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Thursday, June 10, 2010

Hurt Locker Lawsuit

Per Sam Adams, Nicolas Chartier, the producer of the Hurt Locker has filed a lawsuit against a number of file sharers who downloaded the movie using BitTorrent. Very interesting to me was Adams's discussion of an email exchange between Chartier and a user calling himself Nicholas:

Apart from calling Nicholas a "moron," and adding "I hope your family and your kids end up in jail," Chartier characterized downloading as a cross between physical theft and home invasion: "[P]lease feel free to leave your house open every time you go out and please tell your family to do so, please invite people in the streets to come in and take things from you, not to make money out of it by reselling it but just to use it for themselves and help themselves."

Although not defending Chartier's obviously flawed analogy between downloading data and home invasion, Adams is also not too sympathetic with file sharers.  Here's his take:

What's striking about some of the responses to Chartier is the underlying sense of entitlement. Commenters pleaded poverty as their reason for downloading the film, implausibly implying that they can afford high-speed Internet but not a $4 Blockbuster rental, and overlooking the fact that the ability to view "The Hurt Locker," or to see any movie or hear any album, is a luxury and not a right.

I hear what Adams is saying, and I'm not altogether insensitive to this line of criticism of file-sharing, but I do think that it's a bit simplistic to call the consumption of culture a "luxury and not a right." 

Hollywood does all it can to make the symbols and stories it peddles an essential part of our cultural lexicon.  But when royalties are at stake, it is quick to say that no one really needs to consume the product it produces.  It seems to me that our needs go beyond the provision of food and water and include access to a shared culture, which, given our system of cultural production, means access to intellectual property.  On the other hand, I have no doubt that many file-sharers are likely people who could afford to pay for their access to that culture.

Where I think I disagree more vigorously with Adams is his search for some sort of middle ground that excludes both groups he criticizes:

What seems to be missing from the "Hurt Locker" discussion is a middle ground where creators and consumers can meet. "I think the industry has made a real push to get file-sharing seen as theft, while the people who are users think about file-sharing as sharing," says Jennifer Granik, EFF's director of civil liberties. "Neither of those rhetorical points are representative of what the law is." All the back-and-forth obscures the real issue, which she puts in simple terms: "Artists should get paid, fans shouldn't be sued and content should be easier to access."

I'm not exactly sure what he has in mind, but I think it's wrong to see the debate as some sort of tug of war between equally unreasonable positions.  It's quite possible for both sides in a debate to be wrong, but not equally so.  And, if I were forced to choose between an industry pursuing lawsuits that ruin lives on the one hand (not to mention Chartier's unhinged moral equation of file sharing with violent crime) and overly simplistic libertarian sloganeering on the other, I'd take my place with those in the latter camp any day of the week.  I'm not saying I agree with those slogans as a matter of IP policy, just that, in my opinion, the middle ground that Adams seeks is pretty much foreclosed by the extreme position of the well-connected content-owners who have pretty much had a free hand in designing the current copyright system. 

As Sonia Katyal and I argue in our book, Property Outlaws, the more expansive and repressive copyright law has become, the less legitimate it has become in the minds of consumers and, as a consequence, the more of a disobedient reaction it has engendered.  I think it is this perceived illegitimacy that generates a great deal of the strident the rhetoric of the disobedient actors, like the BoingBoing commenters Adams criticizes.  That rhetoric may not be wise, but the two sides do not share equal blame for the current, untenable state of affairs, since only one of them has had the power to reshape the current legal landscape.  Until the entertainment industry realizes that its current punitive strategy undermines its efforts to spread norms of respect for intellectual property, the consequence will be even greater skepticism about the legitimacy of IP law as a whole and therefore even greater levels of disobedience.  And the middle ground that Adams hopes for will remain a fantasy.

Posted by Eduardo Penalver on June 10, 2010 at 04:00 PM | Permalink


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"Hollywood does all it can to make the symbols and stories it peddles an essential part of our cultural lexicon." The idea here I take it is a sort of assumption-of-the-risk-type argument: copyright owners that thrive when their works tap into the zeitgeist have no legitimate cause for complaint (or a mitigated cause for complaint) when that very effort causes unauthorized filesharing.

There's a couple of problems with applying that type of argument here though. The "cultural reference" argument has the most power, I think, when applied to noncommercial derivative works, a/k/a remixes. But that's not the situation here. I don't see how the creation of a cultural reference point affects the legitimacy or non-legitimacy of distributing unauthorized verbatim copies. Even if it did, is "The Hurt Locker" really "an essential part of our cultural lexicon"? If the idea is that *all* copyrighted works are at least *striving* to be an essential part of our cultural lexicon, and therefore have less cause for complaint when nonprofessionals copy them, I don't see how the argument is really doing any work at all beyond simply saying copyrights should be calibrated differently. The striving is irrelevant.

Posted by: Bruce Boyden | Jun 12, 2010 12:51:52 AM

Ok, I'll bite.

I'm only 40, and I've observed the rise of the entitlement mentality Chartier describes among students a generation behind me. Abstractly, I agree that concepts such as "fair" and "reasonable" are bound to wax and wane with the times, and one day everyone who shares my view of where the line should be drawn will be dead. That's life. But, there are two questions I have, stimulated by Eduardo's comments.

First, do you actually believe it is the RIAA (and now, Hollywood) that is responsible for the rise of the entitlement mentality? I think that is ludicrous. It's true that many young people cite the perceived thuggery of copyright owners as a justification for helping themselves to freely available works. Would you accept such a transparently self-serving justification in any other context - say, on behalf of a group in which you would instinctively decline to "take [your] place"? I was thinking recently about the standard student response to schools' anti-laptop policies: the boring lecture made me do it. Sure, lectures should be reasonably interesting (which may be an unrealistic way to prepare for law practice), but it is no coincidence that this defense neatly takes the student's internet-addled attention problems out of the equation.

I can't see how the rhetoric of copyright law, however abused, has fundamentally altered my own relationship with commercially available content - for which I am happy to pay the increasingly insubstantial fees. I understand that the next generation is more keen to use copyrighted art in ways I do not; where I disagree with you is the suggestion that this desire is itself a response to that rhetoric.

My second question is something I've wondered about since the rise of copyright criticism in recent years (I vaguely understand this to be the "copyleft" movement, but I am not familiar enough with its contours to be certain this your perspective). Do law professors who feel this way about music or movies feel the same way about people who plagiarize the professors' own work? In other words, if I paste together some sections from your book, along with a few blog entries from Larry Lessig, and slap a fancy new title with a colon on it, should I expect you to celebrate my creativity, and respect my "ownership"? After all, by publishing books and blog posts, you're certainly "doing all [you] can to make the symbols and stories [you] peddle an essential part of the cultural lexicon" of legal scholarship, no?

This latter question is so obvious, I've always assumed Lessig - without question, a smart fellow - has answered variants of it many times. But, lurking beneath the fog of words younger people throw in response to questions about file sharing, is, I think, the fact that so few of them have ever created something someone else might want. Does the "theft" of authorship differ from the "theft" of the content itself?

Adam Scales

Posted by: Adam Scales | Jun 10, 2010 7:18:29 PM

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