coming back to the question of whether the film industry will survive ‘piracy,’ though, the available options for generating revenue make the Industry’s predictions about the future seem unnecessarily bleak and pessimistic. Indeed, Bowman believes that it doesn’t matter what method the Industry offers up, or how radical it is, as long as they “come up with a toll gate somewhere... [so there is] enough revenue flowing back to the people who make films” (Appendix B: VIII). The only way that the film industry risks its own predictions coming true then, it would seem, is by not adapting to the changing habits of consumers, and by failing to offer an alternative that is worthy of replacing its illegitimate predecessors.
It is clear from the proposed solutions that some radical changes of attitudes are needed in the way that the Industry thinks about consumers, products and distribution. The Industry must acknowledge that audience needs and expectations are changing, and it is them who may have to adapt to fulfil the increasing demand for choice and quality. As anti-piracy propaganda has proved more-or-less completely ineffective, it shows that a lot of consumers are satisfied, or at least content, with the moral choice that file sharing represents. Indeed, if the Industry continues to label the practice as ‘wrong’ in the future, then they must be aware that they are not only criminalising a larger and larger percentage of their audience, but doing so in the face of a growing movement of reformists who want to update copyright law to reconcile “the reality of downloaded music with the idea of intellectual property” (Snyder & Snyder, 2003: 1). The Industry should also begin to re-evaluate the nature of the product they are selling. As the Internet gradually reduces the effectiveness of copyright law as a means of protection, it will concordantly become imperative for the Industry to control the distribution as a means of generating profit. As for distribution, the groundwork of a future resolution has already been laid.
As this dissertation has presented, there are a plethora of reasons why file sharing has increased, from improvements in technology and faster broadband, to consumer reactions, to the perceived egregiousness of the Industry, but the main one – and the reason most difficult to fight – is that peer-to-peer networks represent “the most complete and most efficient distribution model the world has ever known” (Sheridan, 2007: Paragraph 18). As Sheridan says, “it’s not about profit, and it’s not about maliciousness” (2007: Paragraph 19). He argues that the increase in file sharing has nothing to do with moral decline, or the widespread acceptance of ‘stealing’ as the copyrighted industries brand it. It is simply a response to the most effective way to share and consume culture. Importantly, then, the Industry must take into account that any anti-piracy measures that may prohibit this freedom could be perceived as greedy, out-of-touch and, most damaging to their apparent intentions, as an attempt at censorship. Indeed, even the MPAA’s website recognises (although does not apologise for) the fact that:
“Culturally, piracy has been tolerated due to the perception that it provides cultural access to normally excluded portions of society.”
When considering that the majority of file sharers are those with the least disposable income – namely young people and students – and that hard copy ‘piracy’ is most widespread in poorer countries (L.E.K., 2005: Slide 7), it highlights how showing some sensitivity could be beneficial to the Industry’s reputation when dealing with the issue of file sharing. It is also a reminder that a lot of the ‘damages’ that the Industry claims may not actually be lost revenue at all, and that the issue of file sharing may not yet be as serious as it is declared.
However, while some of the evidence may suggest that the Industry has not yet been negatively affected by file sharing, the certainty of its future growth, and indeed the difficulty of predicting future trends, renders any potentially complacent approach towards the issue risky. Certainly, if the Industry is to realign their perceptions of file sharing with those of the general population, it would be wise to have in place the policies, technology and infrastructure to compete in a rapidly changing and expanding media landscape. As we have seen, ‘piracy’ is not caused by a disregard for the sanctity of culture, but is a very human reaction to the conception of a distribution method that can bountifully feed our insatiable hunger for art, music and stories.
Certainly, the amount of media the average person consumes has increased. Small physical collections of records, tapes, CDs and DVDs are giving way to vast libraries of digital content. Sheridan describes the practice of rampant downloading, file sharing, collecting and discovery of free media as “the cultural norm to the iPod generation” (2007: Paragraph 10). Snyder and Snyder note that in this context, “obscurity is a far greater threat to authors and creative artists than piracy” (2003: 3). As well as the increase in media consumption, the combination of the Internet, file sharing and free ‘remixing’ software has led to an abundance of “amateur creativity” (Lessig, 2008: Paragraph 8), which again is expansive to the horizons of culture but which is technically illegal under the current scope of copyright. Lessig says: “it is time to recognize that we can’t kill this creativity, we can only criminalize it” (2008: Paragraph 22). With the demand for media at its highest ever level, however, it seems counterintuitive to reduce supply.
