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The global 'epidemic' of movie 'piracy': crime-wave or social construction? Majid Yar Media Culture Society 2005 27: 677 DOI: 10.1177/0163443705055723 The online version of this article can be found at: http://mcs.sagepub.com/content/27/5/677

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The global ‘epidemic’ of movie ‘piracy’: crimewave or social construction? Majid Yar UNIVERSITY

OF

KENT

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CANTERBURY, UK

We have seen our future, and it is terrifying. (Fritz Allaway, Motion Picture Association of America)1

If economic losses are an indication of a crime’s seriousness, and if current estimates are to be believed, then film2 ‘piracy’3 constitutes a crime-wave nearing epidemic proportions. According to US movie industry representatives, 2002 saw annual financial losses through ‘copyright theft’ rise to somewhere in the region of $3 billion (MPAA, 2003a). Since the commercialization of VCRs in the 1970s, the film industry has been ringing alarm bells about the potentially crippling financial losses that might be incurred through the unauthorized (and more importantly unremunerated) copying, distribution and sale of its products (Bettig, 1996: 151–81; Segrave, 2003). In recent years, the pace of economic, political and technological change has seemingly accelerated the problem to a scale beyond even the worst-case scenarios of the 1980s. Meanwhile, public attention and legal controversy have focused more upon music ‘piracy’ via the internet, exemplified by the recording industry’s pursuit of Napster and other so-called ‘file-sharing’ services that enable home computer users to swap music in the form of electronic (MP3) files (Merriden, 2001; McCourt and Burkart, 2003). The movie industry, however, has been publicizing its own bˆete noire, in the form of digital media that enable large amounts of high-definition audio-visual content to be quickly and cheaply copied onto ‘optical disks’. The industry’s ‘anti-piracy’ effort has recently moved up the scale of political importance, riding the wave of a new economic agenda focused on innovation and competition in the global ‘information society’. While public anxieties have been sharpened by new Media, Culture & Society © 2005 SAGE Publications (London, Thousand Oaks and New Delhi), Vol. 27(5): 677–696 [ISSN: 0163-4437 DOI: 10.1177/0163443705055723]


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forms of intellectual property (IP), such as the patenting of gene sequences, Hollywood has been fighting its own campaign to convince legislators, law enforcement agencies and consumers that film piracy is far from benign or harmless. Along with claims of mounting losses (claims seemingly accepted and endorsed by public authorities), the industry has recently raised the stakes by claiming connections between movie ‘piracy’, ‘organized crime’ and even ‘terrorist’ organizations (see, for example, TraCCC, 2001; AACP, 2002). Given the far-reaching changes to IP rights and their enforcement that are being justified by such claims, the time seems propitious to subject them to some critical examination. The present article is organized into two main parts. In the first, I briefly introduce the all-important legal basis (namely copyright law) upon which the illegality of ‘piracy’ is constituted. I then go on to present current claims about the nature, scope and scale of the ‘piracy’ problem, as gleaned from sources published by film industry organizations, national governments (primarily the US and UK), international organizations (such as the European Union [EU], the World Trade Organization [WTO], the World Intellectual Property Organisation [WIPO]) and law enforcement agencies (such as Interpol). I then briefly explicate some of the ‘realist’ explanations that can been offered for the apparent dramatic rise in ‘piracy’, including the impact of globalization, the growth in consumption of media goods and the impact of technological change. In the second part, I subject these claims to critical analysis and suggest that statistics supporting a supposed near-exponential increase in ‘piracy’ need to be treated with considerable caution. Substantively, I point out a number of methodological problems with the compilation of this data, and suggest that there are good reasons to see the figures, at least in part, as a social construction whose increase can be attributed to shifting legal, political and criminal justice contexts which serve to ‘produce’ the problem of ‘piracy’ in its current scope and scale.

Defining, measuring and explaining the rise of movie ‘piracy’ Definition: ‘piracy’ and intellectual property law Settling upon a precise and internationally agreed definition of ‘piracy’ has proved remarkably difficult. However, all legal and economic uses of the term have their basis in intellectual property (IP) law and protection. IP law is itself immensely complicated, spanning as it does national, regional and international laws, treaties, conventions and directives, as well as judicial rulings and other precedents. Moreover, as Bently and Sherman (2001) attest, it is a field in radical flux, the past decade having seen far-reaching revisions in IP rights, beginning with the TRIPS (trade-related aspects of


