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In the early days of digital technology Jack Valenti, the former president of the Motion Pictures Association of America triumphantly announced that “The fury of the future is already upon us. The explosion of channel capacity, the hurling to home by direct satellite, the multiplicity of optical fibre, among other magic are the new centurions of the digital age, they are marching along continents and across geographic boundaries breaking down artificial government barriers, the most powerful audio visual armies ever known”.1 Within a few years however, he would alter his militaristic metaphor and declare the Computer to be the greatest nemesis of the film industry.2 Valenti’s rather quick turn-around seems to be merely symptomatic of the schizoid relationship that cinema has had to technologies of reproduction. Every new technology of reproduction has resulted in euphoric possibilities about the extension of the life of the ‘immaterial commodity’ and the creation of new markets, while at the same time producing an acute crisis about the ease with which films can be pirated, thereby disrupting the planned march of cinema across the globe. This constant flitting between euphoria and crisis produces delirious effects in the world of law. In creating for itself a juridical form, cinema always seems to struggle against its own ephemeral form as well as the thingliness of the medium that carries it. Even as more complicated systems of rights management and licensing in copyright law are created to ensure the smooth flow of films across the word, the ordered flow of cinema is constantly frustrated by technologies that enable the reproduction of a 20 million dollar film on a 20 rupee CD. Just as tobacco, cloth, alcohol and other petty commodities were central to the criminalization of everyday life in the 18th century, it seems that the definition of new forms of criminality in the late 20th and early 21st century belongs to the quotidian world of film consumption and circulation (Linebaugh, 2000). From region control of DVDs to the use of sniffer dogs to track pirated discs, piracy attests to the dynamic and opposing relations between the two major trends that define cinema in our time: the technological and the legal. While the former pushes towards the increasing range of possibilities in filmmaking and distribution, the latter pushes towards greater control and regulation of the media object (Mertha, 2005). In an ongoing case in the Delhi High Court, the eight entertainment majors in the world (Universal, Paramount, 20th Century Fox, Time Warner, etc.) accounting for close to $500 billion are pitted against ‘Lamhe Music Store’, a quintessential pirate DVD store. In Para 28 of the petition, the entertainment majors allege that
The plaint is an instance of the deterritorialized form of the global cultural commodity, while the relief sought relies heavily on reterritorialized enforcement at the national level.3 Piracy seems to occur precisely at the point where deterritorialised forces of capitalism intersect with “the reterritorialised forces of the nation, where the cross bordered flows of information and copyright goods require national laws and enforcement to contain , if not eliminate piracy” (Wang, 2003). This curious relationship between Law and Cinema is not unique to the question of piracy, and cinema has always been the site for the production of a number of legal concepts, which have a career even beyond the specific task of the regulation of cinema. The status of film as a particular form of property seems, however, to have accelerated the unintended career of cinema not just as a desire producing, but also a law-producing machine. The architecture of global intellectual property (IP) laws has been designed keeping the interest of film as property in mind. The TRIPS agreement which harmonized IP laws globally was an agenda firmly driven by Hollywood (Sell, 2003). In the US, the term of copyright was extended specifically to extend the protection afforded to the Disney empire, and in recent times laws related to anti circumvention of technology have been introduced to protect the windowing system of distribution of films. In the Indian context as well, it has been the Eastern Indian Motion Pictures Association which has taken the lead in pushing for copyright reforms. While there has been considerable amount of work done on the political economy of film, there still seems to be a clear-cut division of labour between those who study film and those who study the political economy of film. But is this division tenable, and what sorts of questions do we abandon when we insist on retaining this bifurcation. When we are examining a legal form such as copyright which seeks to create the basis for the circulation of cultural artifacts, is it possible to study it without an attention to the question of cultural form. How do economics dynamics of production [promote] certain cultural forms over others? How does copyright enable cultural ‘texts’ to be recognized as commodities and made sense of in a way that is appropriate to their status as commodities? In other words, Copyright law has a discursive as well as a regulatory dimension, and copyright law as discourse is an “active force in the construction of the very cultural artifacts that, under capitalism, have become invested with the status of commodity” (Barron, 2004). The relationship between copyright and film serves as a fertile site on which we can bring questions of political economy and cultural economy together. The recognition of the importance of political economy in cultural studies is clear. But can it ever be done without a consideration of specific cultural forms? In the case of cinema, the distinction between textuality and policy are not only untenable, but also misleading (Miller, 2006). The semiotics of the images and content analysis are absolutely critical in policy determinations of duplication, while the legal determination of what constitutes infringement or