Good Stealing, Bad Stealing

Reel Blog   

(Originally posted August 2nd, 2007 @ 10:01 am.)

A 19-year-old woman was arrested for recording part of Transformers at Regal’s Ballston Common 12 in Arlington, VA July 17. The Washington Post has the story:

Sejas was enjoying the movie so much that she decided to film a short clip of the sci-fi adventure’s climax to get her little brother hyped to go see it.

Minutes later, two Arlington County police officers were pointing their flashlights at the young couple in the darkened theater and ordering them out. They confiscated the digital camera as evidence and charged Sejas, a Marymount University sophomore and Annandale resident, with a crime: illegally recording a motion picture.

“I was terrified,” said Sejas, her voice breaking. “I was crying. I’ve never been in trouble before.” She said the assistant manager of the theater saw her holding up the Canon Power Shot and reported it to the general manager, who called police.

Sejas said she had no intention of selling the 20-second film clip. She just wanted to show it to her 13-year-old brother, who had said he wanted to see the movie. She was shocked when the officers showed up.

Illegal camcording of movies in theaters is big business. According to a 2005 LEK study, pirated movies cost the movie industry $18.2 billion worldwide; U.S. movie theatres alone lost over $600 million. In response, the movie and movie theater industries have pushed for Federal and state laws making camcording in theaters a crime. In this case, the first under Virginia’s statute, the theater management chose to press charges.

Kendrick Macdowell, general counsel for the Washington-based National Association of Theatre Owners, said that illegal pirating of films costs the industry billions of dollars and that the industry was stepping up efforts to stamp it out.

Because of that, he said, there has to be a “zero-tolerance policy at the theater level.”

“We cannot educate theater managers to be judges and juries in what is acceptable,” he said. “Theater managers cannot distinguish between good and bad stealing.”

Macdowell said the trade association, which represents 28,000 screens nationwide, realizes there is a difference between “egregious acts of stealing our movies and more innocent ones.” But he said that distinction needed to be made in court rather than by theater managers.

It seems rather plain that, in a dark theater, determining whether or not someone is camcording for purposes of disseminating a film or copying a scene to encourage a friend’s attendance is impractical and fraught with uncertainties. Should they be allowed to camcord if young and attractive? Stopped if they are wearing an overcoat? Are theater employees and managers going to have to begin profiling their customers to decide who is a good camcorder and who is bad?

Clearly, theater owners have both a right and a responsibility to protect their livelihood. Numerous states and the Federal government concur. Theaters have posted signs and posters warning of the consequences of unauthorized recording in movie theaters. It seems excessive to expect theater employees – who, after all, have other jobs to do aside from stopping camcording – to also act as judges and juries when they find someone violating the law in their workplace.

Just as clearly, occasionally someone will try to record a movie in a movie theater without malign intent. How do you decide? Who decides? Isn’t this something a a professional prosecutor should decide?

Update – Aug. 3, 2007; 9:15 PST:

The blogosphere weighs in.

Calls for boycotts, Amateur lawyering, and a general misunderstanding of the law involved. There is a perception among many commentators that “fair use” should somehow protect the young woman involved. Was it ever considered fair use to record in a movie theater without permission? Has evolving technology changed the idea of what is fair?

More to the point, the pertinent law specifically bans use of recording devices in movie theaters:

§ 18.2-187.2. Audiovisual recording of motion pictures unlawful; penalty.

A. It shall be unlawful for any person to operate an audiovisual recording function of a device in a commercial theater, excluding the lobby and other common areas, to record a motion picture or any portion thereof without the consent of the owner or lessee of the theater. Any person who violates the provisions of this section is guilty of a Class 1 misdemeanor.

B. The owner or lessee of a commercial theater where a motion picture is being exhibited, or his authorized agent or employee, who has probable cause to believe that a person has made a recording in violation of subsection A on the premises of the owner or lessee, may detain such person for a period not to exceed one hour pending arrival of a law-enforcement officer. Such owner, lessee, agent or employee shall not be held civilly liable for unlawful detention if such detention does not exceed one hour, slander, malicious prosecution, false imprisonment, false arrest, or assault and battery of the person so arrested or detained, whether such arrest or detention takes place on the premises of the owner or lessee or after close pursuit from such premises, provided that, in causing the arrest or detention of such person, the owner, lessee, agent or employee had at the time of such arrest or detention probable cause to believe the person was making or had made an illegal recording in violation of subsection A.

C. This section shall not apply to any lawfully authorized investigative, law-enforcement, protective, or intelligence gathering activity by an agent or employee of the Commonwealth or the federal government.

D. The term “audiovisual recording function” means that component of an analog or digital photographic or video camera or other device developed with the capability to record or transmit a motion picture or any part thereof.

(2004, c. 759.)