Insights on Film Piracy

Lawrence Liang

P

aromita Vohra’s film Partners in
Crime which examines pirate
media circulation in India begins
with a delightful interview with a student who is an enthusiastic collector of
pirated films. Enquiring whether people
value things which they get for free, the
student replies that he has not got these
for free since he has paid for the internet, and more importantly he really
understands their value since he has
spent countless hours in slowly building,
nurturing and sharing his collection
with a trusted network. In another segment in the film, a film pirate claims that
he is not worried about the law because
“we are all in this together”. These short
interviews provide us with a remarkable
insight into the affective underbelly of
mainstream piracy discourse contrasting the usual emphasis on loss of value
with a different idea of value, foregrounding passion over abstract political economy claims and rescuing piracy
from its clutches within the legal framework to open out more relevant questions of technology, networks and illicit
circulation. If piracy is a legal problem,
it is one primarily for the media industry
and their lawyers, but for the rest of us it
is an ordinary fact of life albeit one in
which we rarely get interesting theoretical perspectives.
Shifting Power
Arul George Scaria’s book Piracy in
the Indian Film Industry: Copyright
and Cultural Consonance is therefore a
welcome contribution to an area marked
more by hyperbole than serious scholarship. If I had to choose one word to
describe the book, it would be “balance”
which is not a bad aspiration for a book
on copyright given that the initial
normative impulse of copyright law
was to create a balance between providing incentives to authors on the one
hand and ensuring that knowledge
Economic & Political Weekly

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NOVEMBER 22, 2014

book reviewS
Piracy in the Indian Film Industry: Copyright
and Cultural Consonance edited by Arul George
Scaria (New Delhi: Cambridge University Press), 2014;
pp xiv + 324, Rs 795.

circulated freely in the public domain on
the other.
The story of the development of copyright
(competently summarised in Chapter 3)
has been the story of the shift in balance
gradually in favour of owners of copyright.
Scaria attains this balance in his account of
piracy in the film industry by refusing to
accept the self-accounts of piracy provided
by the film industry and the embedded
research by consultants like Ernst and
Young on its destructive capacity.
He instead recognises that the field of
media piracy like any other is a contested
site of knowledge production in which
claims and counterclaims operate within a
discursive battlefield. This is evidenced in
his detailed analysis of the different studies
on intellectual property piracy that have
emerged in the recent years. Questioning
the faulty methodological assumptions in
each of the studies (for instance the assumption that every pirated film equals a
lost sale) he begins his account by reframing how we see the problem. If the demand
for stricter penal provisions and greater
enforcement have been fuelled by the shrill,
hyperbolic claims of the industry, Scaria’s
work allows us to objectively consider
whether the “problem” of piracy is really
one that has been objectively accounted for.
This is not to say that Scaria is a defender of film piracy (a tribe to which I would
count myself as a member) and he recognises that in an industry which requires a
lot of capital investment the question of
returns on investment is a genuine one,
but his critique of the industry is aimed at
questioning whether there is really a crisis
in the industry, and if it is a crisis whether
piracy is its sole cause.
vol xlIX no 47

Unlike most studies on piracy which
have at their foundation a universalist
assumption of the centrality of property,
Scaria locates his examination of the
piracy discourse within different cultural
contexts to examine why accounts of loss
and destruction do not seem to work as a
universal narrative. Citing examples of
studies on perceptions of piracy in China,
for instance, he concludes that the
“unique political culture and cultural
attitude of the people influenced the
evolution and features of its present IP
laws and enforcement rates”. In an interesting segment which demonstrates
how difficult it is to impose moral assumptions that we have inherited from
the language of traditional tangible
property into the domain of the intangibles, Scaria observes that based on his
survey, a significantly large number of
people (approximately 66% of the respondents) seemed to think it was immoral to pirate films, and yet this seems
to go against the fact that a large
number of people continue to download
or to pirate films. While a conservative
reading would see this as a problem or
morality or hypocrisy, might it not be
the case that this is a problem of business models which are so clearly at
loggerheads with technological change
and ease of access.
Fruitful Contradictions
Presenting the question in the form of
whether one thinks it is immoral to
pirate films appeals less to the question
of a specific moral problem than it does
to a general sense of morality, and if one
were to think of the average consumer
as a moral being (sharing after all is another form of morality) then the correction might be in aligning business practices with common sense morality rather
than the other way around. While Scaria
does not choose to arrive at any conclusion (and rightfully so) based on his survey about the definitive numbers on film
piracy, his data provides us with a minefield of fruitful contradictions which
mirror the heterotopic world of media
piracy rather than flattening them under
a single neat rubric.
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BOOK REVIEW