juridical notions of substantial similarity depend closely on textual analysis. We can therefore begin with two ways in which we may speak of the properties of film. On the one hand, you have the formal properties of film which has been the traditional domain of film scholars, which concerns diegetic qualities like narrative, film as a special narrative technology, film as a medium of mobilization of the public, etc. On the other hand, you have the question of film as property, which takes you into the slippery domain of the law of immaterial property, with its division into reproduction rights, distribution rights, format rights, etc. While film scholars have concentrated on the formal properties of film, lawyers have focused squarely on the latter. One of the challenges that exist is what happens when film as property starts encountering the formal properties of film. It is my argument that formal concerns about the properties of film can widen the way that we think of film as property (and its illegal other, piracy). It does this by asking different questions of piracy such as what kind of film culture piracy enables? How does the phenomenon of piracy enable us to revisit traditional film studies concerns such as production, reception, circulation and distribution? What kind of public forms of association do these new modes of circulation enable? How do we rethink the career of a cinematic object when it exists as a bundle of rights? What are the specific implications of piracy for scholars interested in the question of Asian cinema? Jane Gaines has already shown us how fruitful it can be when a film scholar starts reading copyright cases to discover an uncanny double life that film has always led, as cultural history but equally as cultural property. For her, copyright disputes over cinema show us film studies in inverted form:
Perhaps it is time for lawyers and film scholars to start bringing back the question of film into the question of property. I will attempt to look at some of these question by looking at one particular thematic, namely the question of temporality and the fate of cinema as property. Temporality and crisis of the immaterial commodity Mutual’s interest was in establishing a national market for its movies, and in its original form, the Mutual petition prioritized economic arguments, including the contention that the Ohio law imposed unconstitutional burdens on interstate commerce. In the original complaint, the company’s attorneys presented seven main charges against the censorship statute. The first five of these concerned the law’s invidious effects on property rights. Only the sixth of the firm’s seven serious complaints mentioned the freedom of speech. As the litigation progressed, the free-speech argument began to climb to a position of prominence until it finally eclipsed the economics-based arguments that the Mutual had stressed in the early stages of the case. By the time the company’s lawyers prepared their Supreme Court brief, free speech had won top billing, commanding fifty-one of the brief’s sixty-two pages (Wertheimer, 1993). Even when discussing free speech, however, the Mutual’s interest in open markets was manifest. “The court should consider not simply whether the enforcement of that [Ohio] censorship law will prevent appellants from exercising their right to ‘freely speak, write and publish their sentiments on all subjects,”’ the Mutual maintained, “but whether it will infringe upon the similar rights of those persons with whom appellants do business, and thereby less directly, but no less certainly, impose a burden upon the interstate commerce in which appellants are engaged.” (Wertheimer, 1993)
Windowing and the logic of distribution Windowing has been one of the time-tested techniques used by the film industry to extend their markets and to maximize consumption and revenues. Film producers/makers use various strategies to segment the audiences, to differentiate among different outlets of distribution and their times of release, and price-discrimination strategies, charging audiences different prices to see the film via different outlets, depending on when and where they see the film. The ability to control a range of new delivery and distribution outlets allows them to spread their risks and maximize their returns. The smooth functioning of the sequence obviously depends in part on the availability of the distribution and transmission technologies appropriate to each phase in the sequence; and it is equally dependent on the existence of administrative machinery for issuing licenses for each type of use and collecting royalties in return for licenses (Wang, 2003). Copyright and licensing is the architecture that sustains the windowing system. Indeed every phase in the sequence is underpinned by, and would be inconceivable without, one or other of the exclusive rights comprised in the copyright subsisting in films. The evolutionary dynamic that propelled the expansion of copyright in relation to film is based on the fact that new distribution/ exhibition/transmission technologies are continually met by new rights that enable copyright owners to govern the uses to which these technologies are put. The windowing system demonstrates the ultimate control over time and space by capital. Windowing in film distribution has been the one most under attack with new technological innovations. According to the Lamhe Music store plaint, piracy strikes at the heart of the windowing system, and Chander Lall, the advocate for the entertainment majors writes
Digital technology has disrupted the balance of power in the film industry. If power in late capitalist expansions lies in its ability to overcome the constraints of time and space, digital technology presents a major challenge to existing power due to its capacity to erase space and reward speed. While technological innovation is intrinsic in furthering capitalist market expansions, when used subversively it also undermines and challenges copyright industry’s need to command space and control time.
