by Ellen Seidler | Copyright, Film, Piracy, Politics, TV
Leading the piracy parade is ‘better than an Emmy’? Please, speak for yourself Mr. Bewkes…
According a story yesterday in AdWeek, another well-paid executive linked to the HBO hit “Game of Thrones” is once again singing the praises of online piracy. Last time it was HBO’s programming president Michael Lombardo, now Time Warner CEO Jeff Bewkes has joined the chorus.
…in response to a question about whether the network kinda-sorta regards the extensive theft of HBO’s flagship show, Game of Thrones, as a compliment, Bewkes said, “I have to admit it, I think you’re right.” The much-discussed fantasy series is HBO’s most popular, and “if you go to people who are watching it without subs, it’s a tremendous word-of-mouth thing,” the exec told investors. “We’ve been dealing with this for 20, 30 years—people sharing subs, running wires down the backs of apartment buildings. Our experience is that it leads to more paying subs. I think you’re right that Game of Thrones is the most pirated show in the world,” he said. “That’s better than an Emmy.”
Yeah sure, easy to say if you’re CEO of Time Warner and have a huge hit like HBO’s “Game of Thrones” on your hands. But really, given that you work in the media industry Mr. Bewkes, didn’t you have a clue as to the impact your glib “soundbite” would have on an already hyperbolic debate over online piracy and copyright reform?
Fine Time Warner/HBO, feel free give your show away and boast that the record (pirate) downloading of Game of Thrones episodes is a hunky-dory thing for your bottom line. In your case, it may well be….more power to you.
The problem is that when Jeff Bewkes muses to a reporter that, for a hit show like Game of Thrones, piracy is “better than an Emmy” it can lead the general public to assume the same reality applies to all content creators. Certainly piracy apologists are likely to make hay–and headlines–out of it.
Perhaps creators whose works have been massively pirated can take some solace from Bewkes’ success, but the fact is his experience (and that of HBO programming) is not one matched by their own. The Time Warner CEO likely doesn’t have much difficulty paying bills (or financing his next production) like so many do. Many filmmakers don’t have the reach (or deep pockets) of HBO and, like it or not, for them online piracy (driven by black market profiteers) is a detriment to success–not a sign of it. Bewkes’ self-serving proclamation does little to advance or clarify the debate over how best to mitigate the corrosive impact that online piracy (for profit) has on artists.
Next time CEO Bewkes should choose his words more carefully and explain that for HBO, the popularity of Game of Thrones is a measure of success that helps generate buzz that’s good for business–but that it’s important to differentiate between their distribution landscape and the one faced by so many others.
If he feels his words were misconstrued (webcast available here) he should clarify his remarks sooner rather than later for the sake of those whose livelihoods do suffer because of unchecked online theft.
by Ellen Seidler | Copyright, Piracy, Politics, Tech
Testimony from copyright hearing highlights what’s at stake for content creators
On Thursday (July 25th) the House Subcommittee on Courts, Intellectual Property, and the Internet held another hearing on copyright reform, “Innovation in America: The Role of Copyrights,” with the following witness invited to testify:
- Sandra Aistars, Executive Director, Copyright Alliance
- Eugene Mopsik, Executive Director, American Society of Media Photographers
- Tor Hansen,Co-Founder, Yep Roc Records / Red Eye Distribution
- John Lapham, General Counsel, Getty Images
- William Sherak, President, Stereo D
Unfortunately, to some in the press–who the witnesses were seems to have overshadowed what they may have actually said. In The Washington Post Andrea Peterson bemoaned the lack of “innovators” on the witness list.
Innovators are almost entirely absent from the list. The witnesses include the executive directors of the Copyright Alliance and the American Society of Media Photographers, and the general counsel of Getty Images. These groups represent established copyright interests that are likely to resist any serious reforms to copyright law…Completely absent: representatives from the information technology industry, whose innovations have transformed the market for copyrighted works over the last two decades, and who have repeatedly argued that overly-broad copyright law has stifled innovation.
Since Ms. Peterson covers technology policy and “…also delves into the societal impacts of technology access and how innovation is intertwined with cultural development” for the Post, I find it curious that she never actually wrote about what took place at the hearing itself. Couldn’t she at least have read the transcript or watch the webcast and “delve” into what was actually said rather than simply complain about the witness list?
At the end of her not very informative piece Ms. Peterson noted that there’s another hearing scheduled for next week that seems likely to be heavily tech-centric so I’m not sure why all the fuss (and headline) to begin with. According a press release issued by the committee on July 18th “The next two hearings, which will be held prior to the August district work period, will focus on the positive roles copyrights and technology play in innovation in the U.S.”
Given that the committee’s initial hearing in May featured academics and bureaucrats it seems that their grouping of witnesses has been purposefully crafted to represent distinct segments of the copyright interest group pie. While one can certainly take issue with this rigid approach, it’s not as though the technology “industry” will be left out.
