UK: Tie Me Up, Tie Me Down - Litigation and the film industry

The film industry has a chequered experience of litigation. It took just three weeks to track down the man who stole The Hulk in the US. However, a four-year Nordic saga continues as the Norwegian Economic Crime Unit attempts to bring a teenage code-breaker to justice.

Most film companies have been paying closer attention to the few authorised copies of films before a theatrical release. Recently, Universal Pictures noticed a copy of its summer blockbuster, The Hulk, had gone astray and alerted the authorities.

As a ‘digital tag’ had been inserted into the movie, US authorities were able to trace the digital thief and begin prosecution just three weeks after the theft.

In a trail-blazing victory against piracy, Kerry Gonzalez, a resident of New Jersey in the US, pleaded guilty to making and distributing an illegal copy of the film in June 2003. He faces three years in prison and a fine of up to $250,000.

The film industry has not always found litigation so effective, however. It can often be time consuming and frustrating. For example, after a request from the Motion Picture Association of America (MPAA), the Norwegian Economic Crime Unit charged a teenager with unscrambling DVDs (making perfect digital copies possible) in 1999. Although the teen was acquitted, the Norwegian prosecutors convinced an appeals court to re-hear the case; a decision is not expected until the end of 2003.

Barriers to a successful outcome for media companies employing litigation include:

Online piracy is by nature international and this makes it difficult to prosecute across borders. Many countries have weak intellectual property laws and even weaker enforcement. In addition, there are difficulties associated with actually taking out a case due to international barriers.

It is often difficult to pinpoint who is responsible for pirated material because the software used for decoding and copying intellectual property is widely circulated on the internet. However, if illegal content is stored on servers, these can be located with cooperation from ISPs. In the P2P file-sharing model however, illegal content is shared between local hard drives, making it much harder to pinpoint. Napster was easy to attack because it had a site on the internet and a centralised database of songs, which was an inventory of stolen IP.

It is difficult to enforce rulings. When the Federal Court of New York decided that the DeCSS utility "threatens ultimately to injure or destroy plaintiffs’ ability to distribute their copyrighted products", wired.com called it a "victory" for the studios. The value of the ruling however, is largely symbolic. DeCSS is still available on hundreds of sources on the internet and has already been downloaded by millions. Software solutions have also been used to combat piracy. This is a necessary investment and one that should be continued, but it will only ever keep the industry one step ahead of digital thieves. Software solutions to fight film piracy:

The Content scramble system (CSS) was created to prevent the copying of DVDs and granted legal 'trade secret' protection. Yet the code for its algorithms and master keys (the main elements of its security) was stolen and posted on the internet, along with a utility called ‘DeCSS’ that enabled perfect digital copies of CSS-protected movies to be made. As a result, CSS was rendered useless overnight.

Encryption technology is a tactical solution and it may be only as effective as the next hacker. While it may deter the average consumer, professional pirates have the resources and the determination to circumvent all efforts. Some feel that copy control technologies only serve to alienate consumers who wish to store legal digital content.

Watermarking is a technology that has been around for decades. Although it is not effective in preventing copying, it can be used to create digital signatures, which would allow owners to trace pirated copies to the original source. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.