by Ellen Seidler | Ad Sponsored Piracy, Copyright, Film, Piracy
Yes Charles, online piracy does pose a threat to the health of independent film
Charles Judson, a self-described “Writer, Film Critic/Consultant,” raised some eyebrows–mine included–with a piece published this week on cinematlmagazine.com which featured the headline, ” Is Piracy a Danger to Independent Film? Part 1: The Search-In Which I Can’t Find Much of Anything” It’s a (sort-of) rebuttal to the recent post on indiewire.com “Here’s How Piracy Hurts Indie Film,” co-authored by Creative Future’s Executive Director Ruth Vitale and Tim League Founder/CEO of Alamo Drafthouse Cinema in which they examined how online piracy undermines independent filmmakers:
The fact is: pirate sites don’t discriminate based on a movie’s budget. As long as they can generate revenue from advertising and credit card payments—while giving away your stolen content for free—pirate site operators have little reason to care if a film starts with an investment of $10,000 or $200 million. Whether you’re employed by a major studio or a do-it-yourself creator, if you’re involved in the making of TV or film, it’s safe to assume that piracy takes a big cut out of your business.
In his piece Mr. Judson appears to be skeptical of their assertions and goes to great lengths to prove them wrong. He recounts conducting his own (unscientific) online research to determine the extent to which independent films are pirated online. His first mistake was limiting his searches for listings on Kickass Torrents:
Let’s start with something easy to test that first claim, we’ll do that by using Kickass Torrents to search for films that screened at Sundance this year. We’ll use the films from the U.S. Documentary (16), U.S. Dramatic (16), and Premiere (19) sections. With 51 films listed and this being six months after their initial screenings, it should give us a strong picture.
His findings lead him to draw this questionable conclusion with a caveat: “So far though, it doesn’t appear that pirates have much interest in indie films. Not to the extent they do mainstream releases.” 
Mr. Judson also asks, “ If piracy is a threat, why is [it] so hard to find films that have been screening and available in various forms since January?”
The answer to Judson’s query is simple: he’s looking in the wrong place.
Aside from the fact Judson’s focus on Sundance-screened films is myopic (a selection that fails to reflect a true cross-section of American independent film) his use of KickAss Torrents as a bellwether for online piracy is simply naive. Though torrents garner much attention, it’s a big mistake to view this type of pirated download as the only game in town. 
In fact, for many niche indie films the threat of piracy comes not from torrents, but from cyber-locker (and even Google-hosted) pirated movie downloads and streams that provide a viewing experience akin to Netflix. On this blog I’ve documented numerous examples of online pirates who ply their wares by providing consumers with convenient (and free) movie watching experiences.
Why use Wolfeondemand.com when you can find your favorite LGBT films on a Blogger-hosted pirate site that offers hundreds of titles for free?
As a matter of fact I searched for a few of the titles on Judson’s list (those he found torrents for, and some he did not) and easily found dozens of non-torrent links to pirate streams and downloads. A few links had already reported for “copyright infringement.”
Streams and download links to indie films are easy to find if you know where to look
In those cases, the filmmakers or their distributors were obviously working to protect their productions. But links for other movies on his list (see graphic above) were still active and ripe for download or streaming. While I don’t claim my results are scientific, they do lend credence to the fact hat today’s piracy has moved beyond torrents.
Finding Cyberlocker downloads for films Judson found no torrents for was easy
Mr. Judson’s conclusions about piracy’s (non) impact based on searching for torrents is not only questionable, but also relies on fuzzy math.
It’s a given that indie films aren’t pirated to the same extent that major Hollywood releases are, but so what? That’s really beside the point isn’t it? The financial hit piracy can have on an indie film made on a shoe-string budget can be just as great, percentage-wise, as piracy on a blockbuster film like Expendables 3.