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intellectual property) Agreement, which was finalized under the auspices of the WTO in 1994. While it is hopefully not necessary to revisit the long history and detailed development of IP law in the present context,4 a basic definition of ‘intellectual property’, and especially of ‘copyright’, is necessary if we are to grasp the current legal grounds upon which the problem of ‘piracy’ is constituted. At its most fundamental, ‘intellectual property’ takes the form of socalled ‘intangibles’, such as ideas, inventions, signs, information and expression. Whereas laws covering ‘real’ property establish rights over ‘tangibles’, IP laws establish proprietary rights over ‘original’ forms of intellectual production (Bently and Sherman, 2001: 1–2; WIPO, 2001: 3). IP can take a number of recognized forms – patents, trademarks, trade secrets, industrial designs and, crucially for us, copyright. Copyright, in essence, establishes the holder’s (e.g. an author’s) rights over a particular form of original expression (WIPO, 2001: 40–41). Typical objects of copyright include writing, music, paintings, drawings, audio-visual recordings and (most recently) computer software. As the term suggests, copyright grants the holder rights over the copying, reproduction, distribution, broadcast and performance of the designated ‘work’ or content. In essence the holder retains ownership of the expression and the right to exploit it through, for example, licensing its copying, distribution or performance in return for some financial compensation (e.g. the payment of a royalty or fee). Thus, for example, if I purchase a CD recording of songs, I have ownership over the tangible object (the CD), but not of the musical content of the CD, whose ownership remains with the copyright holder. Therefore, I am legally prohibited from copying, distributing or performing the content without authorization from the holder and the payment of some agreed compensation. In essence, ‘piracy’ amounts to just such an infringement of copyright (also known as ‘copyright theft’ and ‘IP theft’). In current parlance, ‘piracy’ refers to the unauthorized copying and distribution (often, though not necessarily, for commercial gain) of copyrighted content.5

Measurement: nature, scope and scale of the ‘piracy’ problem In recent years a number of actors have presented data detailing the extent (and growth) of ‘piracy’ as it relates to motion pictures. Most (but by no means all) of this data emanates from US sources, reflecting that country’s pre-eminent position in global film production (revenues in the order of $32 billion in 2002, accounting for 5.25 percent of US GDP – Carugati, 2003) and its place as the world’s largest net exporter of intellectual property more generally (Drahos with Braithwaite, 2002). The International Trade Commission estimated that, by the mid-1990s, piracy of US


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intellectual property (in all its forms) amounted to between $40 and $60 billion per annum (Boyle, 1996: 3, 121); by 2003, the United States Trade Representative (USTR) placed losses to counterfeiting at $200–$250 billion per annum (Hopkins et al., 2003). Counterfeiting has been estimated to cost the European and US economies over 200,000 jobs per annum (Vithlani, 1998: 25). The US copyright industries claim losses due to piracy in the order of $15 billion per annum (EC, 1998: 4), of which the motion picture industry claims some $3 billion and rising to a predicted $4 billion in 2004 (MPAA, 2003b). In 2002, over 7 million ‘pirate’ DVDs were seized worldwide (Valenti, 2003). The UK film industry, while dramatically smaller than its US counterpart, claims losses in the region of £400 million per annum, a piracy rate of some 30 percent (effectively, almost one in three British movies purchased in the UK is ‘pirated’) (FACT, 2003a). In 2002, UK seizures of ‘pirated’ films on optical disk (DVD) exceeded 1 million units, a three-fold increase on the previous year, while seizures of ‘pirated’ films on VHS videocassette (a ‘piracy’ format previously thought to be in decline) rose 100 percent (FACT, 2003b). According to the US and UK film industries, it is countries in the developing world and the former Soviet Republics that are the locus of movie piracy, having both the highest rates of domestic consumption for ‘pirated’ material, and the most extensive production of ‘pirated’ material for export to North America and Western Europe. Figures from the International Intellectual Property Alliance (IIPA) attribute film ‘piracy’ levels in excess of 90 percent to China, Ukraine, Indonesia, Colombia, Kazakhstan, Lithuania, Pakistan, Kuwait, Romania, and Bolivia (i.e. 9 out of 10 films purchased are unauthorized copies). In terms of US trade losses in 2002, the Russian Federation was deemed responsible for $168 million, China for $250 million and Brazil for $120 million (IIPA, 2003: 6). According to the MPAA, 2002 saw a major increase in the production of ‘pirate’ DVDs in the Russian Federation, which has some 26 optical disk plants capable of copying 300 million DVDs per annum; and, since demand within Russia is estimated at some 18 million units a year, the ‘excess capacity points to the fact that Russian pirates are targeting export markets’ (MPAA, 2003b). Meanwhile, the MPAA’s UK counterparts identify South East Asian countries as the ‘global centres of illicit production and export of counterfeit DVD film media’, with Malaysia as the epicentre (61 percent of the ‘pirate’ DVDs entering the UK supposedly arrive from Kuala Lumpur airport) (FACT, 2003a).

