Film theft in the UK - Future of Copyright

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charges in a similar DeCSS case brought by the
MPA on behalf of the main Hollywood studios.
The charges filed against Johansen were
brought under the Norwegian criminal code
section 145.2, which outlaws bypassing
technological restrictions to access data that
one is not entitled to access. Johansen's
prosecution was the first time that this law has
been used to prosecute a person for accessing
his own property. The data theft law had been
used in the past only to prosecute those who
illegally access another's bank or phone records
or data that they have no lawful right to access.
The Oslo court ruled that Johansen (who was
15 years old at the time) had not broken the
law by helping to write the DeCSS code for
Linux systems. This point was contested in the
case, but Norway is not in the EU and therefore
the MPA could not rely on the Copyright
Directive. Even more significantly, the court
rejected the MPA’s claim that it had the right to
control the way in which an individual viewed
a DVD after purchase. The court raised the
spectre of consumer rights once again, stating
that ‘someone who buys a DVD film that has
been legally produced has legal access to the
film.’
Norway’s Economic Crime Unit (ECU) appealed
the loss and Johansen was retried between 2-
11 December 2003, again in Oslo. Since
Johansen's is a test case, it is not unusual for
the case to be retried on an appeal. However,
on 22 December 2003, the appeals court
upheld the acquittal. The ECU chose to drop
plans to appeal further, accepting defeat.
So the position in some European territories, at
least those few outside of the EU, differs
considerably. Had Johansen been tried in the
US, he would have been found in violation of
the Digital Millennium Copyright Act, as he
may have been if Norway had been in the EU
and under the jurisdiction of the Copyright
Directive.
Another issue is a lack of cohesion in film
industry practice as to the importance of
analogue copy protection.
In November 2001, Macrovision CEO Bill
Krepick, in announcing slowing sales, stated
that major studios selectively reduced the
number of DVD titles that have Macrovision
copy protection in an effort to cut costs, noting
that content owners consider copy protection a
discretionary expense.
Indeed, a number of high profile titles have in
recent times been made available without
Macrovision protection. This is largely due to
commercial considerations and individual
negotiations between studios and Macrovision
and probably should not be construed as a lack
of concern over the threat of piracy. However,
the net result is a greater availability of DVDs
with reduced protection.
When it comes to protecting against analogue
recording, the alternative to the proprietary
Macrovision is the (free) CGMS-A standard that
is built into the DVD specification. However, as
discussed in Chapter 4, not all DVD players
implement the CGMS-A system correctly. As a
result some DVD players/recorders – especially
those in PAL territories such as the UK – can
copy DVD movie discs onto blank DVDs.
According to some estimates, 60% of DVD
players are not doing what they should to stop
a DVD recorder copying a DVD movie disc. Low
cost mass-market machines, usually retailing
for £50 or less, are the main culprits.
According to the MPA, its member companies
have begun enforcement activities to ensure
compliance with the CGMS-A specifications
amongst manufacturers. However, even if the
specification were enforced amongst all
manufacturers, this would not address the
millions of machines already installed in homes
that do not implement the technology
correctly.
The Macrovision issue also highlights a degree
of underestimation as to the nature of
analogue piracy. ‘Digital’ is the buzzword,
therefore there is a tendency for anything