torrentfreak is unbelievably self-righteous
Jhannet Sejas, a ninteen year-old moviegoer, recorded a 20 second clip of Transformers on her cell phone to show her younger brother. For this, she was escorted from the theater and charged with misdemeanor piracy. Torrentfreak.com and other sites have leaped at the opportunity to decry this as a miscarriage of justice, that Sejas, burdened with a $71 fine, is “being made an example.”
What unbelievable self-righteousness. I don’t think it takes a J.D. in copyright law to recognize that recording the movie in the theater is illegal. Torrentfreak can scream about freedom of information and evil media conglomerates from here until doomsday, and ordinarily I’d be right with them. The fact of the matter, however, is that Sejas was doing something unambiguously illegal and she got caught. I may have a liberal attitude toward certain aspects of piracy, but I am under no delusions about the fact that the fundamental act of piracy—clandestinely duplicating copyrighted material without permission or consent from the material’s owners—is a crime.
In her defense, Sejas said, “I totally forgot that I was not allowed to do that. I did it without thinking clearly.” Well, too bad. You might have forgotten that the gun was loaded, you might not have been thinking clearly when you played around and pulled the trigger, but the law says it’s still manslaughter. In the case of piracy, the Virginia penal code says nothing about criminal intent or causing financial loss. The act itself is enough.
Torrentfreak goes on to claim that Sejas’s recording “certainly would have fallen under Fair Use.” Really? Let’s play this game for a second. Fair Use law is admittedly ambiguous and open to interpretation. Four factors are considered when determining whether something qualifies as Fair Use:
- Purpose of the use.
- The nature of the copyrighted work.
- The proportion of the work used.
- The effect the use has on the market value of the copyrighted work.
Obviously, the proportion of Transformers that Sejas recorded was insignificant–twenty seconds of a movie that runs nearly two and a half hours. Second, the effect on Transformers’s market value is nil. However, Sejas’s sole purpose in making the recording was to show a portion of a movie that was only available in theaters to someone who had hadn’t paid for it. How is this not the definition of piracy? Torrentfreak can validly claim that Sejas had no intent to profit from the act, but her intent most definitely meets the definition of piracy, not artistic expression or commentary.
As far as “being made an example,” I once again have to disagree. The maximum fine for this misdemeanor, according to Torrentfreak, is $2,500 and one year in prison. Sejas was fined $71. Granted, since Transformers has a running time of 143 minutes and she recorded twenty seconds of it, her fine should mathematically be $5.83, if we’re being punctilious about it. Still, Sejas’s punishment is far from “seriously unbelievable.”
I have my issues with things like DRM lock-in and boneheaded executive decisions. I will not, however, rush to the defense of some teenager who, good intentions aside, committed a crime. Torrentfreak needs to get off its high horse.
While the first factor of the four-pronged Fair Use Test is often referred to as its “soul”, it is by no means the sole (har, har) determinant. Here, you are confusing the issue by limiting your discussion of purpose to use and utility, without allowing for intent to give the situation context.
First, let us recognize the inherent limitations of the medium Sejas chose for duplication. Cell phones have an extremely limited amount of video recording time — certainly not 143 minutes — and unbelievably poor video recording quality. No one with enough intelligence to use the video recording features of a cell phone would make the assumption that they could record a full movie on such a device.
Second, conjecture and supposition are not adequate grounds for charging someone with a crime. If Sejas had actually recorded 15 minutes of the film, instead of 20 seconds, it would be illogical to assume she was trying to record only a small clip.
Third, even if we ignore intent, any work that cuts out over 99% of its inspiration must be at least considered transformative and not merely derivative.
We may reasonably infer, from those three reasons, that Sejas’ intent was not to duplicate the film, but instead to record a clip of it. And what are clips used for? Sampling, criticism, editorializing (among other things.) All of these are historically protected purposes. It does not matter if her audience was one (her brother) or a readership of dozens; the intent is important.
To consider the other criteria for fair use, such a small portion of the copyrighted work (0.2231%, to be precise) is negligible and cannot possibly have an effect on the market for the copyrighted work. One written paragraph full of spoilers in a newspaper or blog would likely do more to dissuade viewers than twenty seconds of action — or more likely in this case, pathetic dialogue.
Of course, I could be completely wrong and she could’ve been recording the very first 20 seconds of the movie. This leaves open the distinct possibility that she was stopped before she could record further, and her intent was indeed to record significant parts of the film so that her brother could watch it without paying. But from the tone of the article, that seems unlikely.
Piracy is robbery or illegal violence at sea. This is alleged copyright infringement, to which fair use would be an affirmative defense. Yes, I know I’m being pedantic.
To answer the question, though, your original statement fits that definition but that sentence is not appropriate in this situation. For all you mention the other “prongs” of the Fair Use Test, you have ignored them in favor of making your point.
Plus, I disagree with your point. :P
Are the torrent sites justified? Yes; this case should not be about copyright infringement, but rather on the merits of ban on recording in theaters. That is an open-and-shut case. But by proclaiming the girl guilty of copyright infringement, it’s pretty obvious they were looking to make an example of her and, probably, use her case to support their personal agenda. So the torrent sites’ protests are pretty damn valid, hypocrisy notwithstanding.