Reproduction and temporality Property regimes determine the legitimacy or authentication of the copy by defining ‘who can make a copy‘ or through the licensing of ‘who controls the making of the copy’. Copyright regimes therefore seek to create barriers in reproduction which technologies enable. The act of reproduction outside the sign of the law creates the world of commodities marked by the sign of ‘authentic‘, ‘authorized‘, ‘legitimate‘, ‘fake‘, ‘illegal‘ or ‘pirated‘. Since commodities move in time, their reproducibility and control of their distribution has a crucial temporal dimension. The proliferation of cheap technologies of reproduction in various social circuits, introduces a major crisis of property. The illegal reproduction of these copies or piracy are enmeshed in the diverse social worlds of livelihood, survival, leisure, desire, etc. (Bagchi, 2006) Excluded social worlds move into this cultural sphere through innovative techno practices that mobilize and disperse cultural goods at rapid speed and succession. The ways in which they lay claims on cultural participation is not dependent on the ‘paternal access’ that marked earlier forms of media, but can instead be characterized as a form of defiant access. If Linda Williams is right in her argument that contemporary cinema disciplines the audience into a docile body, movie piracy is non-disciplinary. Spectators of pirated movies do not need to follow the time schedules of theaters or television broadcasts; neither do they need to return the watched films to video rental stores. These practices of defiant access disrupt legal circuits of reproduction, and create disorder in the traditional revenue loop and value chain of film. Property Rights are therefore mobilized to set in order or control these disruptive circuits along the revenue chain and to smoothen the routes of circulation (Bagchi, 2006).
The legal response The Raid has been widely recognized to be an inefficient way of tackling the problem of piracy, and is conducted more for its performative role in the press than any real value in preventing the illegal reproduction and circulation of film. The raid can however be strategically used to disrupt the temporal logic of the pirated copy. Very often within a day or two of the release of a new film, a pirated copy, either in the form of a camera version or a leaked copy is available in the pirate markets. Raids, when successful, delay the release of the film of the in the pirate markets, and while everyone in the game knows that the film will eventually be available in the market, it is the logic of making the best of the melting block of ice that motivates the continuance of raids. Injunctions are the primary temporal legal tools which are used to bring back order to the disruptive flows of media commodities. But the problem with piracy is that given its tactile mobility, it becomes almost impossible to identify specific culprits, and a distinct dimension of the contemporary film experience lies in its sense of a dispersal. Technologies such as the cheap CD writer and MP3 compression undermine centralized locations for reproduction and distribution. New locations emerge, both for reproduction and, indeed, re-assembly, as CDs are customized for the individual consumer of popular music. Portability and cheapness ensure that equipment can be quickly shifted away from the intrusive eye of the detective agency hired to monitor copyright infringements (Sundaram, 2004). A number of legal innovations in the realm of injunctions have been developed to tackle the problem of anonymity in this domain. The three specific tools that have been used include
In addition to these you have two other strategies that are gaining prominence:
The waiting room of cinema The temporal nature of distribution is tied not just to an economic logic, but also to an economy of anticipation. The build up to the latest film, the trailers, the posters, the release of the soundtrack, the first-day-first-show phenomenon all work within an economy of waiting. At the heart of the temporal logic of film is also a culture of aspiration, fulfillment of desire or deferred pleasure. The windowing system of distribution unequally distributes the share of waiting, with the wait getting longer as you move away from the northern hemisphere and move towards different parts of the global south, or from the metropolises to small towns and villages. In films like Main Madhuri Dixit Banna Chahti Hoon (Chandan Arora, 2003), Haasil (Tigmanshu Dhulia, 2003) or Pankaj Kumar’s documentary Kumar Talkies (1999), we get a glimpse into this – waiting room world of cinema – as a field of differently distributed sensibilities. The newness of the films, the high quality of their reproduction, and the experience of movie-going come to stand for temporal and cultural difference, between the north and the south, between the town and the city. In a delightful scene in Main Madhuri Dixit, the protagonist goes to watch Devdas, but after a few reels the film stops and they have to wait for the arrival of the other reels from the neighboring village. The audience complains that the last time they had to wait for over two hours since the cycle in which the reels were being brought was punctured. The big city, not surprisingly, becomes the place where this fracture can be repaired, where films are shown in their entirety, and where audiences do not have to confront their physical and cultural marginality every time they attend the cinema (Larkin, 2004) and the social life of piracy occurs at the intersection of the economy of anticipation and the culture of aspiration. Cinema history does not merely involve the reinvention of technological formats but also of social selves (Vasudevan, 2003). Waiting for the latest Hollywood or Bollywood release then become an apt metaphor for those placed differently within the circuit of ‘technological time’. A useful way of connecting piracy to the temporal experience