Indie filmmakers don’t generally have deep pockets and have often begged from others and borrowed from themselves in order to make their films. Every penny earned on the backend counts. Just this week filmmaker Zach Forsman wrote a piece for FilmSchoolRejects.com where he recounted his experience with online piracy and the damage it caused:
Six weeks after Down and Dangerous was released domestically on iTunes and VOD, our distributor estimated that it had sold 10,000 streams and downloads, topping out at number 13 on the iTunes Thrillers Chart. Not too shabby. By that time, torrents of the movie had been downloaded at least as many times. Now it would be ridiculous to count all 10,000 downloaded torrents as lost revenue. But if only 10% of those could have been converted to legit sales, that’s another $7,000 we could have grossed. Not a massive amount of money, but to an outfit that crowd funded a $38,000 budget to make the sucker, it’s significant.
The piracy of “Raid 2” is not limited to torrents
Judson tries to split hairs a bit acknowledging that , “Having someone pick your pockets to the point you are losing money isn’t a good. It’s a path that will make funding that next feature, and making a living while developing that feature, impossible.” Yet, based on his research, he appears to be skeptical that online piracy is damaging to indie filmmakers:
Shouldn’t it be a concern that every minute a filmmaker spends policing piracy, is a minute they aren’t promoting their film to the audience that will pay for their film? If piracy is a threat, why is so hard to find films that have been screening and available in various forms since January?
…If indie filmmakers are going to be recruited to join a battle against illegal downloads, if doing this “better serves audiences and artists,” we better be damn sure it’s time well spent.
Of course an indie filmmaker’s time would be better spent making new films, BUT if your work is being ripped off right and left by online pirate profiteers, the sad truth is that it does impact the bottom line. Views lost to piracy can be the difference between paying off production debts or not. Those losses can mean the difference between making another movie or finding a day job.
I’d suggest that the skeptical Mr. Judson take a look at the video embedded below to learn just how pervasive online piracy is, even for small indie films (btw, none of the pirate links mentioned in the video are torrents). Frankly, it doesn’t take a rocket scientist to figure out that piracy takes a toll on filmmakers both large and small.
Follow the Money: Who Profits from Piracy?
by Ellen Seidler | Copyright, Google, Law, Piracy, Politics, Tech
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[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Creative artists who speak out to defend their work from online poachers have long been the target of the Electronic Frontier Foundation (EFF), a Google-funded tech-centric organization that ostensibly “champions user privacy, free expression, and innovation.” Many creators first become familiar with the EFF when sending takedown notices to Google for copyright infringement on its various products (YouTube, Blogger, search, etc.) and receive warnings that the DMCA notice (listing the infringing link) will be sent to the EFF’s public Chilling Effects database. The purported goal of the database is to provide a clearinghouse to study “the prevalence of legal threats and allow Internet users to see the source of content removals.” Unfortunately, its real mission seems to be to further intimidate rights holders who try to protect their work from online infringement. The database has, in fact, become a handy source of links to pirated content. Given its history as a tech cheerleader, it’s no surprise that the EFF is at it again, this time drafting a letter to officials who are negotiating the “intermediary liability” language for Trans-Pacific Partnership (TPP) free trade agreement. According to the U.S. Trade Representative’s website:
TPP will provide new market access for Made-in-America goods and services, strong and enforceable labor standards and environmental commitments, groundbreaking new rules on state-owned enterprises, a robust and balanced intellectual property rights framework, and a thriving digital economy.
While there are legitimate concerns about transparency with the negotiating process, transparency is a double-edge sword. Perhaps the EFF should take a dose of its own medicine. The language contained in EFF’s letter once again establishes criterion where the rights of content creators should be considered secondary to those of “innovators” (a.k.a. tech interests). It paints a predictable–but false–scenario where rights holders are running amok by flooding poor service providers with unsubstantiated takedown notices.
We are worried about language that would force service providers throughout the region to monitor and police their users actions on the internet pass on automated takedown notices, block websites and disconnect Internet users.
