Pirates of the Cinema - "What", "Where", "When", and "How"

February 16, 2004
A thought by James Berardinelli

When it comes to Asian piracy, the biggest sellers are DVD titles. In a way, these can be the hardest to crack down on, because all the pirates are doing is taking a legitimate title and making illegal copies. And, because the DVD covers are done professionally, it can often be difficult for anyone without a trained eye to determine whether a DVD is pirated or actual. Ultimately, price is the determining factor, since pirated DVDs are substantially cheaper than the real thing.

There has been no concerted effort to eliminate overseas pirating of Hollywood movies. From time to time, noises have been made, but the truth is that over 90% of the DVDs sold in countries like Thailand, Vietnam, Korea, Indonesia, the Philippines, and mainland China are pirated, and there are no indications that this is likely to change. For the studios, this represents a major financial hit. This isn't theft of value; it's lost revenue. Take away all the pirated copies (or at least a majority of them), and a percentage of those buying the illegal ones would purchase the legitimate ones, even at a higher price. If the industry would focus their time and effort on the overseas situation, they might be able to make inroads. Instead, however, they stubbornly insist that on-line piracy is the problem. I can't figure out whether the people making the decisions are stupid, ignorant, or badly misinformed. It's probably a combination.

Although most of the overseas piracy is of titles currently available on DVD, Americans (for the most part) aren't interested in those movies. They're old news. Sure, some theft of DVD content goes on, but it's a small percentage of domestic piracy. The hot items are current theatrical releases. The newer, the better. And, on those occasions when something materializes on-line before it hits theater screens, it is considered a huge coup. Remember The Hulk? A major public relations nightmare for Universal turned out to be a big credibility boost to whichever underground figure received credit for first making the pirated copy available.

There are three ways that new movies get on-line: copies of screen captures, copies made from "screeners," and "inside jobs." I'll consider them in order.

The high number of screen captures floating around on the Internet offers compelling testimony that those who download movies are less concerned about quality than about being able to boast that they "own" a copy of a generally unavailable film. Screen captures are the result of someone taking a camcorder into a movie theater and filming the image off the screen. The results are abysmal - poor video and worse audio. For the most part, these don't start popping up until after a movie has entered general release, although there have been occasions when someone has snuck a camera into one of those radio station-sponsored promotional screenings. Lately, the studios have been trying to crack down on this sort of thing, but, in order to be successful, they need more than the half-hearted help they're getting from theaters. Promo screenings are usually carefully monitored (pat downs and "wanding" by hand-held metal detectors have become routine), but, once opening day comes around, it's open season. No multiplex is going to station one security officer in each auditorium looking for someone doing something nefarious with a camera - not unless the studios are willing to pay the bill (which they aren't).

The issue of how to deal with so-called "screeners" has become a minefield. Screeners are the free DVDs and/or VHS tapes sent to Academy members, film critics, and other notable individuals around awards time so that limited distribution pictures can be considered for year-end Top 10 lists, critics' awards, and Oscar nominations. The MPAA rightly recognized that pirates were getting their hands on screeners. So, in a classic case of overreaction, Jack Valenti decided to stop all screeners from going out. Thus began one of 2003's biggest year-end controversies. The complete ban didn't last long. After a brief consideration, the MPAA decided to allow screeners to be sent to Academy members. Shortly thereafter, the courts got involved and it pretty much became business as usual.

The reality is that copies of screeners represent a minority of pirated movies. The solution is not to stop distributing screeners, but to stop doing so arbitrarily. Make sure that each copy is electronically encoded with information that can be traced to the recipient. (This was done in a limited, haphazard way - it likely will be refined by the end of 2004.) That way, if a screener is copied and made available on-line, it will be easy enough to determine who should be censured (and/or prosecuted).

But the biggest problems, and the ones that have yet to be addressed publicly, are the in-house leaks. Before a film is in its final form, copies are made available to all sorts of people within a studio. The path a movie travels between its near-final state and its final state takes it through dozens of hands. The lack of internal control and policing makes it very easy for a low-level employee to smuggle out a copy of a movie and sell/trade/give it to a pirate, who then quickly disseminates it.

The best quality on-line copies are those derived from screeners and in-house sorce material. The latter may be incomplete or work prints (this is what happened with The Hulk - the version that appeared on-line did not have the final special effects). Nevertheless, even the best quality on-line copies are vastly inferior to what can be seen in a theater or obtained on a legitimate DVD; hence the argument that real film fans - who are typically the ones doing the dowloading - will still see the movies in theaters and buy copies on DVD.

The final part of this commentary will concentrate on the question of whether there is a solution. Can the war against piracy be won? Is such a thing even desirable? I'll look at some of the flaws in the studios' current policies and discuss possible improvements before reaching a single, inescapable conclusion.