Free Movies? Not So Fast--That's Stealing. So What Are We Going to Do About It?

How do we deal with a growing criminal class?

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By Robert Schlesinger, Thomas Jefferson Street blog

Interesting piece in today's New York Times on digital piracy, and specifically how major movie studios are increasingly losing their battle with online thieves. Here's a figure that leapt out at me:

TorrentFreak.com, a Web site based in Germany that tracks which shows are most downloaded, estimates that each episode of "Heroes," a series on NBC, is downloaded five million times, representing a substantial loss for the network. (On TV, "Heroes" averages 10 million American viewers each week).

Half again as many people watched "Heroes" illegally on their computers as watched it with the ads on television? That's a startling number in and of itself and also for what it tells us about the casual attitude that has developed, presumably among younger users, about theft.

Hollywood may at last be having its Napster moment—struggling against the video version of the digital looting that capsized the music business. Media companies say that piracy—some prefer to call it "digital theft" to emphasize the criminal nature of the act—is an increasingly mainstream pursuit. At the same time, DVD sales, a huge source of revenue for film studios, are sagging. In 2008, DVD shipments dropped to their lowest levels in five years. Executives worry that the economic downturn will persuade more users to watch stolen shows and movies.

I don't think that one should understate the fact that this is increasingly an issue of movies. One gets television for "free" in the sense that when you tune in to "Heroes," you don't have to plunk down money. But when you go to the movies you pay for the experience. It seems to me to be a lot easier to rationalize illegally downloading a television show, which you don't "pay" for anyway, than a movie. (For the record: I do neither.)

It called to mind a debate we hosted in our Two Takes serious last month on the broad issue of how vigorously to prosecute online file-sharing. Lawrence Lessig, the distinguished Stanford law professor and a proponent of decriminalizing file-sharing, wrote:

...the single certain consequence from this battle has been one our government is strangely oblivious to: its rendering a generation criminal. A concerted campaign by rights holders, politicians, school administrators, and increasingly parents has convinced kids that their behavior violates the law. But that law breaking continues. We call our kids crooks; after a while, they believe it. And like black marketeers in Soviet Russia, they live life getting comfortable with the idea that what seems "obvious" and "reasonable" to them is a crime. They get used to being criminal.

This fact is deeply corrosive. As with Prohibition, it is profoundly corrupting. And over time, it will only weaken our kids' respect for the law.

I'm honestly not sure what the answer is here. Lessig has a strong point, and one that is demonstrated by today's Times piece. But lines must be drawn and we need to find the right balance—the answer isn't simply to say "anything goes" and hope for the best. Down that road lies no content at all. (No, check that; down that road lies amateur content only: Without Hollywood, we're left with YouTube.)

The "Napster" analogy is probably correct. The musical file-sharing issue was (I think) largely mitigated when iTunes created an affordable venue for legally downloading music, in some sense obviating that part of the debate. What's the movie equivalent? Beats me—hopefully smarter minds will be able to figure it out.

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