It’s the old canard whereby web users’ right to steal copyrighted content trumps the creator’s right to remove it. The reason we have “automated takedown” processes in the first place is the amount of theft is so massive, that for many rights holders, it’s the only way to make a dent in the un-checked online copyright infringement that’s been unleashed in the name of “innovation.” Google has to deal with millions of takedowns because it enables (and profits from) millions of infringements. Even Google admits that the number of erroneous takedowns is minute (3%) compared to the number of valid ones (97%). The EFF asks for “flexibility” for nations to “establish takedown systems.” It’s a malleable term one could drive a truck through that would unquestionably undermine the entire point of writing IP protections into the agreement in the first place. Of course that’s precisely why the EFF and its shadow kingpins are pushing it. The fact is that there’s no such thing as borders in today’s digital world and treaties such as the TPP may be the only way to forge a path forward where IP can be protected in a meaningful, global way and nurture creative business in developing countries. Indeed, to gut IP protections by allowing nations “flexibility” would lead us back full circle to our current morass–a patchwork of enforcement that undermines any meaningful protection for creators rights around the globe. As Peter S. Mennell, noted law professor and co-director of U.C. Berkeley’s Center for Law & Technology wrote in a paper published this past April, This American Copyright Life: Reflections on Re-equilibrating Copyright for the Internet Age:
U.S. treaty and trade negotiators should celebrate and nurture Bollywood, Nollywood, and other creative communities as a primary focus for achieving global copyright protection. The U.S. should not be seen as an IP bully on the international stage but rather as a genuine partner willing to lend a hand up to nations willing to support their creative industries. Such a policy has the added bonus of promoting free expression and democratic ideals.
The EFF, and those drafting this trade agreement, should be mindful of what defines “democratic ideals” and acknowledge that creators worldwide “are worried,” and rightfully so, about an unbalanced online eco-system whereby the rights of certain users and business interests routinely trump the rights of artists. The letter raises EFF questions whether the TPP is “pushing proposals that that would truly enable new businesses to flourish in our countries in the decades to come.” For accuracy’s sake, perhaps the EFF should just be clear about their goals (and those of the tech companies that send millions their way) and clearly ask the TPP to bow to pressure and push proposals that would “truly enable” copyright infringement to “flourish” un-checked in the decades to come. After all, companies like Google traffic in content and the fewer obstacles to using and disseminating said content, the more profits for them. If you look at the list of signatories on the letter is a predictable (tech) bunch and attached to the document is the EFF’s own screed on “Abuse of the Copyright Takedown System.” As part of its advocacy efforts, the EFF routinely muddies the waters and conflates valid concerns over online privacy and free speech rights with copyright holders’ efforts to protect their work from infringement. Protecting rights within all three realms is important and doing so effectively, despite EFF rhetoric to the contrary, need not be a mutually exclusive process. The EFF approach to protecting “rights” in the digital age has always has been disingenuous. Gin up hysteria in order to push an anti-copyright agenda–an agenda, covertly built on the interests of the tech industry and NOT the community at large. For the record, protecting copyright is defending free speech. The EFF’s letter to TPP negotiators is just one more link in its (tech-funded) chain of lies.[/vc_column_text][/vc_column][/vc_row]
by Ellen Seidler | Copyright, Film, Piracy
The movie Lyle is being streamed online for free
This week I’ve come across two pieces written by indie filmmakers that discuss distribution options in the age online piracy. While it’s good to see the issue being addressed, the dichotomy between the two reveals that differences remain developing distribution models in an age where revenue streams are undermined by online profiteers.
The first piece published on filmmakermagazine.com by Stewart Thorndike and Alex Scharfman, “Why We Are Giving Our Feature Away for Free at LYLEmovie.com,” presents the filmmakers’ plan to give the movie away for “free” in order to engender good will and drive donations for their next project in a planned horror trilogy:
We wanted to stick with the idea that got us to Lyle: the desire to control our film’s destiny and not wait for permission.
It is in that spirit that we’re giving Lyle away for free at LYLEmovie.com. Sure, we could send the film out on the festival circuit and hope for a more traditional distribution offer, but that would take months or even years.
While the goal to “control the destiny” of one’s film is a laudable one, it’s also not one that will work for every indie film.