Explanation: social change and the rise of ‘piracy’ At one level, the rise of film ‘piracy’ can be explained by highlighting a number of socio-economic, cultural, political and technological changes



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that, in combination, create both the demand for such products and the means by which it can be more readily satisfied. This amounts to a ‘realist’ (Sayer, 1992) account that sees the apparent increase in ‘piracy’ as the real behavioural effect of a range of causal factors. First, we can note the global increase in demand for consumer goods in general, and media goods in particular (world imports of cultural goods rose from $47.8 billion to $213.7 billion between 1980 and 1998; imports to developing countries increased ten-fold between 1980 and 1998, from $5.5 billion to $55 billion – Ramsdale, 2000: 4). The creation of a relatively new and affluent middle class in developing countries (particularly in South Asian countries such as China, Malaysia, Taiwan and South Korea) has significantly expanded global markets for ‘luxury’ goods (Leong, 1999). In relation to media goods in particular, we can note the rapidly falling costs of home entertainment equipment and the commensurate growth in ownership that has rapidly expanded the market for the domestic consumption of movies. Moreover, the global dispersion of Western (especially American) cultural ideologies, values, aspiration and lifestyles has created greater appetite for media representations that embody those values (see Slater and Taylor 1999; Liebes, 2003). Hence, in one sense, the US culture industry can be seen as a ‘victim of its own success’ – it has been all too successful in persuading global audiences to take on American tastes, to identify with and aspire to the cultural milieu that its films encapsulate. Audiences have increasingly turned away from consumption of domestic film product, preferring instead Hollywood action blockbusters, romances, sci-fi and comedies (international box office receipts for American films amounted to $9.6 billion in 2002 – MPAA, 2003c: 1). Hence, as the market for US film and media has expanded, so have the costs incurred by losses to ‘piracy’ (even if the level of ‘piracy’ as a proportion of overall trade in films had remained constant). In addition, we can note the potentially counter-productive impact of pricing strategies for media goods. It can be suggested that the search for profits has led copyright industries to price their goods at levels beyond the practical reach of large portions of their target markets, thereby creating an incentive for consumers to turn to cheaper ‘pirate’ copies.6 As Choi (1999: 2) notes, there is a close correlation between per capita GDP and piracy levels, with the highest piracy rates to be found in those countries with the lowest incomes, and vice versa. Whereas consumers in ‘developed’ countries are more able, and more likely, to prefer ‘legitimate’ goods, ‘pirated’ products have greater appeal for those whose incomes make the ‘legitimate’ goods prohibitive due to cost factors (1999: 2). Indeed, the Malaysian minister for trade and consumer affairs recently blamed the recording industry’s pricing policies for the high levels of ‘piracy’ within the country. He pointed out that ‘pirated’ films are generally those marketed at a price prohibitive for the Malaysian consumer (RM $30 –


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about US $8); in contrast, those marketed at lower prices (as little as US $2.60) seldom appear amongst ‘pirated’ films, since they are within the affordable range for Malaysian consumers (Chai, 2003). This has led the Malaysian government to threaten use of its Price Control Act to force down prices for media goods in order to combat ‘piracy’ (Fai, 2003). Hence a combination of consumer demand, technical capacity and pricing strategy can be seen to stimulate demand for ‘pirate’ media, especially in developing markets. Second, we must note the impact of ongoing processes of economic globalization, which have helped establish transnationally distributed chains of production, distribution and consumption (Held et al., 1999). As ‘legitimate’ world trade becomes increasingly configured around multiple networks of ‘flows’ in goods and services (Castells, 1996) so a parallel ‘illicit’ global economy develops in its wake (Castells, 1998; Newman, 1999; Wang and Zhu, 2003: 98–101). A particular problem arises around the policing of borders and the establishment of customs controls. Given the increasing economic dependence on international trade, there are pressures to alleviate border restrictions so as to encourage the free flow of goods and to minimize the transaction costs incurred by business (Vithlani, 1998: 26; Robinson, 1999: 81–2). This sits in tension with the need to institute more rigorous regimes of border inspection and control to curtail movement of ‘illicit’ goods, especially in the context of a significant increase of such movements (see Nelken, 1997; Ruggeiro, 2000). Given the absence of additional resources needed to keep pace with the increase in cross-border flows, customs agencies are unable to inspect more than a small proportion of shipments (In 1997, US customs inspected only 3 percent of shipments entering the country – Vithlani, 1998: 26). The dilemma of global trade is that: In view of the world wide growth of regional economic integration (e.g. the European Union and the North American Free Trade Agreement), the effects of any expansion in border measures . . . have been offset by a more general trend in favour of dismantling border controls to ease the flow of international trade. (1998: 26)

Hence one side effect of increasingly porous borders has been to create greater opportunities for transnational shipments of ‘illicit’ goods to reach potentially lucrative markets. A third factor has been the impact of a range of technological developments. I have already noted the availability of affordable equipment for home consumption of audio-visual media. Even more important in stimulating ‘piracy’ has been the development of technologies for efficiently manufacturing cheap, high-quality digital copies of audio-visual media content (NRC, 2000). As James Boyle notes:



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. . . the facilities for copying . . . have increased in quantum leaps over the last ten years. As the marginal cost of both hardware and copying drops, the ‘information content’ assumes a greater proportion of the product’s value. (1996: 3)