While we all intuitively know that not
every pirated film necessarily results in
a lost legal sale, Scaria rigorously examines this truism, concluding that it is
more a problem of pricing than a legal
problem. In our previous work on film
piracy in India we had examined the
case of Moser Baer, a company that
went from manufacturing blank DVDs to
becoming a film distributor and eventually a film producer and our study found
that the most effective way of dealing
with the question of film piracy was the
presence of a robust local market with
many players competing through price
till a point at which the market imbalance created by media monopolies is
corrected with the large players lowering their prices (Karaganis 2011). By
choosing to foreground the question of
price, Scaria’s prescriptive conclusions
also display a balanced perspective contending that it may be more fruitful to
link the question of legal reform to inevitable externalities including technological change, social practice and realistic
solutions based on an acknowledgement
that the already overburdened Indian
legal system may not consider illicit
media as its highest priority.
One of the shortcomings of the book,
however, is that the conclusions restrict
themselves within the framework of law
reform. Given that the rest of the study
effectively demonstrates the limitations
of a strictly legal response to the question of piracy, it would have been interesting to see proposals for newer business models that work with the strengths
of digital technology and the ease of
reproduction rather than treating piracy
as the greatest enemy of creativity.
Historical Understanding
While agreeing broadly with the tone of
the book, I would have liked it to have
been more historically situated. Film piracy is often pitted against the film industry as though it were an ahistorical
evil that comes from outside. Scholarly
work on the history of film piracy has
demonstrated repeatedly that piracy has
always been an inevitable part of the development of the film industry. Jane
Gaines in her pioneering work (2006) on
film copyright for instance locates the
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pirating of the iconic film Arroseur et arrosé (The Waterer Watered). She demonstrates how despite copying being
central to the practice of the industry between 1895 and 1909, while there were
rhetorical complaints about copying going out of control, all the major players
in both the US and Europe were involved
in a variety of copying practices in an effort to profit quickly. The history of early
competition in this period was marked
by a frantic race by the companies to
replicate each other. Copying was a calculated strategy for maintaining market
control as well as a means for getting a
start in the new industrial field.
Thus, while Scaria’s book engages
with the economic debates on film piracy,
the book would have benefited from the
work done by film historians on the immanent history of film piracy as something which is a part of the organisational form of the industry. Elsewhere I have
suggested that rather than looking at the
neat spaces created by the opposition
bet ween the “legal” and the “illegal”, it
might be more fruitful to consider the
spaces in which piracy plays itself out
the specific histories of the nooks and
crannies that render this space an illegal
one; along with accumulated histories of
regulation, tactics and negotiations that
render this topography intelligible.
Towards this end it would be interesting to stage a conversation between
Scaria’s work on film piracy alongside
the contribution of scholars like Nitin

Govil and Eric Hoyt (2014) and Peter
Decherney (2012). Govil’s excellent work
on the history of transnational film piracy and enforcement examines the pirating of Douglas Fairbank’s Thief of Baghdad in India and suggests that anxieties
about film piracy are not merely restricted to the digital moment or even to technological formats which lend themselves
to easy reproductions such as orient
files, DVDs or even video cassettes. His
work demonstrates how piracy was in
fact the most effective mode through
which outlier markets were created.
In a curious coincidence which mirrors
the rise of Moser Baer in the 2000s,
Govil narrates the story of an M Baer, a
film distributor who rented Hollywood
films “under a variety of subterfuges and
‘duped’ them”. Duping was the industry’s term for taking a positive print and
using it to create a film negative, which,
in turn, could be used to create more
positive prints that were inferior in quality but still playable. Govil shows us that
these inferior duped prints often came
from France, Portugal, Spain or Italy as
evidenced by their inter-titles, and suggests that while studios were effective at
controlling the circulation of prints in
the US and UK, the further away you
travelled from there, even simply over to
continental Europe, the weaker the controls became. That the two Baer moments are connected by more than their
lexical affinities is clear, and if we are to
locate the parallel of this story in the

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vol xlIX no 47

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contemporary period, we would have to
examine the material conditions under
which pirated films circulate (whether
as disembodied data files across
the internet or as low-cost DVDs with
Chinese subtitles) in order to move away
from the spectral terror of piracy which
informs many of the policy debates.
Starting Point for Conversations
Scaria is coming into the debate primarily from the perspective of law and
policy reform, and his work is very
insightful within the framework of a
reasonable system, but the absence of a
conversation between these two traditions is telling, both of a disciplinary
division of labour that exists, but also of
the incommensurability of the language

Economic & Political Weekly

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NOVEMBER 22, 2014

of cultural theory and policy reform. An
interesting challenge might be to think
of this as a starting point about how we
can bridge conversations between scholars invested in cultural and technological histories of cinema, for whom the
story of piracy is not a story of law, but of
cinema itself with those who work on
the political economy of film distribution. Thus far it was really not possible
to engage with any of the research done
on film piracy because it could never discard its ideological project of casting
piracy in terms of pure evil. But with
contributions such as Scaria’s one can
begin to imagine a much overdue and
productive scholarly conversation across
film history, media studies and economics which begins to produce an

vol xlIX no 47

account of piracy as an object of knowledge rather than merely media rhetoric.
Lawrence Liang (lawrence@altlawforum.org)
is associated with the Alternative Law Forum,
Bangalore.

References
Gaines, J M (2006): Early Cinema’s Heyday of Copying:
The Too Many Copies of l’arroseur arrosé (The
Waterer Watered), Cultural Studies, 20(2), 227-44.
Govil, Nitin and Eric Hoyt (2014): “Thieves of Bombay: United Artists, Colonial Copyright and
Film Piracy in the 1920s”, BioScope: South
Asian Screen Studies, 2014, 5: 5.
Karaganis, Joe, ed. (2011): Media Piracy in Emerging Economies (New York: SSRC).
Liang, Lawrence (nd): “Beyond Representation:
The Figure of the Pirate” in G Krikorian and
A Kapczynski (ed.), Access to Knowledge in the
Age of Intellectual Property (New York: Zone
Books), pp 353-76.
Peter Decherney (2012): Hollywood’s Copyright
Wars: From Edison to the Internet, Columbia
University Press.

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