Bootleggers: Dark side of the Force?

At least, that's the theory that has led companies such as Lucasfilm Ltd., producer of the hugely hyped upcoming film "Star Wars: Episode I -- The Phantom Menace," to work furiously to eliminate pirated online versions of their work.

Lucasfilm this week reportedly put hundreds of Internet service providers on notice that it won't tolerate the online proliferation of bootlegged audio and video files from the soon-to-be-released movie. But the company may soon find out there's no simple way to put that genie back in the bottle, according to some experts.

Ironically, Web search engines have made it easier for music and film companies to discover that their works are being pirated, but the Internet has also made it much harder to control the works, said Liam B. Lavery, an intellectual-property attorney with Preston Gates & Ellis in Seattle.

"Once there is a leak, it spreads across the world really quickly," Lavery said.

Needle in a haystack
Lavery added that while it's somewhat simple to discover which Internet service provider network the offending material resides on, it's next to impossible to find the specific person who pilfered the material. And under last year's Digital Millennium Copyright Act, ISPs can't be held liable for copyright infringement unless it's proven that they know exactly where the pirated works are located on their networks and do nothing to eliminate them.

In short, according to Lavery and other attorneys, this means that suing over online copyright violations is tough to do. But it's not impossible, and some intellectual-property lawyers believe more litigation is in the future.

"I think there's every reasonable chance you are going to see more lawsuits," said Andy Norwood, head of the intellectual-property practice at the Nashville, Tenn., law firm Waller Lansden Dortch & Davis.

"We'll see a few significant, high-profile cases that will get the message out and set the standards for what will and won't be tolerated," Norwood said.

Norwood and Lavery are quick to point out that the Web really doesn't add any new wrinkles to the U.S. copyright statute, part of which dates from 1789. "The copyright holder still has the exclusive right to make a copy," regardless of whether the copying consists of making a videotape, a photocopy or a digital copy, Norwood said.

But since VCR owners for years have copied television shows and movies and remained unmolested by the entertainment industry, consumers can be forgiven for wondering why, for example, the music industry has made such a fuss over people downloading audio files on MP3 players.

'Fair use'
The answer lies in the copyright statute's "fair use" clause, which allows for duplication of certain works for home or classroom use. It's still unclear how to interpret the fair use clause in light of MP3, which allows users to record songs for their personal use, like with audio tapes, but which can also be used by sophisticated music pirates.

In yet another irony, the same technology that's made it possible for people to quickly and easily download music files may eventually help solve the copyright infringement problem, said Solveig Singleton, director of information policy at The Cato Institute think tank.

"People won't be as likely to try and circumvent the digital controls on copyrighted CDs if it's much cheaper to buy them online" than in a music store, Singleton said.

Other scenarios have emerged that fit no clear legal pattern.

Fair search?
When Warner Bros. Online discovered that the NBC-owned portal site Snap.com had added a section about the Rosie O'Donnell show (a WB property) it didn't raise any eyebrows at first. Then WB officials noticed that the "Rosie O'Donnell" search results brought up automatically in the section included pornography sites featuring the word "Rosie."

"Does a search engine count as 'fair use'?" asked a Warner Bros. Online spokesman, who added "Can NBC sell ads for its own content over our material" or material ostensibly linked to WB-owned property that is in fact a porn site?

At a conference on the convergence of the entertainment and technology industries, held in California last month, Hollywood executives fretted over how to maintain control over their works in the digital age.

The same digital technologies that have ushered in a special effects revolution have taken much of the control away from the artists and producers behind films, director Don Petrie said at the EnterTech show.

Petrie, director of films such as "Mystic Pizza" and "Grumpy Old Men," said he fears not only piracy, but the fact that digital technologies will let people all across the distribution chain actually alter the artistic product.

"As a content creator, I'm scared s---less" about the new questions raised by the technologies, he said. "I know what the airline version of 'Grumpy Old Men' looks like."