In other words, as the price of both copying equipment and ‘blank’ media continues to fall, this reduces start-up costs and increases profit margins, thereby encouraging more ‘pirates’ to enter the market. This removal of cost-barriers appears to be encouraging ‘a gradual return to domestic based piracy . . . eliminating the need for foreign pirate imports’ (FACT, 2002: 2). This enables ‘pirates’ to overcome a number of drawbacks associated with reliance upon foreign imports, such as the potential ‘audit trail’ left by international payments, the lack of control over the goods ordered, the need to share profits with the manufacturer and the risk of shipments being confiscated at the border (FACT, 2002: 2). Indeed, the falling cost of equipment and the minimal technical knowledge required is encouraging the growth of ‘garage pirates’ who engage in relatively small-scale copying and distribute products through informal networks, such as the workplace.7 Also of significance has been the improvement in copy quality brought about by the transition from analogue to digital media formats. The MPAA notes, in an inadvertent advertisement for ‘pirated’ movies, that ‘unlike traditional analogue piracy, a digital pirated disc is as pure and pristine as the original’ (MPAA, 2003a). In addition to the high quality of the audiovisual content, the ready availability of sophisticated desktop publishing (DTP) software, scanners and ‘photo quality’ printers for PCs enables even the small-scale pirate to present movies in high-quality packaging.8 When the ‘pirate’ product is largely indistinguishable in quality and appearance from its authorized counterpart, the price-conscious consumer has an extra incentive to opt for the cheaper product. A final, and increasingly significant, technological factor in film piracy has been the growth of the internet. Worldwide, there are now an estimated 605 million internet users, with over 190 million in Europe, and well over 180 million in both Asia-Pacific and North American regions (NUA Internet, 2003). In the USA, 61 percent of households have internet access (MPAA, 2003d: 50), and penetration rates are as high or higher in a number of European countries (such as the UK, Denmark, Sweden, the Netherlands); Asian countries such as Singapore, Taiwan, Japan and Hong Kong have penetration rates in excess of 50 percent (NUA Internet, 2003). The growth of ‘broadband’ internet access in particular enables users to quickly download large quantities of audio-visual content in compressed format (over 33 percent of US internet users have broadband access and over 53 percent in Canada – Comscore, 2003). According to industry figures, more than 350,000 unauthorized downloads take place every day (Valenti, 2002); if true, this would amount to a staggering 125 million film downloads per annum. The internet abounds with ‘file-sharing’ sites that


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enable home computer users to exchange the digitized films on their harddrives (there are a number of techniques for ‘ripping’ films from their original format, and readily available tools for bypassing copyright protection systems, enabling them to be converted into digital files suitable for download – see Rassool, 2003: 5–6; Vaidhyanathan, 2003: 176–7). The scale of such ‘file-sharing’ on peer-to-peer (P2P) networks is hinted at by the fact that, in an 18-month period from 2001 to mid-2002, US copyright holders issued 100,000 cease-and-desist orders to online movie sharers (Ananova, 2002). And, as industry representatives admit, the ‘increasingly decentralized, fragmented and anonymous’ nature of these services makes litigation a severely limited tool for curtailing file-sharing (Valenti, 2002). In addition, there are numerous commercial ‘pirate’ download operations which, for a minimal monthly fee (around $1–2), give subscribers access to thousands of films,9 many of them still showing in US cinemas and not yet even released in other markets. For example, at the time of writing, major Hollywood films such as The Hulk, Terminator 3, Pirates of the Caribbean and Tomb Raider 2 (all awaiting theatrical release in Europe) were readily available for download. Such pre-release availability is cited as particularly damaging for the film industry as it threatens to undermine the primary income source for films, namely revenues from theatrical release.

Deconstructing the ‘epidemic’: the social production of ‘piracy’ In contradistinction to the foregoing discussion, this section will explore the manifold reasons for treating with scepticism official claims about the ‘piracy’ problem. I suggest that, while there may be some truth to claims that ‘piracy’ has increased significantly, and that this may be attributed to the aforementioned nexus of social, economic and technological changes, this does not tell the whole story. Instead, we need also to examine with a critical eye the social processes by which ‘piracy’ is itself being constituted (and reconstituted) as a legal (and moral) violation, and to consider how quantifications of the ‘piracy’ problem are themselves the outcome of a range of contingent (and interest-bound) processes and inferences. Specifically, I will address four main issues: first, the impact of changing regimes of copyright law; second, the impact of ongoing attempts to move copyright violation from the realm of ‘regulatory offences’ and into the domain of (morally stigmatized) criminal conduct; third, the effects wrought by a greater emphasis upon the enforcement of copyright law, manifest both in the increased allocation of resources by criminal justice agencies to combating ‘piracy’, and in the entry of private actors into its policing; and fourth, the methodologically questionable processes by which ‘piracy’ is quantified, processes that depend crucially upon those



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very actors who have the greatest interest in maximizing measures of the problem.

