It is hard not to believe Ken Naz of Eros International, a leading movie distributor in North America, when he says that counterfeit DVDs of Indian films has become so endemic that even the most persistent fight against it seems futile. "It is like plugging the Titanic," he said last week just as a federal judge slapped a $1.1 million fine against Jayesh Modi, the former owner of Vijay Music Center in Jersey City, following a piracy suit brought by Yash Raj Films. "You close one hole and a dozen holes surface in no time."
Eros itself has launched several lawsuits against pirates and even though it has won a few victories, the culprits were back in business no time.
"What Yash Raj is doing is to prove that they are even more persistent and relentless against piracy than the culprits," says William Poppe, an attorney who has represented Yash Raj for over four years, winning them awards of more than $3 million against other offenders.
Poppe had asked Judge John Lifland in the US District Court in Newark to fine Modi $5.5 million.
The fine against Modi was for violating a court order prohibiting the sale of pirated DVDs of Indian films in his shop in 2003.
According to the court documents, Modi had agreed in a settlement in 2002 not to sell counterfeit copies of Yash Raj Films but a raid in August 2003 yielded over 1,000 pirated Yash Raj DVDs and VHS videotapes including that of the film Kabhi Khushi Kabhie Gham. The film grossed a jaw-dropping $7.5 million in North America and the United Kingdom but Yash Raj believes it would have made at least $5 million more in theaters and DVD but for the pirates.
Many Hollywood movies earn as much as in DVD and VHS videotape sales and renting as in movie theatres. Hollywood films are also widely pirated and yet the legitimate DVD and VHS market remains formidable. However, there is hardly any market for original Indian DVDs in North America and in the United Kingdom.
Deepa Mehta's Oscar-nominated Water, which was released in America some six months after its Canadian release, drew few Indians to the theatres. The illegal DVD copies of the film surfaced in America a few weeks after its Canadian release. Though the film went on to earn over $3.5 million in American theatres and became the highest grossing Hindi language film ever in North America, Mehta believes it would have easily made at least $3 million more but for the illegal DVDs.
"We make a special appeal to the Indian viewers to see the film again," she had said on the eve of the film's American release through Fox Searchlight. "If we go and see these films in the theatres, we will be telling Hollywood there is a big market for films like Water. And that will get more Hollywood producers and distributors backing our films and taking them to the mainstream."
Such an appeal means very little hundreds of store-owners in the country who are ready to offer you a DVD of a high profile film released on the same day as the film hits some 70 screens across America and Canada.
Modi, who says the store owned by his sister now, offers only legitimate videos and DVDs, last week told reporters that pirated DVDs 'is a general practice in the Indian market.' Several shop owners, who did not want to be quoted by name, said while news of the hefty fine on Modi worried a few, there were still many who were selling fake DVDs.
Shop owners have also been saying that some rogue film distributors encouraged illegal video sales of their own films, keeping away profits from the producers. Raju Patel, president of the Jersey City Asian Merchant Association, told reporters that distributors had encouraged years ago the stores to make their own copies from the master copy. 'The truth is those people who are bringing the videos over here are the ultimate culprits,' he alleged.
Video piracy is certainly not confined to the South Asian community, says Poppe. He says he knows why it is that, despite the occasional court victories, the problem continues.
"Many of then continue to do so because they calculate the financial risks, and how much money they make if at all they are caught and have to pay a fine," says Poppe. "You can imagine how big then is the business."
"We have been going after these people for over seven years and yet nobody has gone to prison for violating copyright," he continues. "We have won numerous judgments, the most notable being the one against Media Dimension and Bharat Mehta in Austin. Mehta was fined $2.3 million but his company soon declared bankruptcy."
For law enforcement agencies, he continued, going after video pirates is not a high priority. "In one raid in Queens, we discovered pirated DVDs and CDs worth perhaps two million dollars," he says. Had it been a theft of some other material, say, auto parts, law enforcement would have acted with more vigor and the culprits sent to jail, he says.
Yash Raj Films has given up hope of recovering anything from Mehta although there is still hope of getting money from Modi, he says. Modi's case was detailed at length in the Star Ledger newspaper under the title, Copy Wrongs.
According to the court documents, Modi who kept declaring in court that he was not a criminal, initially denied knowing anything about the DVDs found in the August 2003 raid. He did not know how the DVDs and VHS tapes came to be in a storage room closet next to a doctor's office, he said.
But the next day, Modi's attorney Harvey Pope told the judge that Modi had lied to him and lied during the testimony. Modi was put on the stand again and admitted putting the DVDs in the closet.
'All of Modi's testimony about the counterfeit DVDs in the storage closet was incredible,' Judge Lifland wrote in the judgment.
"What Yash Raj wants to do -- and the order comes right from the man who started the company, Yash Chopra -- is to show the culprits that we will keep going after them," Poppe says. "We have not been able to stop video piracy but we have surely brought down the practice."