Indeed, it seems unpalatable and improbable that in such a gluttonous cultural environment there is no money to be made by the creators and distributors of the artefacts that entice consumers to the digital media feast. Advertisers and innovators need only find a way to capitalise on this demand, and there will pre-exist the foundations of a powerful marketing platform; and if anyone is to accommodate this potential, it should be a modern, informed and adaptable media industry that is willing to progress beyond its old business models. Snyder and Snyder believe that “in an era of rapidly evolving technology, businesses that adapt will survive, those who don’t, wont” (2003: 2). However, they note that this does not necessarily mean the death of culture, only the pruning of the out-of-date machinery used to distribute it. Importantly, Sheridan concludes: “the marketplace will shift and artists will survive” (2007: 14). Lessig’s suggestion is therefore that “we... reject the notion that Internet culture must oppose profit” (2008: Paragraph 8).
Before the Internet, the financial relationship between consumers and culture used to be simple, linear transactions of physical products. However, now that the ‘products’ are becoming increasingly intangible and replicable, it may soon be that the product is not what generates the money, but the distribution method. At present, although it may be beginning to shift, a lot of the distribution methods are in the hands of the file sharing movement (or ‘pirates’ as the Industry describes them.) It should therefore be the penultimate goal of the Industry to control these distribution methods and the inevitable financial return they could provide. As Chapter Two demonstrated, it is futile to attack the existing, illegitimate services. The Industry will not achieve market dominance by stifling the competition, as the Internet is “inherently resistant to censorship, both in operating philosophy and technical set up” (Hwa Ang & Nadarajan, 1996: 75), but by challenging them fairly. To alliterate one of the final points from Chapter Three, the Industry should not be ‘punishing’ defecting customers but trying to win them back.
And as we have also seen, this means they can make no half-hearted attempts. If the legitimate alternatives that the Industry offers fail in any respect to match their rivals’ completeness, convenience or flexibility, they will wholly undermine their own value. As Sheridan says, a “precedent... [has] already been set” (2007: Paragraph 10) and unless it is matched, a reason for ‘piracy’ will still exist. However, by the same token, if the Industry does create a distribution method that is as great or greater than the existing file sharing services, then it will render any and all unlawful alternatives equally worthless.
However, for this to happen, the Industry has to fully embrace the significant changes that may be needed in the future. Hencewise, the movie industry should welcome new technology for all of its great potential and trust that the unquenchable human thirst for art and stories will, almost involuntarily, ensure that their products survive and prosper. Indeed, “history has shown that advances in technology increase consumer spending” (Snyder & Snyder, 2003: 2). In the same way that the VCR was prophesised to be the Industry’s nemesis then increasingly became a large benefactor to its profits, they should be aware that the file sharing apparatus they are currently trying to stifle may one day be their own distribution method. Consequently, embracing this technology may be the key to future business models. More importantly, however, it would also be to the obvious and universal benefit of culture. If the Industry’s future priorities are in the best interests of the consumer then everyone’s ambitions will be united in the pursuit of a digital, cultural utopia. In addition, the sheer volume of users that would be attracted to such a complete and enticing library would ensure that ample revenue could be generated to sustain the service. As Bowman says, “It’s better to have a billion people paying a dollar than a few million people paying ten dollars” (Appendix B: IX). Furthermore, such noble ambitions could hope to heal the wounds of the past by winning back disgruntled fans and disillusioned consumers, perhaps even restoring the Industry’s misplaced reputation as creators of priceless treasures that delight, move, inform and entertain us.
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Appendix A – Interview with Gary Fung:
Paul Hawkins: First, I was going to ask you about the status of your court cases but I see you've recently updated about that. I assume you must be following the Pirate Bay's case quite closely, how important do you think the verdict will be to your case, and to the future of file sharing debate in general?
Gary Fung: Legally if they win then our cases maybe stronger, but Swedish laws are much different from US/Canada so how much effect isn't certain. If they lose I doubt it'll affect us much legally but it would be a blow to file sharing and internet freedom. Although I don't condone what TPB does in rejecting all notices from copyright owners either
Paul Hawkins: Yeah, I was going to ask whether you thought that might be the crucial difference between your cases, the relevance of the fact that you try to comply with copyright holders?
