New movies come out all the time, but you’re just a college kid without the money to go to the cinema five times a week. On the other hand, you do have plenty of free time and a student discount on that MacBook, so BitTorrent makes a lot of sense. I get it. Unfortunately, the movie industry has all the legal reasons to stop you… Or so they think.
As an aside, here’s why movie people get so worked up over piracy. Like I’ve said before, most movies lose money. If a movie makes $100mm at the box office, 40% goes directly to the theater. Of the remaining $60mm, the studio only gets a distribution fee of usually 30%, which would be $18mm. Even advertising could cost $18mm, so that $100mm box office still creates a loss for the studio. When it comes to home video, however, studios get 80% of sales, and it even costs less to burn DVDs than to develop miles of negatives. That is, a movie only gets made in the first place if customers will pay for DVDs.
In other words, these aren’t robber barons twirling their mustaches as they prosecute kids. These are stressed-out executives trying to stave off bankruptcy, and they depend on you buying DVDs, or at least theater tickets, to do so. Since copyright law exists to protect guys like them, they just ask that those laws be enforced.
Still I think they’re wrong – there may be plenty of legal reasons to protect file sharing. Strangely enough, understanding how begins with the Second Amendment.
Last year, the Supreme Court heard District of Columbia v. Heller, its first Second Amendment case in nearly 70 years. To determine the Constitutionality of DC’s small guns ban, the Court had to decide whether “arms” means the definitive guns that existed when the Bill of Rights was drafted (e.g., muskets and hunting rifles) or the technology of arms, which now includes automatic weapons. The Court ruled that “arms” is a technology, and the Second Amendment protects the entire technology regardless if criminals use them illegally.
The US Constitution specifically mentions only one other technology: the Press. The press is technology that disseminates information. Throughout our history, we have outlawed seditious writings or writings that infringe copyrights, but a technology that in and of itself merely disseminated information was never outlawed until Napster. By an argument of parity (and this theory has never been tested in court), the Constitution protects any technology that serves the purpose of disseminating information, and only individual users who abuse that technology (e.g., by infringing copyrights) can be prosecuted.* Since there are millions of users infringing copyrights, stopping everyone would be cost-prohibitive. If charged with that Sisyphean task, the studios have more or less admitted that they wouldn’t bother.
Of course, copyright law is also as old as the Constitution (Article I, Section 8: “The Congress shall have the power…to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”). But the Copyright Clause is premised on society’s general benefit, and the internet has radically transformed our society, mostly for the better. Accordingly, many argue exceptions should be made for digital copyright.
This is the traditional pro-sharing rationale, argued in the pages of Wired and The Wall Street Journal alike. Nevertheless, it has never prevailed on its own. But if this principle were supplemental to a First Amendment argument, then the legal balance might well tip away from the studios.
While we wait for the tipping point, just please obey the law for now…
*For more thorough scholarship on this argument see, Edward Lee. 2008. "Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies" Available at: http://works.bepress.com/edward_lee/1