In this case, the filmmakers see giving their film away as smart marketing explaining, “By giving Lyle away, we’re inviting that audience to come find us and help us make more movies for them.” It’s a laudable plan and I wish them well in their efforts. After all, how one distributes one’s film should be a matter of personal choice. However, in explaining their approach they seem to view the digital world through slightly rose colored glasses:
The music industry, whose models seem to be a few years ahead of film, has already seen artists like Radiohead make their work available in exchange for whatever a fan wants to give. In the comedy world, Louis CK had enormous success when offering a pay-what-you-want (with a $5 minimum) deal on his standup special in 2011. In our case, we’re inviting Lyle’s viewers to donate what they want to our next film, Putney. Through this model, we hope to disrupt the traditional financing and distribution paradigms by tying the distribution of one project to the financing of another, democratizing both to create an audience and a brand on which we will build with Putney.
To point to the pay-what-you-like (one-time) distribution efforts used by Radiohead and Louis CK as a workable model for distributing small indie films, while sincere, seems a tad simplistic. After all, even Radiohead referred to the stunt as a “one off.”
Many music fans had hoped that the band’s now famous pay-what-you-want promotion was an attempt by the group to discover a new way to sell music. Now it appears Radiohead at best was after publicity.
While giving their film away for free to finance a second low-budget film might be the right choice for them, it certainly won’t “disrupt the traditional financing and distribution paradigms.” Those paradigms have already been radically disrupted by online piracy and, despite good intentions, not every feature film can be made via crowd-funded micro-budgets.
The latter point is one that filmmaker Zak Forsman raises in “I Made a Movie Worth Stealing: My Experience with Piracy,” posted this week on filmschoolrejects.com. Forsman recounted his experience with online piracy following the release of his feature, Down and Dangerous:
The movie has been uploaded in its entirety to YouTube about a dozen times now. Most recently, I issued a takedown for a Vietnamese-subtitled version.
As I filed that first copyright violation and takedown request, I wondered, “Is this going to be part of making movies now? Chasing down pirated copies and jumping through hoops to get them removed?”
Forsman notes there may be a difference between micro-budget productions and indie films with bigger budgets:
…if I were releasing the movie myself, directly to fans, I’d be happy to see people steal it and share it. Truly. Working in microbudgets affords me the opportunity to be a bit of a gambler when it comes to raising a movie’s profile. But in this case, I had a responsibility to protect the movie’s potential sales on behalf of our distributors.
Forsman also attempts to quantify the actual toll piracy took on his film’s revenue making a conservative estimate that if 10% of 10,000 illegal downloads were converted into legit sales it would add an additional $7,000 to their gross. As he points out, it’s not an insignificant figure for a film that cost $38,000. Having experienced the reality of online piracy firsthand, he also outlines steps filmmakers can take to prepare.
In contrast, the Lyle filmmakers have made the choice to attempt to sidestep piracy entirely by giving the film away. As writer/director Thorndike noted in an interview with tribecafilm.com, ” Instead of paying to see the movie, you pay, if you liked the movie, to see the next movie get made.” It will be interesting to see how this approach plays out, but given the fact that online pirates don’t give a darn where they steal films from, the movie will most likely still be pirated. Within days the (free) streamed film will be stolen from the filmmaker’s own website and pirated elsewhere, reducing visitors to their own Kickstarter campaign. Meanwhile, per usual, online pirates will be generating income off the stolen movie via their own sites.
Given the low amount of funding sought ($35,000), in this instance the piracy is unlikely to prevent a successful fundraising campaign, but moving forward, will these filmmakers want to limit themselves to only produce micro-budget films? At some point those who work on these films will want to make a living doing so. Does this approach really sustain a robust indie filmmaking culture? Is this really the “paradigm” filmmakers want for their future?