Gary Fung: Yes, crucial philosophical difference. I called TPB guys communists before =b. Believe it or not many copyright holders like us, except those suing of course.
Paul Hawkins: Yeah, sure. In my research, I've seen lots of cases of file sharing helping copyright holders.
Gary Fung: Anyway, I’d call TPB extremists that are perhaps necessary to balance the other extreme of MPAA and the likes.
Paul Hawkins: Do you think if you're successful in counter suing the CRIA that it will stop them and similar organisations from suing search engines like yours?
Gary Fung: We’ll make them think twice.
Paul Hawkins: Do you think the media industry have shot themselves in the foot by not embracing mass distribution technologies like bit torrent and instead choosing to fight them?
Gary Fung: Yes, and they know it: http://www.techcrunch.com/2009/03/08/big-music-will-surrender-but-not-until-at-least-2011/
Paul Hawkins: That’s interesting because essentially that’s what I want to get to in my dissertation - solutions for the future where culture can remain free and accessible but where the authors are still fairly compensated. That's also what I want your opinions on as you are so involved with the debate. In a post on isoHunt, you say that you aren’t against copyright, but that ‘copyright does need significant reform in the internet age.’ How do you think it needs to change?
Gary Fung: I can summarize it to 2 things: reduce copyright term, and remake a system of compulsory copyright registration. 100+ years terms like now is absurd, book authors have said "anything beyond 10 years is intolerable". Because they want to "free" their own books from the publisher after 10 yrs when it's of no significant commercial value anymore and they'd benefit more from being freed and more people reading them.
Compulsory copyright registration is requiring copyright holders to submit their works for registration. That used to be required when copyright law was started but was dropped when the government couldn't handle manual registration anymore but technology has changed and now we can automate registration and beyond books, music videos software can all be submitted for registration electronically. Reason why registration is important is because no one knows the status of copyright authorization on files. Only solvable if there's a repository of registered works and database to query what is copyrighted and its owner does not wish online distribution. With that our lawsuits can go away.
Paul Hawkins: Presumably though, a repository of registered works would not do anything to stop piracy, but do you think it could be used to distribute revenue to copyright holders if it was used in conjunction with some form of legal torrent site?
Paul Hawkins: *illegal files haring I should have said instead of piracy.
Gary Fung: It'll help both with efficient takedowns and a way to ask users to donate/pay associated copyright holder directly on file downloads.
Gary Fung: Richard Stallman says piracy is attacking ships and that's bad.
Paul Hawkins: Haha.
Gary Fung: I plan to write on that. Piracy is a term invented by the lobbyists and we shouldn't follow their propaganda terms.
Paul Hawkins: Do you think that optional donations to copyright holders could be potentially viable solution in the future? Sort of like what Radiohead started with 'In Rainbows', but on a wider scale?
Gary Fung: If it works for Radiohead, why shouldn't it work elsewhere? That is what I'm working towards.
Paul Hawkins: Have you read or heard anything about the ideas of a 'Noncommercial Use Levy' or the Voluntary Collective Licensing as proposed by the EFF?
Gary Fung: Piracy tax on ISPs?
Paul Hawkins: Sort of. The first idea basically compensates artists by taxing the distribution methods, e.g. potentially the P2P technology, makers of blank CDs/DVDs, ISPs, etc. - essentially any industries that might benefit financially from file sharing... The second (here: http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing) proposes the copyright industries set up 'collecting societies' to distribute money from consumers who would pay a kind of subscription fee to use legal file sharing tools. Both rely on some kind of tracking technology to ascertain the popularity of downloaded files and distribute the money accordingly. (Here's a link to this first paper too if you're interested. It's long but an interesting read. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=468180) But, yeah, do you think any option like that is a viable solution in a future marketplace where there is less money involved in the transactions between consumers and culture?
Gary Fung: Good in theory but we know how well it (didn't) work in Canada with the CD blanks levy. Government's role should be to provide sensible laws and a copyright registration scheme so any levy scheme is even possible. Then the free market should compensate copyright holders fairly or get sued (and with more grounds if the mechanisms to compensate is in place).
