A Year In Prison For a 20-Second Film Clip?

PizzaFace writes "It's Jhannet's 19th birthday, so her boyfriend borrows a camcorder to memorialize the occasion, and they head to the mall. They goof around, recording each other in the food court, then decide to catch the Transformers matinee, which started a few minutes earlier. During a big action scene, Jhannet takes the camcorder and records a 20-second clip to show her little brother. A few minutes later, cops who were called by the manager come in with flashlights, arrest Jhannet, confiscate the camcorder, and, at the behest of Regal Cinemas, charge her with film piracy. 'I was terrified,' said Jhannet. 'I was crying. I've never been in trouble before.' If convicted, she could be sentenced to a year in prison and a $2,500 fine. The police say they lack discretion because Regal Cinemas chose to prosecute: 'They were the victim in this case, and they felt strongly enough about it.' The National Association of Theater Owners supports Regal's 'zero-tolerance' prosecution standard: 'We cannot educate theater managers to be judges and juries in what is acceptable. Theater managers cannot distinguish between good and bad stealing.'"

Comments

Re:Devil's advocate

[shogarth]

If you come in with a Treo, no one is going to say anything.

Not necessarily true. We had tickets to some random movie preview 10 months ago. As always, I had my phone with me as required for work (if the servers go down...). The goon at the door saw that my phone had camera capability and denied me entrance. After an extended, polite, kafkaesque conversation, my wife watched the movie while I drank coffee and read a book next door.

Re:Devil's advocate

[cpt kangarooski]

No.

The 'time-shifting case' is Sony v. Universal. Let's see what the Court actually said there (emphasis mine):

Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at 154-155. Moreover, the definition of exclusive rights in 106 of the present Act is prefaced by the words "subject to sections 107 through 118." Those sections describe a variety of uses of copyrighted material that "are not infringements of copyright" "notwithstanding the provisions of section 106." The most pertinent in this case is 107, the legislative endorsement of the doctrine of "fair use." That section identifies various factors that enable a court to apply an "equitable rule of reason" analysis to particular claims of infringement. Although not conclusive, the first factor requires that "the commercial or nonprofit character of an activity" be weighed in any fair use decision. If the Betamax were used to make copies for a commercial or profit-making purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District Court's findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity. Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U. S. C. 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, see 107(3), does not have its ordinary effect of militating against a finding of fair use. This is not, however, the end of the inquiry because Congress has also directed us to consider "the effect of the use upon the potential market for or value of the copyrighted work." 107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit. Although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.

In this case, respondents failed to carry their burden with regard to home time-shifting. The District Court described respondents' evidence as follows:

"Plaintiffs' experts admitted at several points in the trial that the time-shifting without librarying would result in 'not a great deal of harm.' Plaintiffs' greatest concern about time-shifting is with 'a point of important philosophy that transcends even commercial judgment.' They fear that with any Betamax usage, 'invisible boundaries' are passed: 'the copyright owner has lost control over his program.'" 480 F.Supp., at 467.

Later in its

Re:Devil's advocate

[Nukenbar]

Isn't that for a judge and jury to decide?

Not really.

Many different people have to decide this. That is how most crimes get prosecuted. Usually, but not all of the time, someone has to complain. If the theater had not complained, the kid would certainly not have been arrested.

Second, the police have to care enough to arrest you. The police have a lot of discretion as to whom they have to arrest. Most people on slashdot think this is a bad thing, but they need this discretion to do their job. Now perhaps in this case, the policeman was ordered to make the arrest, but in many other cases he might not have to. Say, a kid stealing a candy bar from a deli, or a fight in a bar were no one really gets hurt.

Next you have to get the prosecutor to take the case. Many cases where there are lawful arrests get dropped because the case has no merit. You might be legally arrested for spitting on the sidewalk in front of a cop, but that doesn't mean the prosecutor HAS to follow though with the case.

An finally we get to the Judge. There is a reason that there are ranges of sentences. That allows a judge to fairly weigh a punishment with a crime. maybe a year would be fair for a hardcore pirate that is working in a theater. this kid would never see a day in jail.

Re:Devil's advocate

[MoneyT]

Welcome to the world of lawsuit fearful companies. It's not that they can't train their managers to use discretion, it's that they can get into serious trouble for it. What happens when there's two people, a black man and a mexican recording. The usher comes down the aisles and since he's only one person, he can only address one person at a time without disturbing others. So he hits up the mexican first, confiscates the camera and puts it in the managers office for pickup after the film. Then he moves on to the black man. This time however, the man refuses to give up his camera, the manager is called in to eject the man from the theater. Say hello to discrimination lawsuit. It doesn't matter if the claim is baseless or not, it will go to court (or be settled out of court), and the company will spend money on it. It's much easier, cheaper and safer to just have a blanket policy of arresting and pressing charges against everyone. Until such a time as people stop using baseless lawsuits to get their way, zero tolerance policies will rule the day because they are the safest policies to enforce. That's not to say they're good policies, just the simplest and least hassle.

Re:Devil's advocate

[techiemikey]

actually, last time i went to a movie, i do not remember any warning against bringing in recording devices. I will have to double check to see if there is a sign or if it's on the back of a ticket stub or anything, but "plenty of warning" should be more than something in fine print on the back of a ticket stub.

Re:Devil's advocate

[Retric]

"(a) Offense.--Any person who, without the authorization of the
copyright owner, knowingly uses or attempts to use an audiovisual
recording device to transmit or make a copy of a motion picture or other
audiovisual work protected under title 17, or any part thereof, from a
performance of such work in a motion picture exhibition facility,"

Note: A 20 second clip may or may not be protected under title 17.

IMO this is what is over the top:

(d) Immunity for Theaters.--With reasonable cause, the owner or
lessee of a motion picture exhibition facility where a motion picture or
other audiovisual work is being exhibited, the authorized agent or
employee of such owner or lessee, the licensor of the motion picture or
other audiovisual work being exhibited, or the agent or employee of such
licensor--
                        ``(1) may detain, in a reasonable manner and for a
                reasonable time, any person suspected of a violation of this
                section with respect to that motion picture or audiovisual work
                for the purpose of questioning or summoning a law enforcement
                officer; and
                        ``(2) shall not be held liable in any civil or criminal
                action arising out of a detention under paragraph (1).

Re:Devil's advocate

[Renraku]

Fine paid: $2,500.
Year servced: One year.

Money gained for copyright holder/theater: Negative amounts.
Money gained for prison system: Negative amounts.

Total outcome: Hassle for everyone and shitload of money lost all around.

Re:Why not tell them you put it in your car?

[Surt]

Here's a few. There are lots of studies on this, it's very well established science.

http://links.jstor.org/sici?sici=1047-7039(199308) 4%3A3%3C478%3ALDASAM%3E2.0.CO%3B2-M
http://www.springerlink.com/content/r3n42410657816 43/
http://www.thomsoncustom.com/cj/cases/MOD018.pdf
http://www.leaonline.com/doi/abs/10.1207/s15327825 mcs0701_7?cookieSet=1&journalCode=mcs