Confronting Digital Technology: The Motion Picture Industry's Battle with Online Piracy (1)

Article excerpt

I. INTRODUCTION

This paper assesses the threats posed to the film industry as a consequence of evolving digital technology in the wake of case law that has shielded peer-to-peer networks from copyright infringement liability for facilitating online music downloads. (2) It surveys the law applicable to actions for online infringement of motion picture copyrights and analyzes how such cases may be resolved in accordance with relevant acts and case law precedents. This analysis will lead to the conclusion that the motion picture industry is likely to suffer the same harm and losses as the music industry due to the current state of the law.

Part I discusses the pertinent provisions of Chapter One of the Copyright Act, (3) including a consideration of two exclusive rights of copyright owners, the manner in which those rights are violated by online piracy, and what forms of digital online piracy may in fact be considered fair uses of copyrighted materials.

Part II addresses the doctrines of secondary copyright liability and considers the manner in which courts have applied those doctrines in cases relating to peer-to-peer network liability for facilitating copyright infringement on the Internet. This portion of the paper also includes a consideration of whether courts have misapplied these doctrines of secondary liability.

Part III considers the specific nature of online piracy problem, including a discussion of a recent study conducted by the Motion Picture Association of America (hereinafter, "MPAA") and related academic and industry commentaries. Part IV is an evaluation of what the motion picture industry is currently doing to protect itself in the process of adapting to the digital age, and how the industry is trying to save itself from a seemingly inevitable demise.

VIOLATED? EXCLUSIVE RIGHTS AND FAIR USE IN THE CONTEXT OF ONLINE FILE-SHARING

Introduction: Chapter One of the 1976 U.S. Copyright Act

The 1976 Copyright Act provides that "[C]opyright protection Subsists ... in original works of authorship fixed in a tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or through the aid of machine or device." (4) Among the listed works of authorship covered by this provision are "motion pictures and other audiovisual works." (5)

The Act confers several exclusive rights on the owner of the copyrighted work, (6) including rights of reproduction (7) and distribution. (8) Online peer-to-peer file swapping networks facilitate violations of both of these rights. By uploading a copyrighted work onto its computer, a file-sharer creates a virtually identical copy (9) of the work on its computer, and then passing it on to an infinite number of downloaders who copy the work onto their own computers.

EXCLUSIVE RIGHTS: REPRODUCTION AND DISTRIBUTION

"[C]opyright infringement is a victimless crime." (10) Such is the sentiment of the growing population of copyright pirates. (11) Copyright infringement does have victims, many in fact. Especially in the context of the motion picture industry where it often takes hundreds of people to make a single feature length film. (12) All of them are hurt by unauthorized reproduction and distribution of motion pictures. (13)

During the Clinton Administration, the Information Infrastructure Task Force's Working Group on Intellectual Property issued its final report, (14) which recognizes that digital technology is "having an enormous impact on the creation, reproduction, and dissemination of copyrighted works." (15) Despite concerns that copyright legislation afforded insufficient protection to copyrighted works in a digital world, the Digital Millennium Copyright Act (hereinafter, "DMCA") in 1998 made no amendments to section 106 of the Act. (16)

Section 106(3) extends an exclusive right of distribution to owners or authors of copyrighted works. …