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You Want Enforcement? Here’s Your Enforcement

December 4, 2009 , ,

This week, the Chicago Sun-Times reported that a 22-year old woman was arrested on charges of “criminal use of a motion picture exhibition” when she recorded two segments of the new Twilight movie, totaling four minutes of footage. (Some more details here and here, and Entertainment Weekly has a pretty sane perspective on some of the non-legal issues (i.e., just shut up already during a movie) here.)

The movie theater apparently insisted upon pressing criminal charges, meaning that Samantha Tumpach, who was apparently using the camera to record her sister's birthday celebration at the theater, spend two nights in jail before being released on her own recognizance. This, despite the fact that the various news articles say that footage also includes her family singing “Happy Birthday,” and the shots taken during the screening weren't always of the screen.

Seem Familiar?

This is eye-rollingly familiar ground. State laws, passed by vigorous lobbying by the motion picture association, set in place standards of copyright enforcement that are completely at odds with common sense. Take a look at the statute:

(a) Any person, where a motion picture is being exhibited, who knowingly operates an audiovisual recording function of a device without the consent of the owner or lessee of that exhibition facility and of the licensor of the motion picture being exhibited is guilty of criminal use of a motion picture exhibition facility.
(b) Sentence. Criminal use of a motion picture exhibition facility is a Class 4 felony

Just using a camera in a theater is enough to make you guilty of a crime. So under the apparent letter of this law, Tumbach is technically guilty, even if she had no intention of pirating the movie or in any way infringing on the rights of the movie studio or the theater. In fact, even if Tumbach's recording is perfectly legal under federal copyright law (clips that short, and for the purposes of documenting the party, are almost certainly fair use), she can still be guilty of violating this state law, which is worded specifically to skirt around the fact that copyright is essentially a federal matter.

Why “Enforcement” Can Still be Problematic

This is exactly the sort of idiocy that we worry about when “enforcement” becomes such a buzzword, and when we see so much forum-shifting. The years-old battles surrounding the MPAA lobbying in state legislatures for exactly this sort of ham-fisted, ignorant law are having repercussions even today. The forum-shifting and enforcement focus present in ACTA have much the same scent.

Note that since copyright is a federal matter, this Illinois law doesn't alter the rights and limitations of copyright. It just doesn't have that power. And yet someone serves jail time and the possibility of a prison sentence because of these laws. ACTA proponents constantly say that it won't alter copyright law (though at least some Europeans think it might alter their laws). The PRO-IP Act and other enforcement enhancements were sold under the idea that they didn't alter anything but the ways in which existing principles were applied. Yet even without a direct change in the federal statutes, changing enforcement policy can have a big effect. What if the theater owner didn't press charges? What if the prosecutors chose not to proceed with the case, given its dubious value?

What if the statute gave them the flexibility to exercise their discretion, or account for all the ways that recording movies can be perfectly legal under copyright law?

Here, as in so many cases, the practice of enforcement is everything in terms of what these laws and agreements, drafted in chambers and conference rooms in DC, Geneva, Seoul, and Springfield mean to you and me. And these real consequences are exactly why the fine details of these texts matter. The negative consequences of poorly drafted language are often unintended, but in this case, no one can claim that they were unforeseen. Digital rights advocates and public interest groups were warning about such things when these laws were being pushed back then. We're warning policymakers and the public about the same sort of threats now. Let's hope that we can learn our lessons before more ludicrous policies get on the books.