The strengthening and internationalization of copyright law At one level, it may seem entirely obvious to point out that ‘crime’ is the contingent product of (historically and socially variable) legal regimes, such that the legal prohibition of a class of conduct is, in the first instance, the ‘origin’ of crime (Lacey, 2002: 266–7). Hence, a consideration of law cannot be excluded from the question of crime causation. However, this very obviousness is often overlooked in discussions of ‘the crime problem’, never more so than with attempts to generate longitudinal measures of crime trends (Macguire et al., 1997). All claims about the rise (or fall) of crime rates are subject to the proviso that such changes can be brought about by shifting legal boundaries, and not simply through an increase (or decrease) in the social prevalence of a particular pattern of behaviour. With respect to the question of media ‘piracy’, I suggest that its apparently meteoric rise cannot be considered apart from the recent transformation of IP law that has served to bring a range of heretofore permitted copying practices within the scope of legal proscription and sanction. As already noted, IP law has undergone far-reaching changes over recent decades. While we cannot consider all such changes here in detail, we can nevertheless note some important instances so as to glean their significance for the rise of film ‘piracy’. Such changes can be considered at national, regional and international levels (although, as we shall see, changes in national law can themselves generate far-reaching international consequences). One of the landmark pieces of national legislation in this regard has been the 1984 amendment of the US Trade Act. This legislation linked the international protection of US copyright with American bilateral trade relations. It made provision for the now infamous ‘Special 301’ process, which enables the US administration to initiate trade sanctions against countries deemed to be providing insufficient legal protection to US copyright holders in their own territories. The Act institutionalized a process wherein the office of the United States Trade Representative (USTR) is charged with monitoring levels of IP violations in foreign territories (e.g. levels of media and software ‘piracy’, patent violations, etc.), and with producing a ‘watch list’ in which ‘problem’ countries are identified. ‘Problem’ countries are issued warnings to curb levels of ‘piracy’. If the response is deemed insufficiently vigorous, countries are elevated to ‘priority status’ – what Peter Drahos calls ‘trade’s death row’ (Drahos with Braithwaite, 2002: 90) – opening the way for a range of trade-related sanctions. Between 1984 and 2002, the US initiated the


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‘Special 301’ process against no less than 44 countries, mostly in the developing world (Drahos, 2001: 50–51). Equally important has been the TRIPS Agreement, finalized under the aegis of the WTO in 1994. TRIPS is binding upon all WTO member countries, obliging them to uphold a set of IP standards that gives maximal protection to rights holders, primarily the pharmaceutical, media, publishing and software industries of the major IP exporting nations (the US, EU and Japan) (see Drahos with Braithwaite, 2002; also Leesti and Pengelly, 2001 and Thorpe, 2001 on the impact of TRIPS upon developing countries). In addition to the WTO’s own dispute resolution mechanisms, the US has made enthusiastic use of ‘Special 301’ to ‘encourage’ other countries to meet their obligations under TRIPS (USTR, 2000). This legislation has had profound effects upon copyright regimes across numerous countries, with those ‘watch-listed’ being effectively coerced into introducing US-style copyright laws in order to avoid damaging trade retaliation. Consequently, many countries which previously had no or minimal restrictions on the reproduction and distribution of US copyrighted material have acquired rigorous IP laws which, at a sweep, have brought the behaviour of numerous of their own citizens under the aegis of property theft. This instance shows how the supposed global growth of ‘piracy’ can be attributed in part to a shifting of the legal ‘goal posts’, rather than simply to any dramatic increase in practices of copying.10

The criminalization of ‘piracy’ In the past, copyright violations have been largely tackled through a range of civil remedies available to copyright holders – such as injunctions, ‘delivery up’ or destruction of infringing articles, and the payment of damages (Bently and Sherman, 2001: 1008–23). Even where the law made provision for criminal prosecution of IP violations, there tended to be few such actions – for example, between 1970 and 1980 there were fewer than 20 prosecutions for copyright offences in the UK (Sodipo, 1997: 228). This may be attributed to a range of factors, including the relatively low priority accorded to IP crimes by overstretched and under-resourced criminal justice agencies; the public concern and political emphasis on more visibly ‘harmful’ offences, such as ‘street crimes’ and violent crime; difficulties in policing and intelligence gathering; and the reluctance of public prosecutors to involve themselves in a notoriously complex and specialized domain of law. However, recent years have seen moves to criminalize copyright violations, bringing them increasingly under the sway of criminal sanctions. This has taken two main forms. First, there has been increased willingness to use existing criminal sanctions against ‘pirates’, encouraged both by greater political sensitivity