Paul Hawkins: Do you think that a free industry-run legal torrent site (or equivalent) would be economically viable if financed by advertising?
Gary Fung: If anyone would use it. They just need to be the one licensing.
Paul Hawkins: OK. Well, perhaps my two most important questions that I want your opinion on are, firstly: what do you think will be the future of file sharing and the media industry if they continue using the same anti-piracy tactics they use today? Do you believe there's any truth to the pessimistic predictions of the film industry when they say it will seriously damage or destroy them? And secondly, what do you think would be the future of the industry if they changed their attitudes and policies? If they stopped suing 'pirates', stopped going after distribution technologies and made their own efforts at free distribution?
Gary Fung: What damage..? http://techdirt.com/articles/20090301/1406403935.shtml and they already have: http://hulu.com/. The film industry is more clued than music, they sue because they want more control over distribution
Paul Hawkins: I have a chapter on the extent of piracy where I mention the same things: the record profits at the box office, etc, despite increased file sharing, but I think the film industry hasn't been hit as hard as the music industry sheerly because of file sizes and bandwidth limits, but obviously these are getting more user friendly. Do you think file sharing will ever reach the extent where it damages the industry, or do you think cinemas and gigs will always keep artists afloat?
Gary Fung: No: http://torrentfreak.com/mininova-one-million-torrents-strong-090209/. More videos in both quantity and definitely in bandwidth. Music is going downhill because they overcharged and most commercialized music is crap.
Paul Hawkins: OK, well I think I've got a good idea of your views now and a few good bits to quote. Do you mind if I tidy up your punctuation and stuff before I quote you? Other than that, I think I'm done so thank you very much for your time. It's really appreciated.
Gary Fung: Ya, tidy away. And the movies biz show record profits because they make good movies, I go to theatre all the time and haven't bought CDs in years.
Paul Hawkins: Yeah, I'm the same.
Gary Fung: http://isohunt.com/release/?cat=1, http://isohunt.com/release/?cat=2 - 18401 video vs 15493 audio releases on isohunt.
Paul Hawkins: Anyway, that's all my questions really so thanks again. Just out of interest, what made you start isoHunt?
Gary Fung: Learn new programming languages and do something that hasn't been done (search engine for P2P networks).
Paul Hawkins: That's cool, you must be pretty proud of it
Gary Fung: I am.
Appendix B – Interview with Phillip Bowman:
Paul Hawkins: How does the Australian compare to the British industry in terms of size. I was looking on the Screen Australia website the other day, which I was directed to by searching your name…
Phillip Bowman: Haha, yeah.
Paul Hawkins: How do you think it compares to the British film industry?
Phillip Bowman: Arguably it’s a bigger Industry given we’re a smaller country. But it’s probably not bigger in total. Basically, it really comes down to the number of films you release every year. I noticed yesterday they’re saying we’re releasing 35 films this year. Which is a lot of Australian movies.
Paul Hawkins: That must be rivaling the British production…
Phillip Bowman: I think the British have carved out quite an interesting niche for themselves in cinema and that is the do bonnet dramas, adaptations of Jane Eyre, etc – period dramas – they’ve got the Bond franchise, which kicks in a couple of hundred million every year which is good. You’ve always got the gangster films, like The Bank Job…
Paul Hawkins: And the Guy Ritchie stuff.
Phillip Bowman: Yeah. But The Bank Job did terribly well. It made a lot of money. And it was actually financed by an Australian company, or at least partly. But in answer to your question I suspect our industry is – if you were to measure in terms of population – I expect our industry is slightly bigger. But your television industry is way bigger than ours. Just by sheer population, you know.
Paul Hawkins: How would you say that the Australian film industry - with the credit crunch, and hard economic times we’re in right now – would you say that the Australian film industry is doing well financially? Is it growing still?
Phillip Bowman: It’s certainly a wait and see – I don’t think anyone knows where the world is going right now – I think things are particularly grim in England from what I’m hearing. We’re not – frankly, things aren’t that bad here. I think a few bankers have lost their jobs, but people aren’t too sad about that, and I think resources have been hit a bit because China stopped buying. Things are really grim in the UK. And how that affects us – well, it could be quite interesting. In fact, a lot of sales agents are based in Britain and ones here are going out of business, so that is going to impact on us definitely. But hitherto, the new regulations that have come in – using Screen Australia with the new financing arrangements, people feel reasonably optimistic about it, and they’re encouraging us to make higher budget films.