In any case it’s good to see indie filmmakers acknowledge online piracy’s impact on distribution and engage in discussions about ways to dull the damage. Here’s hoping we can learn from their experiences and see more films from them in the future.
by Ellen Seidler | Law, Music, Politics, Publishing
Time for music licensing to meet the 21st century
For consumers, the digital age means accessing music anywhere, anytime at a very low cost (or free) but the picture isn’t so rosy for those who actually make their living writing and performing music. Everyone acknowledges that online piracy was the first tsunami to hit the music industry, but now, though legal, the rise of streaming services like Pandora and Spotify have served to further undermine creators via an antiquated and utterly lopsided licensing system. While most consumers remain blissfully unaware of the complexities of the music licensing maze, those who depend on it for their paycheck are acutely aware that it’s in dire need of an update. In the eye of the storm sit nearly 75-year-old “consent decrees” that determine how rates are set for various forms of music licensing. With the advent of online streaming, those who make their living creating music have found that the outdated decrees have hamstrung their ability to earn a living in the digital age. As William McConnell explains in his piece “Copyright debate has new tune in the age of streaming” published on thedeal.com:
Artists and the publishing industry say the system needs to be revamped with the advent of digital delivery technology that has devastated sales of traditional CDs. That trend has intensified as listeners increasingly rely on streaming services like Pandora, Spotify, Grooveshark and Beats Music rather than on digital song-purchasing services like Apple Inc.’s iTunes, which pay artists and publishers significantly higher fees. The shift has cut into artists’ earnings from recording music.
The Antitrust Division of the Department of Justice has opened a review of ASCAP and BMI Consent Decrees and is soliciting public comments. ASCAP President and Chairman Paul Williams issued this statement on the review:
We are gratified by the Department of Justice’s decision to open a formal review of the ASCAP and BMI consent decrees. Since the ASCAP decree was last reviewed in 2001 – before even the iPod was introduced – new technologies have dramatically transformed the way people listen to music. ASCAP members’ music is now enjoyed by more people, in more places, and on more devices than ever before. But the system for determining how songwriters and composers are compensated has not kept pace, making it increasingly difficult for music creators to earn a living.
ASCAP remains committed to working with the Department of Justice and all industry stakeholders to modernize the music licensing system so that it better serves songwriters, the businesses who depend on our music and the people who listen to it – not just today, but for generations to come. Updating music licensing regulations to reflect the realities of today’s music landscape will preserve the benefits of collective licensing to businesses that license music, give consumers greater access to the music they love and allow the more than 500,000 songwriters, composers and music publishers we represent to be compensated for the true value their music brings to the marketplace.
With the deadline on August 6th for public comments fast approaching, it’s crucial that songwriters and those who support them speak up on the issue. As musician David Lowery explained in a call to action, published today on The Trichordist:
The DOJ is reviewing the WWII era consent decrees that force songwriters under federal court supervision for supposed anti-competitive practices. Yes the awesome power of the federal government is being used to protect multi-billion dollar companies like Clear Channel, Sirius, Pandora, YouTube/Google, Amazon and Spotify from hippy freak songwriters. Considering that many of these companies are effective monopolies it’s a stunning abuse of federal power on behalf of a few politically connected corporations. The consent decree forces songwriters to allow these services to use our songs while a single appointed for life judge (song czar) makes arbitrary sets our rate of compensation. You may remember that I posted that my million spins on Pandora earned me less than $17? And I can’t even opt out of this service. How is that even fair? That’s how this kind of outrage occurs. This amounts to a government mandated subsidy from songwriters to some of the largest companies in the world. If you are a songwriter, please submit comments. The DOJ specifically would like to hear from you. If you don’t’ understand the legalese just make a simple statement about how you feel about the compensation from these digital services that results from these consent decrees. Be passionate but polite. Here are the instructions: http://www.justice.gov/atr/cases/ascap-bmi-decree-review.html
You should check out Lowery’s post to read the complete comments he posted in response to the DOJ solicitation as well but here’s his opening paragraph:
I am an American songwriter, a member of BMI and a member of the bands Cracker and Camper van Beethoven. I’m submitting this comment on my own behalf in opposition to the ASCAP and BMI consent decrees. I believe these government actions essentially are a compulsory license outside of the Congress and take away songwriters’ rights to due process of law.
You can find out more on the DOJ’s review here but here’s an excerpt as to what they are seeking and where to send/email your comments:
Public Comments Are Solicited
As part of its review, the Department invites interested persons, including songwriters and composers, publishers, licensees, and service providers, to provide the Division with information or comments relevant to whether the Consent Decrees continue to protect competition. While Performance Rights Organizations, such as ASCAP and BMI, monitor for unlicensed uses, enforce copyrights against unlicensed users, and administer copyright royalties, the Department is most interested in comments on competitive concerns that arise from the joint licensing of music by Performance Rights Organizations and the remediation of those concerns.