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to IP rights and their economic importance, and by concerted application of pressure through lobbying by the copyright industry. One key means in achieving this has been the formation of industry organizations (such as the AACP and FACT in the UK) which conduct investigations and gather information on ‘piracy’ activities, and lay complaints before public prosecuting authorities (Sodipo, 1997: 229; Bently and Sherman, 2001: 1030–31). Recent years have seen a number of high-profile ‘piracy’ cases in which such procedures have led to criminal convictions carrying substantial custodial sentences – for example, in 2002 a FACT investigation led to a four-year prison sentence for the convicted ‘pirate’ (Carugati, 2003). The overall number of criminal prosecutions for copyright violations has also increased massively – in 2000, there were over 500 such cases in the area of music (CD) counterfeiting alone (Home Office, 2002: 2). On a second level, recent years have seen the incorporation of additional provisions for criminal sanctions into both international treaties and national laws. At the national level, we can note for example Section 107 of the Copyright, Designs and Patents Act (1988) in the UK, which places local administrative authorities (such as Trading Standards departments) under a duty to enforce criminal copyright provisions and significantly strengthens the penalties available in comparison to the previously existing Copyright Act of 1956 (Dworkin and Taylor, 1989: 121–2; Bently and Sherman, 2001: 1031). In the US, the No Electronic Theft Act (1988) makes provision for up to three years’ imprisonment for convicted ‘pirates’; it also extends the applicability of sanctions beyond those engaging in ‘piracy’ for commercial gain, to include, for example, the notfor-profit digital trading engaged in by ‘file-sharers’ (Drahos with Braithwaite, 2002: 185). On the international level, Article 61 of the TRIPS agreement establishes a mandatory requirement for signatories to make criminal provisions against ‘commercial’ copyright violations. Hence the extensions of available criminal sanctions and the greater willingness to pursue them, taken together, have significantly reconfigured ‘piracy’, rendering it both more visible and more grave. However, we must note here an additional third level at which ‘piracy’ has come to be criminalized. To label a practice as ‘criminal’ carries with it a symbolic weight and charge, equating it with socially sanctioned perceptions of moral violation and wrongdoing (Lacey, 2002: 268). The recasting of ‘piracy’ in a language of criminal violation amounts therefore to its ‘moralization’, an attempt to create a normative consensus that it offends against the agreed standards of decent and acceptable behaviour. This has been necessary precisely because copyright violations have been rendered socially acceptable by their ubiquity and the widespread perception that they are not genuinely ‘harmful’ in the manner of ‘real crimes’ (such as theft of personal property, homicide, rape, assault and so on). I have already noted the rhetorical associations called upon by recourse to


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the language of ‘piracy’. In addition, it has now become commonplace to find in the discourse of copyright industries, trade bodies, governments and criminal justice agencies the claim that media ‘piracy’ is linked with ‘organized crime’ and ‘terrorism’ (TraCCC, 2001; AACP, 2002). As a number of criminologists have noted, the term ‘organized crime’ is ill defined, but carries ready associations in the public mind with violent and ruthless criminal groups such as the ‘Mafia’ (Levi, 1998; Woodiwiss, 2000). Hence, forging an association between ‘piracy’ and ‘organized crime’ helps to create a moral and emotive case against the former by drawing upon commonplace perceptions of the latter. This strategy is clearly attested in a recent report by the AACP, which begins by noting that: . . . there continues to be reluctance among police, customs and trading standards services . . . to regard intellectual property fraud as a priority, often being unaware of its association with organized crime . . . (2002: 2)

‘Raising awareness’ thus becomes integral to the copyright industry’s attempts to secure support for its agenda. Similar links have been asserted more recently between ‘counterfeiting’, ‘piracy’ and ‘terrorist’ groups. The FBI have explored claims that the 1993 bombing of the World Trade Center in New York was financed by sales of counterfeit goods (Paradise, 1999: 22); UK authorities have claimed that the IRA has financed its paramilitary activities through film piracy (Paradise, 1999: 22; AACP, 2002: 14); drawing upon the post-9/11 momentum in the ‘war on terror’, the Anti-Counterfeiting Group (ACG) has pushed claims that Al-Qaida has been financing itself through engaging in commercial counterfeiting (ACG, 2002: 2). Whatever the truth of such claims, they must be seen as powerful rhetorical tools that are used in order to create a public (and political) perception that there is a serious and dangerous criminal threat posed by ‘piracy’, which both justifies a prioritization of IP theft by criminal justice agencies and legitimates calls for further strengthening legal protections and criminal sanctions. Policing, enforcement and the ‘production’ of piracy I have already noted the recent increase in policing and enforcement activity, in which industry organizations are playing a leading role. It is worth noting here the proliferation of industry-financed ‘anti-piracy’ organizations whose raison d’etre combines research, intelligence gathering, policing, ‘education’ and lobbying activities. The past two decades has seen the creation of the Counterfeiting Intelligence Bureau, the International Intellectual Property Alliance, the International AntiCounterfeiting Coalition, the Alliance Against Counterfeiting and Piracy, the Coalition for Intellectual Property Rights, the Artists Coalition Against Piracy, the aforementioned ACG and FACT, as well as numerous existing



