File Swapping and the Analog Hole

forehead writes "Lawmeme is running an interesting piece on piracy in the digital age. It covers a number of the logical fallacies often cited by the major media companies and certain lawmakers."

Comments

First copyright infringment

[Anonymous Coward]

Ernest Miller on Monday, May 13 @ 10:28:40 EDT

Newsbytes reports that bootleg versions of the wildly successful Spider-Man movie [Damn good in my opinion - Ed.] are already being distributed via the Internet ('Spidey' Already Being Swapped By Online Pirates). While Spider-Man was only available a day before it hit the big screens, the LA Times (reg. req.) reports that Star Wars Episode II: Attack of the Clones has been bootlegged a week before its actual release (Latest Plot Twist for 'Star Wars': Attack of the Cloners). This is not surprising. At a minimum, within a day or two of any movie being released, bootleg videos based on camcorder recordings of showings are available on certain streets in New York City. Within a week, pirated VideoCDs pressed in Asia are available in the US. Even Seinfeld did a show with a plot thread about this bootlegging process, The Little Kicks. Should anyone be surprised that these bootlegs will subsequently be made available via the Internet? Is there any real significance to the fact that these bootlegs are being made available via the Internet?
Yes and no.

For Hollywood, the significance of this piracy is (they claim) that it can be used to justify laws such as the DMCA and CBDTPA. After all, the piracy is taking place via the Internet, thus it must be digital and we all know how dangerous digital piracy is (perfect copies ad infinitum). As the LA Times puts it:

The pirating of "Attack of the Clones" lends fuel to the film industry's efforts in Washington to crack down on piracy. While the studios' trade association steps up its enforcement activities, their lobbyists are pushing for laws that would require computers and consumer electronics to be modified to deter unauthorized copying.
Of course, this is a non-sequitur.
For reasonable people, the significance of this piracy is that it undermines justification for laws such as the DMCA and CBDTPA.

The Analog Fallacy

One of the most prominent and recurrent arguments of the copyright interests is that "digital piracy" is far worse than "analog piracy" and thus justifies the imposition of draconian paracopyright laws, such as the DMCA and CBDTPA. I refer to this argument as the "analog fallacy." The fallacy is that analog piracy is not nearly as threatening as digital piracy because analog copies degrade with every generation while digital copies remain pristine no matter how many copies are made. While true in a strict sense, the fallacy is that most of the assumptions necessary for this argument to be true are not realistic. For example, one prominent proponent of this argument is Sen. Fritz Hollings (D-Disney), who made this statement when introducing the CBDTPA:

The reality is that a lack of security has enabled significant copyright piracy which drains America's content industries to the tune of billions of dollars every year. For example, the movie studios estimate that they lose over $3 billion annually by way of analog piracy. In order to pirate copyrighted movies via analog formats, an individual makes an illegal copy of the movie (sometimes by taping it in a movie theater with a personal video recorder) and then distributes it, in analog form, at discount. However, because subsequent copies of analog movies degrade over time, there is a limit to the success of this type of piracy.
In a digital age, however, the piracy threat is exponentially magnified. So on the Internet, copyrighted content -- be it a movie, a book, music, or software -- travels in a digital language of 1s and 0s, and every copy of that content, from the 1st to the 1000th is as pristine as the original. Also, unlike an analog pirated movie, which must be physically packaged and transported, a digital copy can be sent around the world on the Internet with a single click of a mouse. The copyright industries are justifiably worried about distributing their content on the Internet absent strong copyright protection measures. As Internet access becomes increasingly available over high-speed, broadband connections, these worries will only heighten.
In the first paragraph of the above quote, when Sen. Hollings refers to the $3 billion figure as "analog piracy," he is being either ignorant or deliberately misleading. I choose to believe that he is being deliberately misleading. The $3 billion figure from the MPAA is not "analog piracy" -- it is all piracy that takes place without the Internet. Now, certainly, all piracy that takes place over the Internet is digital, but that does not mean that piracy that takes place without the Internet is analog. If someone is selling pirated CDs, those CDs are just as digital as the MP3s downloaded off the Internet. The same goes for the bootleg DVDs that were part of the first DVD burner arrests, according to this MPAA press release (First Ever DVD Burner Lab Raided in New York). Note this press release, I will be referring back to it. Slashdot readers noted the raid at the time as well (MPAA Finds First Actual DVD Copiers in U.S.).

As far as I can tell, the MPAA does not publically break out its piracy statistics as either "analog" or "digital." However, they do break out domestic and international piracy. Apparently, domestic (U.S.) piracy costs, according to Hollywood's own figures, $250 million per year (Film Studios Settle Civil Action Against Internet Pirate). Even assuming that the CBDTPA would entirely eliminate this form of piracy (yeah, right), is it likely a cost-benefit analysis would favor the law? $250 million seems a relatively small figure to me.