In particular, the Department requests that the public comment on the following issues:
- Do the Consent Decrees continue to serve important competitive purposes today? Why or why not? Are there provisions that are no longer necessary to protect competition? Are there provisions that are ineffective in protecting competition?
- What, if any, modifications to the Consent Decrees would enhance competition and efficiency?
- Do differences between the two Consent Decrees adversely affect competition?
- How easy or difficult is it to acquire in a useful format the contents of ASCAP’s or BMI’s repertory? How, if at all, does the current degree of repertory transparency impact competition? Are modifications of the transparency requirements in the Consent Decrees warranted, and if so, why?
- Should the Consent Decrees be modified to allow rights holders to permit ASCAP or BMI to license their performance rights to some music users but not others? If such partial or limited grants of licensing rights to ASCAP and BMI are allowed, should there be limits on how such grants are structured?
- Should the rate-making function currently performed by the rate court be changed to a system of mandatory arbitration? What procedures should be considered to expedite resolution of fee disputes? When should the payment of interim fees begin and how should they be set?
- Should the Consent Decrees be modified to permit rights holders to grant ASCAP and BMI rights in addition to “rights of public performance”?
All comments should be submitted by electronic mail to [email protected] by August 6, 2014 and will be posted in their entirety for public review at this web address. Information that parties wish to keep confidential should not be included in their comments. Comments may also be sent, preferably by courier or overnight service, to
Chief, Litigation III Section Antitrust Division U.S. Department of Justice 450 5th Street NW, Suite 4000 Washington, DC 20001
Also worth noting–and supporting–is the proposed Songwriter’s Equity Act, which is “an important step toward leveling the playing field and modernizing the music licensing system. It will ensure that songwriters, composers and publishers are fairly compensated for the use of their music.”
by Ellen Seidler | Ad Sponsored Piracy, Copyright, Film, Google
Watch Disney’s hit Frozen online for free, thanks to Google
Google says it’s trying…really…to get tough with online piracy, but actual evidence continues to tell a different story.
When is enough really enough? When will Google really do something to stop the flow of tainted money into its coffers? Why does the Silicon Valley behemoth still get a free pass when it comes to profiting off content theft? Why is OK that the company not only profits from piracy, but, in order to ensure the continued flow of money, actually PROVIDES online pirates with (free) infrastructure from which to operate their illegal businesses?
How is Google’s business model–by any measure–OK? When will authorities step in to strip Google of its “safe harbor” protections? Isn’t there ample evidence that, despite the lip-service and lobbying to the contrary, the company grows fat by stealing from the hard work of others? I suppose the current trend of inertia and avoidance will likely continue as politicians in Washington will be too busy playing games at Google’s new DC lobbying offices to actually take overdue action against the greedy Goliath.
Google dares to applaud its efforts in the fight against piracy boasting, “Google is a leader in rooting out and ejecting rogue sites from our advertising and payment services, and is raising standards across the industry.” Makes for a good talking point, but should score a big time four Pinocchio #FAIL.
If Google’s efforts against piracy constitute “leadership” then we really are in trouble. Google’s “leadership” on this issue is a charade, and actually should be characterized as this 
. If Google really wanted to raise standards across the industry it wouldn’t be difficult. If it can spend millions to build a shiny new lobbying center in Washington and spend millions more to wine and dine politicians, it can certainly spend a few bucks to hire more staff to review and remove Blogger sites engaged in online piracy and vet AdSense account holder’s regularly to make sure they are meeting “terms of service.” It could also easily provide advertisers with real data as to which sites displayed their advertising so these companies could be held accountable and provide a further line of defense against piracy profiteers.
For now, in case you need any reminder about just what a lousy job Google’s doing “raising standards across the industry” here’s just one more example of a Google-hosted Blogger website I came across today that features Google advertising alongside stolen movies. Google makes money. The advertisers gain customers. The creators get ZERO. It’s absurd.