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trade organizations that have established specialist groups and initiatives to combat film ‘piracy’ (such as the MPA/MPAA). Such organizations purport to ‘lift the burden of investigation from law enforcement agencies’ (AACP, 2002: 2) by engaging in a range of increasingly intensive policing activities. Where public agencies have been reluctant to invest time and resources in tackling IP violations, industrial and commercial interests have ‘filled the void’. In addition to intelligence gathering and ‘undercover operations’, they have attempted to bring IP crime into the criminal justice mainstream through, for example, the appointment of specialist ‘liaison’ personnel to ‘assist’ and ‘advise’ responsible agencies (police, customs, trading standards) in the detection and prosecution of ‘copyright theft’. Governments have themselves responded to concerted pressure from these groups by establishing specialist units within criminal justice agencies to address IP violations (for example, the UK now has the National High-tech Crime Unit and the National Technical assistance Centre [NTAC], and the US has the FBI’s Internet Fraud Complaint Centre [IFCC]; Interpol has established an Intellectual Property Crimes Unit (2002), and there are concerted efforts at the EU level to strengthen EUROPOL’s powers of enforcement in the area of IP). One effect of this intensified public-private law enforcement effort has been to rapidly increase the number of copyright violations detected; and, despite the occasional airing of methodological reservations, it is common practice to extrapolate ‘piracy’ statistics from detection and seizure rates (CEBR, 2002: 25, 36–7), thereby reinforcing the impression that there has been a recent, massive increase in overall ‘piracy’ rates. Contrariwise, it is possible to suggest that the apparent increase is more reasonably attributable to the intensified policing of copyright violations – in criminological parlance, it may be that a greater proportion of the ‘invisible crime’ (Davies et al., 1999) of ‘copyright theft’ is now being uncovered, rather than there simply having been a recent explosion in overall levels of ‘piracy’ activity.

Sources, statistical inferences, and vested interests in the construction of ‘piracy’ figures The point above leads us to further question the reliability of statistical evidence supporting the ‘piracy epidemic’ thesis. The figures for film ‘piracy’ that currently circulate within commercial-industrial-mediacriminal justice discourses are typically the product of a set of inferences and calculative techniques that are, to put it mildly, open to methodological challenge. I have already noted above the problem of extrapolation from detection, seizure and conviction counts in estimating overall ‘piracy’ levels and trends. Further problems arise with other attempts to quantify the scope and scale of the problem. For example, the allocation of


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monetary measures to losses from ‘piracy’ often take the ‘legitimate product price’ as their baseline – so, for example, in calculating the MPAA’s figures for losses to film ‘piracy’, the assumption is that each unauthorized copy deprives the copyright holder of the sale of one unit of the legitimate product – e.g. the loss of revenue from a ticket to see the film in a movie theatre, or the purchase of an authorized VCR or DVD copy of the film. As Drahos (Drahos with Braithwaite, 2002: 93–4, 97) points out, this is based upon the erroneous assumption that every consumer of an unauthorized copy would have chosen, had the ‘pirate’ not been available, to pay the price asked for the authorized exhibition or distribution of that same film. Quite simply, it may well be that while consumers are prepared to pay the lower prices demanded for ‘pirate’ versions, they are not prepared to pay the higher prices attached to the legitimate offering – there is no inevitability that the consumers of the ‘pirate’ would otherwise have paid to see the film in a theatre. A more general problem arises from the official reliance on partial industry sources for ‘piracy’ figures. Industry bodies have a vested interest in maximizing the figures (whether in the form of the number of copies, lost revenues or profits, lost jobs or lost taxation for the public purse). The larger the figures are, the greater the pressure that can be brought to bear on legislators and enforcement agencies in the drive for more rigorous action (the USTR, for example, derives its figures for film ‘piracy’ directly from those provided by the MPAA, with little in the way of independent corroboration). As the CEBR (2002: 29) succinctly puts it, there is ‘nothing preventing the companies from overstating their losses through counterfeiting for lobbying purposes’. Yet these industry ‘guesstimates’ usually become reified into incontrovertible facts, and provide the basis for further discussion and action on the ‘piracy problem’. From the industry’s viewpoint, the inflation of the figures is the starting point for a ‘virtuous circle’ – high figures put pressure on legislators to criminalize, and on enforcement agencies to police more rigorously; the tightening of copyright laws produces more ‘copyright theft’ as previously legal or tolerated uses are prohibited, and the more intensive policing of ‘piracy’ results in more seizures; these in turn produce new estimates suggesting that the ‘epidemic’ continues to grow unabated; which then legitimates industry calls for even more vigorous action. What the ‘true’ underlying levels and trends in ‘piracy’ might be, however, remain inevitably obscured behind this process of socio-statistical construction.

Conclusion In this article I have attempted to analyse the currently prevalent discourse that depicts film ‘piracy’ as a ‘crime wave’ of ever growing proportions.