of cinema might then be to look at the infrastructure and technology that enables the circulation of films. Brian Larkin and Ravi Sundaram, who study the conditions of the ‘pirate modern’, argue that in contrast to the dizzying, real-time global integration of the information era, a large number of people experience time not through the trope of speed, but through the experience of interruptions and breakdowns. Breakdown creates a temporal experience that has less to do with velocity and more to do with the process of waiting. From waiting for email messages to open, machines to be repaired, or electricity to be restored, the experience of technology is subject to a constant cycle of breakdown and repair. In most countries the promise of technological prosthesis is thwarted by the common experience of technological collapse. Each repair enforces another waiting period, an often frustrating experience of duration brought about by the technology of speed itself. The temporal experience of slowness comes as a consequence of speed-producing technologies, so that speed and acceleration, deceleration and stasis are relative, continually shifting states. The experience of technological modernity in most countries is premised on waiting for it to trickle down; often through pirate indeginizing (Larkin, 2004). An interesting instance of this in film technology is the history of VCD’s and DVD’s. Sony and Philips jointly introduced the VCD technology in 1993 to record video on compact discs. It was cheap, digital, convenient and seemed to be setting the standard. At the time of the introduction of the new format, however, the development of the technologically far superior Digital Versatile Disc (DVD) was already underway. Even from the beginning, Philips was well aware of the pending arrival of the high-density DVD and the threat it would bring to VCD. Philips decided then not to further develop or produce VCD but rather to wait for DVD. Seeing the new format facing a more or less doomed future, Philips and Sony decided to launch VCD in China instead since it was “a technology that was fit for a poor cousin in laggard developing countries instead of cutting edge economies” (Wang, 2003). The introduction of VCD’s into China proved to be the biggest boom to cheap reproduction technologies. Ironically, the industry believed that CDs could fight the menace of video piracy (Wang, 2003, Pang, 2006). A large number of Asian markets adopted it enthusiastically, bypassing global distribution networks in order to ‘steal’ enjoyment. Darrell Davis calls the VCD a form of cockroach capitalism because of its proliferation; and within a short period of time, VCD became the major movie carrier in many developing countries. If you take China’s VCD player production and household presence it is startling: In 1998 there were 16 VCD players per hundred households and by 2000, there were 36.4 VCD players per hundred households. In 2000, there were 14.5 million units manufactured, but by 2001, this number falls to 1.2 million units since the manufacturing moves into DVD’s. VCD technology spread rapidly form East Asia to other parts of Asia, and within a few years of their introduction, VCD’s replaced VHS as the standard format in most parts of Asia. In India for instance, while the price of the VCR never fell below ten thousand rupees, a VCD player was available for as low as a thousand rupees. VCD culture also spread from Asia into other the world very rapidly. In Nigeria, which is incidentally the largest film industry in the world (producing more than 1200 films a year), most of the films are only available on VCD and DVD. But given its complete absence in the western market, there seems to be something distinctly ‘Asian’ about VCD technology (Hu, 2007). Asian VCDs, not Asian values Interestingly, the media landscape of many South Asian countries is a landscape chiseled out of another Asia of the mind. This is an imagination of the modern, in which the point of reference is not the enlightenment or the industrial revolution of Europe, but the almost magical transformation of South-East Asia. This is an Asian modernity, in which the copying countries of South-East Asia serve as the original role models for countries in the rest of Asia. We can illustrate this with one of our favourite maps (and here we use the idea of a map not in the ‘disenchanted’ way of seeing national territory within a ‘techno-rational’ grid). Our map belongs to the genres of enchanted maps, in which the imaginary overwhelms the real, and opens out fantastical possibilities of seeing. This is our map of an Asian commons of copy culture. 
As you step out of National Market in Bangalore, you are faced with a cartographic puzzle. Diagonally opposite the National Market -a haven for pirated goods- is the Bangkok Plaza, and a few meters away you have the Burma Bazaar. Smiling across the Burma Bazaar is the New Hong Kong Bazaar, announcing itself with it’s not so new signboard in which the Kong is only a matter of an educated guess. While globalization is supposed to have redrawn boundaries and shifted our ideas of time and space, you are still not quite prepared for this distorted sense of Asia, in which you step out of the national to encounter Bangkok, Burma, Hong Kong, gesturing towards a very different experience of the global and of modernity. All these markets which specialize in non-legal media commodities from phones to DVD’s and software, are the nightmare of global policing institutions such as World Trade Organization and the World Intellectual Property Organization. They also serve as an appropriate metaphors of the contemporary, in which rules of property collides with unofficial cultural flows. There are various versions of the unofficial Asian maps, and the International Intellectual Property Alliance has also moved into the business of cartography, with its annual production of the ‘Special. 301 Report’, which has a consistent interest in Asia. 