Paul Hawkins: Really? That’s interesting.
Phillip Bowman: Yeah. Indeed, the biggest problem we’ve had here, and still have to some extent, is the cult of the first timer. First timers invariably produce introspective, angst-ridden films about their childhood, or adolescent films at best. What you need is that feeding into a mature industry. I’m currently putting three films together. One has a director. Another one… we may have to use a Canadian director because that’s the deal. But the third one, but the third one which arguably owes something to Mrs. Doubtfire.
Paul Hawkins: I think I’ve heard about it.
Phillip Bowman: Yeah. It’s an absolute cracker of a script. Frankly, there’s no one here that can direct it. There’s one director called Fred Schepesi who did a film – a very excellent film called Roxanne, but that was like 20 years ago. He’s done films since, by the way. But really there is nobody here who is bankable. In fact, I’m thinking of approaching Frank Oz, you know the guy who directed Death at a Funeral.
Paul Hawkins: Yeah, I’ve seen it.
Phillip Bowman: And curiously, he did Dirty Rotten Scoundrels which is a very good picture but a long time ago. Death at a Funeral did very good business. They made it for eight million and it grossed forty. So that’s five times its budget so it made a handsome profit. It made a lot of money.
Paul Hawkins: That’s interesting because, as I was saying, my dissertation is about the relationship between file sharing and piracy and the film Industry, and whether it is suffering or in as much danger as the MPAA make out, and mainly, if it does become such a serious problem – where it is taking a lot of money out of the Industry through people copying films over the Internet – how the Industry will survive. That’s why I wanted to talk to you as someone who is in the film industry, especially a smaller film industry than the American one, about whether you believed file sharing is affecting the industry. But firstly, I’d quite like to know how you feel in general towards file sharing? What are your views on it?
Phillip Bowman: Well, ultimately, it can’t be good, can it? It’s a very interesting thing you’ve raised. One of my directors, who’s doing a feature for me… I was having a drink with him a couple of weeks ago and he told me about bit torrent. Basically, you’re connected to the world, aren’t you?
Paul Hawkins: Yeah.
Phillip Bowman: So what happens is… someone’s watching a film that you want to watch. So you know they’ve got it, so you log on... He’s got a computer that is continually on and he downloads the film – because the cost of downloading is still quite a lot, because of the size of the file – so what he does is downloads it off peak. It happens automatically. Now he’s a very sophisticated computer user and he has an absolute interest because he’s a director – he’s actually directing his first feature currently, well just about to – so therefore he wants to see as many films as he can. Frankly, I believe, while it’s that difficult, it’s not remotely a threat. And it’s that costly. For example, we’re using Skype now which costs us exactly nothing to make a trans-world phone call. Ten years ago – five years ago – we’d be paying real money for this phone call. And so that really impacts on the revenues of telephone companies. Having said that, telcos have developed other revenue streams. I don’t know how the Motion Picture Association of America will deal with that – I don’t know what other revenue streams you can have - you can have DVD, pay as you go, all that sort of stuff, but ultimately if its ends up being as easy as downloading a piece of software like Skype – you click and then it downloads a movie instantly – then it’s going to be a problem, I suppose. That’s if you want to watch films at home, but if you want to see them with the full cinema experience then you’ll always go to the cinema.
Paul Hawkins: I would argue that the technology is already almost there. Especially with young people – I’ve got a chapter on the extent of file sharing as it is today - and the age range of 16-24 year olds are very familiar with the technology, and I’m familiar with bit torrent in particular – and a large portion of my dissertation is about that – I would say it is so easy. I could probably type in any film that’s been released in the last 30-40 years and have it on my computer within; I don’t know, four to five hours – something like that.
Phillip Bowman: But it’s still costly though.
Paul Hawkins: Not so much. I mean, I don’t know about you... Broadband – bandwidth limits, etc. are getting so much higher, it doesn’t cost any extra. We pay a flat monthly fee for broadband, and can download almost as much as we want with that.
Phillip Bowman: Yes, but four or five hours – to tie your computer up for four or five hours – while you download a film – unless you’ve got a second computer...