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Along with a descriptive mapping of the ‘crime figures’, I have explicated two distinctive modes of sociological explanation that can be brought to bear on these figures. The first mode, proceeding in a largely ‘realist’ manner, sees the ‘rise of piracy’ as the outcome of a range of social, economic, political and technological changes that are radically reconfiguring the global political and cultural coordinates within which the consumption of media goods takes place. From this point of view, globalization, socio-economic ‘development’ and innovation in information technology help to establish the conditions for expanded production and consumption of ‘pirate’ audio-visual goods. However, the second mode, juxtaposed to the first, proceeds in a ‘social constructionist’ mode to view the emergence of the ‘piracy epidemic’ as the product of shifting legal regimes, lobbying activities, rhetorical manoeuvres, criminal justice agendas, and ‘interested’ or ‘partial’ processes of statistical inference. In conclusion, I would suggest that while neither mode offers an exhaustively satisfactory explanation, it is the latter that offers potential for a more critical understanding of the ‘piracy debate’. This critical edge derives from its ability to draw attention to the impact of dominant economic and political interests upon the ways in which cultural goods can be legitimately enjoyed. The expansion of proprietary copyrights, and the criminalization of their violation, is part of a larger ‘game’ in which struggles to dominate the uses of information are being played out within the new ‘knowledge economy’. Rather than taking industry or government claims about film ‘piracy’ (its scope, scale, location, perpetrators, costs or impact) at face value, we would do well to subject them to a critical scrutiny that asks in whose interests such claims ultimately work.

Notes 1. Quoted in Johnson (2002). 2. ‘Movie’ or ‘film’ is used here to denote ‘motion pictures’, defined as ‘cinematographic works . . . whether silent or with a sound track, and irrespective of their purpose . . . their genre . . . length . . . method employed . . . or technical process used’ (WIPO, 2001: 43). 3. The term ‘piracy’ appears here in parenthesis throughout because, as numerous commentators acknowledge, there is no agreed single definition of the kinds of practices that fall under the label (Ravillard, 1999: 60; Hetzer, 2002: 304). Moreover, as Peter Drahos astutely observes, the term ought to be viewed not simply as a piece of legal terminology, but also as a rhetorical device which, by evoking associations with bloodthirsty seafaring brigands, is used to moralize copyright infringement as a ‘serious crime’ (Drahos with Braithwaite, 2002: 24–5). 4. For a detailed account of both the development and current parameters of IP law, see Bently and Sherman (2001) and Letterman (2001). 5. A distinction is sometimes made between ‘piracy’ and ‘counterfeiting’, where the latter refers products infringing copyright that also replicate the original product


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in terms of appearance, packaging, graphics, etc., and can thus be passed off as authorized copies (see BPI, 2002: 4; Kounoupias, 2003: 3–4). Hence, while unauthorized copies of copyrighted material may or may not be ‘counterfeit’ (replicate in appearance the legitimate product) they are all ‘pirated’ in that they violate copyright. In reality, the two categories are often combined or used in conjunction to cover the range of copyright thefts (see, for example, the European Commission Green Paper on counterfeiting and piracy – 2 COM(98)569 Final [1998]). 6. For a typology of consumers of counterfeit goods, and the role played by economic motivations, see Tom et al. (1999). 7. For example, in May 2002, FACT reported the arrest of an employee of a large multinational credit card company in the north-west of England, who was selling pirate DVDs to his 400+ colleagues in the workplace (FACT, 2002: 3). 8. At the time of writing, a PC complete with DVD writer, scanner, printer and media software (in short, everything a would-be home pirate needs) is available in the UK for under £1000 ($1600) 9. A five-minute internet search was sufficient to locate 15 such sites. 10. International strengthening of IP standards has also been wrought by treaties such as the WIPO Copyright Treaty (1996), and by a range of EU agreements, directives and regulations (Bently and Sherman, 2001: 8–20). On the national level, changes to US copyright law have incrementally increased rights holders’ control over copying, distribution and use of IP. This has been especially pronounced in relation to digitized works, through the changes introduced by the No Electronic Theft Act (1988), the Digital Millennium Copyright Act (1998), the Digital Theft and Copyright Damages Improvement Act (1999), to name just a few (see Litman, 2000; Vaidhyanathan, 2003: 159–84, 243–8).

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Majid Yar is lecturer in criminology at the University of Kent, UK. His research interests include criminological and social theory, intellectual property, crime and the internet, and crime and media. His work across these areas has appeared in journals such as Theoretical Criminology, British Journal of Criminology, Critical Criminology, Theory, Culture &


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Society, Economy & Society, Surveillance & Society and History of the Human Sciences. He is currently working on a book entitled Cybercrime and Society, to be published by Sage in 2006. Address: School of Social Policy, Sociology and Social Research, University of Kent, Canterbury, Kent CT2 7NZ. [email: [email protected]]