What is interesting is the picture of Asia that emerges from these cultural flows of technology and cinema. In contrast to the heavy civilization claims of Asian values or the geo political approach that sees Asia as a conglomeration of various strategic national units, the informal cultural and technological flows between Asia poses interesting questions of how, rather than what Asia means. In the early days of globalization, travel writer Pico Iyer set out in search of what he despairingly called the Ramboization and Coco Colonization of Asia. This is a trope that has been adopted by a number of critics of globalization, who argue that what has taken place is merely the Americanization of the world, with the hegemonic spread of American businesses and culture across the globe. And yet if one were to take a careful look at what is being sold in the DVD shops in any of these markets and elsewhere in the country too, you find that apart from your standard Hollywood and Bollywood fare, you also increasingly find a range of films from countries whose films do not have any official circulation in India. Whether it is the Korean cult classic Old Boy ( Chan-wook Park, 2003) remade as the non-incestuous Zinda (Sanjay Gupta, 2006) in India, or lesser known films from all parts of the world. Chua Beng Huat, arguing for the importance of conceptualizing an East Asian popular culture, says that
There are a number of exciting possibilities being opened out by this new cinephilia (Biswas, 2007), where all of a sudden there is a far greater interest in Asian films than in Hollywood or even in European Art House. The immense popularity of film makers like Wong Kar-wai, Tsai Ming-liang and Hou Hsiao-hsien stems from their visibility in the film festival route but outside of that you have a range of films from Korea, Thailand, Japan and even Cambodia which find their way into the pirate markets. If one were to compile an alternative list of the top ten films in pirate shops in National Market or in Burma Bazaar, one would come up with many surprises. In a screenwriter’s conference organized by Film and Television Institute of India, Anurag Kashyap said that over ninety percent of the films made in India are DVD remakes, and that we celebrate DVD remakes. This, to me is an intriguing formulation. He does not say that the films are remakes of Hollywood films or Japanese films, and he chooses instead to create a new category called the ‘DVD film’. Unlike the category of national cinemas of the world, illicit media always spills over national boundaries and has always had a transnational feel to it (whether it is the ubiquitous foreign blue film or the circulation of a wide range of art house or commercial films within the context of video and DVDs). In Jianjun He’s low budget film Pirated Copy (2004) about the circulation of pirated films in Beijing, a pirate DVD seller tries to sell Bergman, Tarkovsky and Fellini to her customer. The customer says he has never heard of them and enquires whether Tarkovsky is a Russian composer, and asks instead for the Korean film My Sassy Girl. While there has been much hype about the idea of transnational cultural flows, it is unclear what the nature and impacts of these flows have been; and more specifically, what are the sites in which these flows take place. How do we take into account these unofficial flows that are taking place? What is perhaps interesting about the flows that piracy enablesis that all of a sudden they are not restricted merely to East Asia alone, and East Asian presence in the Indian media markets enable us to think differently about the idea of a transnational cinema. Meaghan Morris says, “In an inter-Asian context, it also allows us to reflect historically on transnational industrial as well as aesthetic imaginings, which do not solely derive from the West and which ‘flow’, as it were, towards and through Western cinemas as well as around the region itself”. (Morris, 2004). The site of illegal cultural flows in Asia is also being mobilized interestingly by media corporations and owners of intellectual property. Consider for instance the following
Even People like Lawrence Lessig, who would otherwise be considered to be on the left of copyright in the US, has to invoke the figure of the Asian pirate to redeem the innocent US downloader: All across the world, but especially in Asia, there are businesses that do nothing but take others people’s copyrighted content, copy it, and sell it—all without the permission of a copyright owner (….) The copy shops in Asia, by contrast, are violating Asian law. Asian law does protect foreign copyrights, and the actions of the copy shops violate that law. So the wrong of piracy that they engage in is not just a moral wrong, but a legal wrong, and not just an internationally legal wrong, but a locally legal wrong as well (Lessig, 2004). If the new forms of film circulation in Asia are to be made sense of, then we have to urgently rescue them from knee jerk responses to piracy, as though piracy arises as a specific moral problem of Asia. It may instead be time to start looking past piracy towards a better understanding of the properties of film in the age of the mechanical reproduction.
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