Paul Hawkins: Yeah, there is that.
Phillip Bowman: I think it will only become of great interest when you can download it in like a minute. Or even half an hour, whatever. I don’t think people – when it takes four or five hours to download – I just think it’s too hard.
Paul Hawkins: You would argue now that it’s not convenient enough to be a threat?
Phillip Bowman: Yes. It’s always based on convenience. The human being is essentially a lazy creature. We like to come in, flick the TV on, put our feet up, glass of wine and sit back and enjoy. And pay-per-view on cable on stuff is OK – the range of films is quite limited, frankly, and they’re getting worse with the recession. I think they’re cutting costs there. I think the whole idea of four or five hours of downloading...
[Skype cuts out for several minutes.]
Phillip Bowman: See, even this technology is slightly flawed... But, I just think its quite a big thing to set up – and I know you can download the software easily, and that’s no big deal – but just the programming – you set it up before you go to bed and it’s there in the morning... but I mean, what do you download it on to, a hard drive?
Paul Hawkins: Yeah, you could download them on to your hard drive, or burn them onto a CD, and then – for example, here we have a DivX player, which is like a DVD player, except you can burn an ordinary video file, whatever it is, onto a blank CD which costs you 10p, then watch it like a DVD. I agree with you to an extent that’s not at the stage yet where it’s a threatening alternative to DVDs or the cinema – especially the cinema, because that’s obviously an experience – but I would argue that it’s quickly catching up.
Phillip Bowman: Oh definitely. I mean we’ve got a big screen plasma TV, and that’s hooked up through some speakers, and that’s pretty good. I went to see Slumdog Millionaire at the cinema recently and that was worth doing, but I’m pretty happy to watch them on the big screen at home, yeah.
Paul Hawkins: I think that one day, with how quickly the technology is evolving, we will be able to watch films almost instantly online.
Phillip Bowman: That’s right, and once that happens it’s going to be ‘click on, download, play.’ And that’s going to provide a whole new set of concerns. Frankly, I haven’t thought through it enough to give you a very clear answer other than, but it’s very much about ease of use.
Paul Hawkins: Yeah. Basically, a lot of what I’m trying to get at with this, the MPAA have this ‘sky is falling’ rhetoric of saying piracy will destroy the film industry, and be really corrosive towards profits and stuff, but it’s essentially the same attitude they took in the 80s towards the VCR. Jack Valenti, who was the President of the MPAA at the time said something along the lines of ‘the VCR is to the American film industry as the Boston strangler is to the woman home alone.’ And then within five and ten years...
Phillip Bowman: Yeah...
Paul Hawkins:...the VCR kicked off and became a major source of revenue for the film industry. And I’m almost wondering if they’re going to be the same kind of thing where the Industry has demonised file sharing as ‘pirates’ and kids stealing, but whether one day it will become the greatest distribution method that everyone uses?
Phillip Bowman: That may be the case, but how are you going to pay for it? If you can solve how to collect revenue, then you’re going to make yourself a lot of money. That’s the problem. I don’t think the MPAA would have a problem with the idea of people accessing movies in any way, as long as people were paying dollars for it ultimately. My partner here – who you spoke to briefly, and she used to run the Australian Film Commission by the way. She was the CEO, and she’s met Jack Valenti and all those people, and lived in LA, and has done all that... But, it’s all about control, isn’t it? Frankly, I think one of the biggest threats now to American – and again, I apologise for not having entirely thought this through – I’ve just had an e-mail from a new distributor in Australia, who really loves one of my latest scripts, and who is offering to distribute it, so it was very nice to receive that e-mail. But they’re a new, lean, mean distributor who are really looking towards digital distribution.
Paul Hawkins: Sure.
