Analysis Another great hullabaloo has been going on this week over the fact that the Motion Picture Association of America (MPAA) plans to start the same kind of debilitating legal actions against illegal file sharing of movies, that the recording industry has been filing for the past year.
Online music file sharing is measured in billions of files downloaded, but the MPAA says that under 150,000 movie titles are traded each day in the US on file sharing services.
MPAA member studios now plan to file 230 legal actions in their first wave of lawsuits early next week seeking damages up to $150,000 for each movie placed online.
Faultline thought it might well be worth making a few notes about just how different the circumstances are for these legal actions and their likely outcome, compared to the rampant piracy affecting the music industry.
The first thing to remind everyone of is that when record labels were first hit by the sharing of files on peer to peer networks, those networks had not been legally challenged and for the most part were not understood. That was over four years ago and now people are beginning to come to terms with the existence of P2P networks, and how to go about stopping distribution of content over them and know what is and what is not allowed in the way of legal challenges.
Record labels are also coming close to an accommodation with the super distribution business models that P2P has been pushing for all that time, and, perhaps out of desperation, are talking about offering legal P2P delivery.
This might be with hybrid services, where low quality or incomplete tracks are free, and the full version is paid for, something that was suggested three years ago, but which has taken years to be tried, due to prejudice and only then because of the failure of the legal system to close down P2P networks.
Also, for the most part, film has always had encryption protection and it is possible to protect film throughout its conventional distribution process and the early part of its earning lifecycle.
It's true that motion pictures have emerged on P2P networks "before" they have made it into the cinema, and that once a single copy is out there, it gets copied many times over and within days becomes easily available. But this is because there has been insufficient protection during the editing and promotional phase of a film's life and that can be fixed.
There have been successful attempts at stopping this from happening, and gradually "best practice" in basic DRM and watermarking means that it gets harder to steal a digital copy and if it is stolen early on in a film's economic life, it is easier to trace who leaked it.
Films are mostly distributed in non-digital, tape format to cinemas and this is likely to be true for some time, despite the advent of digital cinema. There are few, except the most well organized pirates that can take a tape copy and produce a digital work, but none at all that we know of that can take out the watermarking that would identify which copy was stolen in the first place.
It would be naive to suggest that it is difficult to break the DSS (DVD Scrambling System) that has been used universally to encrypt DVDs, if only because the DeCSS code can still today be downloaded from web sites which are situated in countries that have not yet currently enacted the World Copyright Treaty.
That treaty is the agreement by which 179 countries have said they will enact a piece of legislation based on the US Digital Millenium Copyright Act, including the elements that make it illegal to break encryption or copy protection, even if no breach of copyright is intended.
This is a controversial component of the agreement, but it has been enacted in half of Europe and will be law in most countries within two more years. It gets harder to post code that explains how to breach encryption keys, and with that, the leaks will fall to fewer and fewer individuals that are committed to piracy. That means that the net will tighten initially on individual countries, then later on individuals, and there is the potential to strangle film piracy over the next few years.
In music, fear that CDs will not play in cars and on other mobile CD players, has meant that many of the record companies have eschewed copy protection and that has meant that copying a CD is as easy as point and click, with no law being broken until the files are posted on the internet.