Torrents and the TARDIS

December 13, 2009
A thought by James Berardinelli

If you were to ask a random group of Hollywood executives what the greatest problem facing the industry is, three out of four would probably say "piracy." They would cite, chapter and verse, the overinflated numbers being circulated about how much money the studios lose as a result of pirates, the make an illogical jump that somehow connects the pimple-faced kid downloading a cam copy of New Moon with an organized distribution industry in Asia that floods the market with $1 DVDs.

I have long been an advocate of changing copyright laws, and I have written extensively about this in the past. It makes no sense to apply rules & regulations that were developed for a pre-electronic society upon today's world, but that's what we're doing. In order for copyright laws to be relevant and binding, and in order for the concept of a "copyright violation" to be meaningful, definitions need to change. The more coherence and common sense there is, the less likely it will be for anyone to claim ignorance as a synonym for innocence.

It's all about revenue. If the copying and/or distribution of a document or product results in an indisputable loss of revenue, it's a copyright violation. Also, if the copying and/or distribution of a document or product results in someone other than the owner making unauthorized money, that's a copyright violation. The devil's in the details, to be sure, but let's examine a few cases. First, the Asian pirate who sells pristine knock-offs of Hollywood DVDs. Every purchased copy does not represent a loss of revenue to a studio. One cannot assume that, in the absence of the illegal copy, the buyer would have purchased a legitimate one - in many cases, he/she would have bought nothing. However, it does represent money being made by an illegitimate source. This is a clear and incontrovertible copyright violation under my proposed definition.

Now consider the pimple-faced teenager downloading a copy of Hot New Blockbuster to watch in the privacy of his/her home. Is this a violation? Depends on intent. If he or she is making the download as a substitute for seeing the film in a theater or buying a DVD then, by depriving the multiplex of a ticket sale or the store of a DVD purchase, it is. But if he or she is doing it merely to have a copy "on hand" (perhaps as a stop-gap until the DVD is officially available) or to "sample" it, then it isn't. I have argued that the majority of illegal downloaders represent no loss of revenue. They're downloading a copy out of love of the movie because that's the only way they can have one until the DVD is available (understand the fan mindset), or they are downloading something they never would have paid to see in the first place. Most of us will watch crap available for no cost (TV) that we would never consider paying $10 for. It's the same philosophy. Take away the free illegal download and many would simply bypass the film altogether.

I'm not going to claim that illegal downloading doesn't hit the studio in the pocketbook. There are people who routinely engage in this practice as an alternative to (a) going to theaters, (b) renting/buying DVDs, or (c) getting a Netflix/HBO/Showtime subscription. However, there are also people who come to love a movie as a result of an illegal download and enriching the studio's coffers. True story: I know someone who had little interest in Harry Potter. Around the time the fifth movie came out, which was also when the final book was released, he had grown curious enough about the series to download a cam-copy of The Order of the Phoenix. He liked what he saw. So he went to Blockbuster and rented the first four movies. Then he saw the fifth in a theater. Then he purchased the sixth and seventh books to find out what happened. Next came books one through five and copies of all the movies. A Harry Potter die-hard was born because of an illegal download.

Then there are some weird gray areas. Here's an anecdote. This summer, I was writing reviews of '80s movies. The day before I was scheduled to post a review of Born on the Fourth of July, I sat down to watch the film on DVD - I hadn’t seen it in nearly 20 years. I owned a copy, having bought it many years before when it first became available, but I had never popped the disc into the player. (I would estimate I have never watched about 1/3 of the DVDs I have purchased.) Turns out the disc was bad. I tried it in three different players (a PS3, a standard DVD player, and my computer) and none could play it. So I went on-line to see if I could stream it from Netflix. No such luck (although I could order it conventionally). A quick perusal of available torrents showed that I could download a DVD-quality copy. So is it a copyright violation to download such a copy to replace one I had paid for but had been deprived of as a result of a manufacturing error?

That brings us to television. When it comes to commercial TV, no one much cares about downloads. In fact, a majority of shows are made available via their networks for free streaming viewing (with limited commercial interruption). I just watched the Zooey Deschanel guest appearance on Bones this weekend, and have previously used this method for episodes of House and 24.