Phillip Bowman: And that’s going to be quite interesting, because no longer will people by flying around great big cans of 35mm film. They’ll be sending them over the ‘Net. In that sense, the whole infrastructure that American distributors have, which is cost prohibitive in many ways, will of course be dissembled. Now, that doesn’t mean they still won’t control distribution, because they will. Having said that, it will allow new entrants into the market. Where people may have a different sort of cinema chain. In the country, for example. They may have a series of country cinemas rather than the large multiplexes in the city. So that is an area that I think is quite interesting, and people are really looking at that. But as for the bit torrent delivery – and I can’t back this up with any case studies, or anything other than what I know as a user – two things essentially drive that: the ease of use and the word of mouth. For example, it was interesting that you didn’t have Skype. Once you’ve got it, now that will go into your brain and all of a sudden you’ll hear more people talking about Skype – because a lot of people have it. That’s what happened to me. I got it because one of my script editors living in Melbourne has it, so rather than speak on the phone all the time, we do Skype and it costs us nothing rather than something. And then you enter this world of ‘Skype people’ and now a lot of my business is done on Skype. So once something enters the mainstream, and enough people have it and know how to use it, then that becomes arguably a threat to the traditional business models, yeah.
Paul Hawkins: There’s a lot of academic work discussing the morals and ethics of file sharing, so that’s not something I want to go in to too much. But I personally don’t like some of the campaigns by the MPAA and others that compare piracy to theft, because I think they’re different. With theft, you are taking away the original, but with piracy you’re copying it, so the cost to the Industry is an opportunity cost rather than a direct cost, so I think comparing them is damaging to their own argument.
Phillip Bowman: But you’re still not paying anything to use it, and I think that’s the problem because ultimately if people aren’t receiving a fair rate for their goods then they wont be able to make those goods any more, and you don’t want that. That’s the worst possible outcome: no one’s making films any more because no body will pay to go and see them. So you’ve got to come up with a toll gate somewhere for people to pay. So what I would say is it’s great, as long as they find a way to collect. It’s better to have a billion people paying a dollar a few million people paying ten dollars. I guess that’s the way to look at it.
Paul Hawkins: Yeah. My final chapter is about possible solutions for the future. Almost assuming the worst – that file sharing will increase and improve so much that eventually there will be a situation where there is not as much money coming into the Industry as there should be. I wouldn’t mind running by you a few of the proposed solutions, and find out your opinions on them?
Phillip Bowman: OK.
Paul Hawkins: There’s one idea that’s of interest, which is the idea of a ‘culture tax’ which essentially would work a bit like the UK’s TV Licensing scheme – that most people pay this tax to a central organisation then it is distributed out to the creators. What do you think of something like that as a potential solution in the future?
Phillip Bowman: I think the whole idea of a culture tax just won’t get up. They’re already trying to move away from... they’re now saying because of satellite penetration, people don’t want to, or don’t need to, watch the BBC so why should they be paying for something they don’t want to watch? And that would be even greater with movies because a lot of people don’t go to the movies. Canvas it by all means, but I don’t think it’s a legitimate option.
Paul Hawkins: Another proposed solution, although it wouldn’t generate as much revenue I don’t think, is called the Noncommercial Use Levy. Basically, the idea is putting a levy on any kind of technology or service that benefits financially from file sharing, whether that is bit torrent sites, or the blank CDs, and that money is distributed out.
Phillip Bowman: Although with a hard drive, you might not need blank discs.
Paul Hawkins: I think, out of all the proposed solutions, that is the hardest one to see where the money would really come from.
Phillip Bowman: Yeah, I agree.
Paul Hawkins: The final big solution, really, is for the Industry to stop fighting file sharing software and make their own, and then try to recoup revenue by advertising. How viable do you think that would be as an option?
Phillip Bowman: There’s something there I think. You’ve only got to look at Google, and Facebook, and all that. In other words, instead of being some obscure piece of technology, it’s something you can buy or subscribe to, like Facebook, and so it legitimises file sharing. And also, if they nail the technology – so it’s ‘click on, get a movie.’ And maybe you pay a small price, or simply, advertising. That to me seems to be the way. I think that’s the best answer so far. Definitely no to the tax. And I think placing a levy on, you know, a USB stick... I mean, how do you do that? They’ll be some people buying them not to put movies on, so that’s not fair.
Paul Hawkins: How do you feel about the Industry practice of suing individuals for file sharing?
Phillip Bowman: I was aware of a case – Napster, wasn’t it?
Paul Hawkins: Napster was the first big case where the Industry sued a file sharing service for copyright infringement. Since then, they’ve had lawsuits every year against other large names and websites. At the moment, they’re involved in two big ones. One against The Pirate Bay – have you heard of them?
Phillip Bowman: No, I haven’t.
