Term ‘Piracy’ Should
Be Put Out To Sea
Fighting Movie Theft
With Formidable Partners
by G. Kendrick Macdowell
NATO General Counsel &
Director of Government Affairs
I am plainly immersed in a fascinating industry,
and I am grateful to all of my colleagues at NATO, our
regional
associations, our wonderful member theatres, the Motion
Picture Association of America, and our studio partners
for making my first months so rewarding and educational.
It is not at all troubling to me that the learning curve
is a lifetime. Bring it on.
I could pluck one of dozens of different
issues to discuss in my opening column, such is the range
of stimulations
in my new job. (Make no mistake. I intend to cling to the “new
job,” “sorry just got here” line for
at least a year.) I choose to focus on movie theft (a.k.a. “piracy,” about
which more in a moment) because it illustrates profoundly
for me, at this early formative stage, the power of partnering
in our larger family, the family that encompasses production
and distribution as well as exhibition. As NATO has expanded
its commitment to combating movie theft, so have we enjoyed
some inspiring synergies in working with our friends at
the MPAA, and I want to acknowledge and thank some of them
herein.
But first, why “movie theft” instead of “piracy”?
Well, what’s our values message about “pirates” in
Pittsburgh? And are we sending a conflicted signal in Tampa
Bay, where the “buccaneers” variant is hardly
likely to excite moral condemnation? These seafaring rascals
were idealized in literature long before Edison invented
the moving picture. If we insist on saying movie “pirates,” then
we make Gilbert & Sullivan’s “The Pirates
of Penzance” a troubling tract for the opposition: “And
it is, it is a glorious thing / To be a Pirate King!” And
now that the sturdy romantic myth of pirates has a modern
incarnation in no less than Johnny Depp, why would we implicitly
pit ourselves against hugely popular icons?
The people who steal movies are thieves,
nothing more and nothing less – neither the murderers nor the romantic
swashbucklers of sea piracy. “Pirate” is already
defined in the U.S. Code as someone who, among other elements, “commits
any murder or robbery … on the high seas.” (18
U.S.C. § 1652.) However tempted we might be to import
some of the stigma, if not the romanticism, of murderous
sea piracy, it is simply not accurate.
Moreover, as we learned at ShoWest, the
translation of “piracy” in
some languages is misleading – sometimes bizarrely.
In one Eastern European language, “piracy” translates
roughly into picking up something free off the ground.
Few languages cleanly translate “piracy” into
what it is for our purposes: theft. Movie theft is clearly
an international scourge – indeed the dominant form
of movie and music commerce in some countries. It cannot
help our cause if “piracy” gets translated
into something benign or romantic.
So we’re shifting out of “piracy” and
into “movie theft.” Clean. Precise. Translates
well. Aarrrgh. (Which reminds me of a joke. What are all
pirate movies rated? “Rrrrr.”)
NATO’s commitment to combating movie
theft takes many forms. Our current rigors include (1)
strengthening
the legal structure governing movie theft; (2) encouraging
prosecutions of movie thieves; (3) enhancing both training
and incentives to prevent camcording inside theatres; (4)
educating patrons on the negative effects of movie theft;
and (5) coordinating with cinema association leaders overseas.
I’ll focus here on the first. Most
stolen movies that end up in the racks of street vendors
or on the Internet
originate as illegal camcordings in movie theatres. Thwarting
such illegal camcording, however, has confronted two major
obstacles. First, getting local police involved has often
been challenging because they tend to resist enforcing
somewhat abstract federal copyright law. Second, theatre
owners and employees acting in good faith to thwart illegal
camcording risk spurious, expensive and vexatious lawsuits
for defamation, false imprisonment, assault and the like.
The solution? Get a specific anticamcording
law written into federal and state law, and couple that
criminalization
of camcording with an immunity for theatre owners similar
to the “shopkeepers immunity” common in many
states. Theatre owners who act reasonably in detaining
a suspected camcording patron then could not be held civilly
liable for that detention.
Our partners at the MPAA have done stellar
work lobbying multiple state legislatures, and consulting
and coordinating
with our regional affiliates and NATO itself. The current
count of states with anticamcording laws is 21 plus the
District of Columbia, and likely to be higher by the time
you read this column. Special thanks to Amy Isbell, Todd
Flournoy, and Angela Miele for their skill, dedication
and wonderful collegiality.
At the federal level, the anticamcording
bill that stalled at the end of the last session is now
poised to pass – and
likely will have passed by the time you read this column.
As of this writing, the Family Entertainment and Copyright
Act of 2005 (S.167) has passed the Senate, and been voted
favorably out of the House Judiciary Committee. It awaits
only formal floor action in the House whereupon it can
be sent to President Bush for his signature. Thus will
we have a federal law – applicable in all 50 states
and the District of Columbia – that specifically
criminalizes camcording in movie theatres, and empowers
theatre owners and employees to detain suspects in a reasonable
manner without fear of costly litigation.
Why, you might ask, should we pursue both
federal and state laws? Because the federal law gets us
a broadly applicable
law, but the state laws are more likely to resonate with
local law enforcement. That is, some local police may still
balk at schlepping to a movie theatre to enforce a federal
law with which they have little or no familiarity, but
might more likely respond to a call based upon a clear
and specific state law (and if they were not familiar with
it, they would more likely conclude that they ought to
become familiar with it). Moreover, parallel state and
federal laws give prosecutors greater flexibility as to
which law and which justice system better suits the crime
at issue.
In addition to our state and federal initiatives, the legal
framework governing movie theft likewise has an international
dimension. Free trade agreements, for example, now include
specific protections of intellectual property, as well
as commitments to stronger enforcement of these protections.
The current trade agreement under consideration in Congress
is the Dominican Republic – Central American Free
Trade Agreement (DR-CAFTA), which might have passed Congress
by the time you read this column.
DR-CAFTA contains numerous intellectual
property protections, procedures for copyright owners to
assert their rights
efficiently and fairly, and strong enforcement measures
against thieves, distributors, and end-users. Additionally,
though not directly relevant to movie theft, DR-CAFTA contains
provisions relating to movie tariffs, fair customs valuation
of movies and other media, market access for American movies,
and investment protections for our members building, or
some day wishing to build, cinemas in Central America.
NATO has begun working with the Entertainment
Industry Coalition for Free Trade to lend our support for
passage
of DR-CAFTA. We believe it important to signal solidarity
with our members who have, or contemplate, international
operations. We believe it important to confirm our consistent
commitment to intellectual property protections, at home
and abroad. And we believe it important to consider these
trade agreements as possible vehicles for securing, in
the future, fairer trade arrangements for our members with
international operations.
As we are newcomers to the trade arena,
we are indebted to the intelligence, professionalism and
collegiality of
the MPAA’s Bonnie Richardson. Bonnie certainly impressed
our members at the ShoWest meeting of NATO’s International
Committee. A special thanks, then, to Bonnie and to her
colleague Anna Post, as with Amy, Todd, and Angela – and
to all of our MPAA partners who likewise discern the higher
road of consultation and coordination. 