HBO and Showtime programs are another matter, since those are pay channels. One has to subscribe - sort of. Whole seasons of HBO/Showtime shows are typically available for streaming via Netflix shortly after the DVDs are released. It's unfortunate that HBO and Showtime don't offer individual "program download" packages. For a pre-set fee, it would be nice to have unlimited access to high quality streaming copies of new episodes of, say, Californication or Big Love. This would allow me to bypass that Great Satan Comcast (which wants to charge me a $60 "connection fee" for either Showtime or HBO) and not have to wait until the DVDs are available. But I'm patient.

When it comes to British TV, and Doctor Who in particular, I'm not going to attempt to venture into the morass of what's legal and what isn't. Downloading previously broadcast Doctor Who episodes inhabits a realm somewhere between the "free" zone and the "pay" zone. In the U.K., it's not free in that it's funded in part by a licensing fee charged by the BBC. In the U.S., it's primarily on cable (although there may still be an outlying PBS station or two that shows it), which means it's not strictly free here, either, since even the most basic cable package costs something.

I started watching Doctor Who in 1978 when it aired in half-hour nightly installments on my local PBS station around dinner time. (It was either 5:30 pm or 6:30 pm; I can't recall which.) The package distributed by the BBC through Time-Life television was for the first four seasons of Tom Baker episodes. For the better part of two years, all I had available were those episodes, many of which had been shown as far back as six years previously in England. In 1981, the second Tom Baker package arrived - three more seasons - and things progressed from there. But the U.S. was always significantly behind the U.K. when it came to Doctor Who, except on one occasion. In 1983, when the show celebrated its 20th anniversary, the special 90-minute episode, "The Five Doctors", was set to air on November 23 both on PBS stations stateside and on BBC1 across the ocean. In the U.S., the airing went as scheduled, but a snafu related to the "Children in Need" charity event occurred in the U.K. and the episode was delayed to (I believe) the 25th.

All through the mid- and late-'80s, PBS stations were able to show new episodes about nine months after their British airings. Devoted Doctor Who fans could read summaries and reviews in magazines and see copies at conventions. Bootleg tapes, often of terrible quality due to repeated copying, were widely circulated in fan circles. Still, for the average American fan, eager to see the new product, the wait could be agonizing.

By the time the show returned in 2005, things had changed. Now, the sharing of episodes could be accomplished on-line; no longer did it require a PAL-to-NTSC videotape conversion and a mailing list. When "Rose" aired in 2005, it became one of the most popular downloads in the U.S. At the time, New Who did not have a U.S. distributor. By the time Syfi (née The Science Fiction Channel) belatedly picked it up, I would bet every serious Doctor Who fan had already seen every new episode at least once. Things got better on Syfi with respect to the U.K./U.S. delay. Series One was about a year late. Series Two was six months late. Series Three started in the U.S. around the time it finished in the U.K. And Series Four was only a month behind. Enter BBC America, where Doctor Who now resides.

When it comes to a property like Doctor Who, what's the best way to reduce the "piracy" that results from impatient fans unwilling to wait weeks or months to see episodes that have aired in the U.K.? Easy - cut down the delay to almost nothing. And that's what BBC America has done. The final two-part story featuring David Tennant as the Doctor will air on December 25 and January 1 in the U.K. BBC America will present it on December 26 and January 2. Undoubtedly, many fans who might have downloaded those episodes rather than wait for their U.S. TV debuts will now do otherwise. 24 hours is a reasonable period to wait. The DVDs will be out in early February (although that may prove to be too long a lag for those whose cable company doesn't provide access to BBC America.)

My point: BBC America gets it. They understand that by working with the public, it's a win-win situation. The fans get the program on TV without legal questions very soon after it has aired in the U.K. And BBC America gets more eyeballs watching. Syfy treated Doctor Who and its fans like dirt and reaped the rewards. They then had the gall to complain about "disappointing ratings" when they had done everything imaginable to ensure that die-hard fans found other means to view the program.

Is it too much to hope that the motion picture studio heads drink from the same vat of Kool-Aid as the BBC America honchos? Why not work with movie fans instead of against them? Why not promote a climate of cooperation instead of one of mistrust? I'm all for going after pirates, but the targets should be chosen with more discrimination and intelligence than they are today. Leave the pimple-faced kids alone and focus on the black market operations that cause the real financial damage.