Paul Hawkins: It’s quite interesting because they’re one of the largest bit torrent sites around – and they’ve got millions of users – and it’s based in Sweden. For the last three or four years the Industry, the MPAA in particular, have been trying to shut it down but because Swedish copyright law is different to the USA’s, they haven’t succeeded. And the other one, which is called isoHunt – and I actually interviewed the owner of that recently and he’s being sued as well for a similar kind of charge. But since then, since they’ve sued all these different hosts and websites but every time they have succeeded a new or better alternative has risen out of the ashes to take its place. So the next step they took was, instead of suing the services, they started to sue the ordinary people who were file sharing. I was wondering how you feel about that practice of suing file sharers?
Phillip Bowman: I just go back to my point earlier. If you want to have films made, films cost real money to make. So the logical conclusion about the mass audience watching movies for free... well, the upshot of that is that no one will be making movies because they can’t afford to. Does that sound like me being too obvious?
Paul Hawkins: No, that’s definitely the attitude that the American Industry seems to take towards it. The problem that a lot of people have with it is that they don’t believe file sharing is as bad a crime as its punishment would suggest. You’ve got people being sued for thousands and thousands of dollars, and facing potential jail time if they refuse to pay, and huge court cases against people. A lot of people argue that their criminal intent is only that they want to watch films or listen to music or whatever, and the problem is just that they’re are doing it with the most efficient distribution method available to them.
Phillip Bowman: Sure, I can see every side of the debate. But arguably, if you want to watch movies, there have got to be movies to watch. If you want to participate in the value chain, and keep people working and making movies, then surely you understand that if you’re paying through advertising on the bit torrent site, that’s fine, but people like me still have kids to feed, and sons that need brand new surf boards! I mean, I’ve got to eat. All these bit torrenters round the world may think it’s all very neat and subversive and that’s great – I have no problem with that, I’m all for a bit of subversion – but at the end of the day, there’s got to be enough revenue flowing back to the people who make films. Or I guess you could go the other way and go ‘bugger that, we’ll just get governments to fund film industries all around the world’ and that becomes just another line item in their budgets. It’s always got to go back to that. But does the punishment fit the crime? Clearly, I’d hate to see any one go to jail for something as minor as that. I just think the solution for the MPAA is put a whole lot of geeks on the case, come up with the absolute best-ever solution for a way to download a movie in thirty seconds. Whoever comes up with it first, and the technology is absolutely dynamite, like Google is – Google is the household name for search even though there are other engines, and that name has passed into popular vernacular – if the MPAA, or whoever, comes up with the world’s best technology that really can’t be beaten, and they’ve copyrighted that technology, and it gets such a head of steam up then it will be like Google. That’s the best solution. I think you should close your thesis with ‘technology will provide the answer.’
Paul Hawkins: That is very close to what I plan to say in my conclusion.
Phillip Bowman: There you go. I’ve never even thought about it before now but that’s what my head is telling me.
Paul Hawkins: That’s what I’m arguing. They’ve been fighting this technology for the last ten years and it hasn’t stopped it. More people are file sharing now than ten years ago when they started suing people. So, I’m trying to argue that everything they’ve tried to do to stop it so far has failed, and the only legitimate option now it is to compete with it, and, as you say, make a service that’s as good or better.
Phillip Bowman: Yeah, embrace it, and make it work for them. That’s what I’d be doing. That’s my conclusion.
Paul Hawkins: Haha, that’s great. Thanks a lot.
Phillip Bowman: As long as you know that when it comes to this, I really am Joe Public. I’m not Joe Public in the sense that I make films...
Paul Hawkins: But I think that makes you the perfect person to ask, because you are someone who, as a producer... it’s about people downloading the work that you’ve done for free. And, as I say, I interviewed the owner of a site that can be used for copyright infringement. So between you, you represent both ends of the spectrum as you are someone, although as you say not now, could potentially stand to lose out through free file sharing in the future.
Phillip Bowman: That’s right. But technology ultimately sorts out most things, and that’s the conclusion I would draw. It will be win-win.
 The international umbrella organisation of which the MPAA is a part along with MPA Canada, MPA EMA (Europe, Middle-East and Africa) and MPA Asia and Pacific.
 The trial hearings ended on 3rd of March 2009. The verdict will be read on the 11th of April 2009.