As for Peterson’s assertion that yesterday’s panelists represented “established copyright interests” and thus didn’t genuinely represent “innovators,” I beg to differ. It’s the same old unenlightened spin (often amplified by tech interests) that somehow content creators are not innovators. For anyone who did actually watch or read the yesterday’s testimony, this myth that was repeatedly and effectively challenged.
The Copyright Alliance’s Sandra Aistars may not be a creative artist, but she represents our interests with clarity and conviction. In her testimony before the committee she carefully outlined just how important copyright protection is for individual creators and the insidious damage piracy (for profit) is having on our livelihoods:
Eric Hart, a maker of theatrical props and author from Burlington,North Carolina,recently shared his challenges with us. Earlier this year, after several years of researching,writing and assembling all the necessary technical information, including setting up and shooting more than 500 illustrative photographs, Eric’s first book The Prop Building Guidebook: For Theatre, Film, and TV was published by Focal Press. The book is a unique, comprehensive reference for prop makers that provides innovative approaches to solving problems. Special attention was paid to the details of its design and layout to ensure that it can easily be used in a workshop. Unfortunately, but not surprisingly, it was pirated almost immediately upon its release, and many of the sites on which it appears are supported by advertising by major brands.
Mr. Hart himself published an op-ed in The Hill to coincide with yesterday’s hearing. In his piece, “The Need for Copyright Protection Hits Home” he described the time and effort he put into publishing his book:
While my book, titled The Prop Building Guidebook: For Theatre, Film, and TV, was published earlier this year, I first started planning and researching it in 2008. I began a blog a month later in January 2009, to practice my writing and build an audience. But nothing could have prepared me for the amount of work it would take to craft a full book. I worked nearly every day for a year to complete the manuscript but still felt like I could have used more time.
He then goes on to relay an experience (sadly) familiar to those of us who create content–how his work was immediately pirated (for profit) online and asks that Congress be mindful just how important copyright is in protecting our rights as creators:
While we do have laws intended to protect creators like me, we seem to live in a culture that pretends piracy has no real victims. It’s important to remind everyone the amount of work that goes into the creative works that are so useful and valuable to us. I only wrote a single book, but there are those who devote every day of their lives to writing and creating, and they will not be able to do that if their work is not protected from those who decide to give away those works for free without the creator’s permission. When we devalue the creative work, we are devaluing the act of creation and the act of working, both of which are vital to a free and prosperous culture.
Ms. Aistars went on to urge the committee to evaluate copyright from the creator’s perspective and to understand it as being 1) a matter of “empowerment,” 2) a matter of “choice,” and 3) a matter of “freedom.”
First, copyright is about empowerment. A copyright belongs to the author from the time a work is created and recorded in some tangible form, regardless of whether the author has registered it or taken any formal action. A copyright may be the only asset the author has in a negotiation with a distributor, label, or other corporation. It opens the door for an economic negotiation. If you weaken copyright or make it harder for the author to obtain or maintain its protections, you weaken the author’s negotiating position, as well as the value proposition for the distributor.
Second, copyright is about choice. Because copyright exists in a work and belongs to the author from the time the work is recorded, it enables the author to choose what he or she wishes to do with it. She can use a work in multiple ways simultaneously. She can license the use of the work commercially to support herself and continue investing in new projects, while also making the work available for free to other non-commercial users to support a cause she believes in. These choices allow for a broader variety of business models to develop,which increases healthy competition among innovators and benefits consumers.
The author can also choose not to license his or her work in certain circumstances. Sometimes the non-economic choices an author makes by enforcing a copyright are the most important ones. Matt Herron, a civil rights era photographer who we work with explained to me once that the reason copyright matters to him so much is that it enables him to keep his collection of photographs of the Selma to Montgomery march together, and it ensures that the history of that period will be passed down to future generations as a coherent whole — without images missing because they are controlled by someone else, and without images having been devalued because they were licensed for commercial purposes.
Finally, copyright is about freedom. It is core to protecting our First Amendment rights of freedom of expression. It also gives authors the freedom to create and to thrive, and the freedom to create free from outside influence. “Asthe founders of this country were wise enough to see, the most important elements of any civilization include its independent creators – its authors, composers, and artists –who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy.”7
Eugene Mopsick, who himself worked as a professional photographer for 32 years before becoming Executive Director of ASMP, also emphasized the importance of copyright for individual creators in his testimony:
ASMP is the oldest and largest trade association of its kind in the world. ASMP’s members are primarily freelance imaging professionals, creating images — both still and moving — for publication in advertising, editorial, fine art and other commercial markets.
Simply put, ASMP’s members and professional photographers like them create many and probably most of the images that the American public sees every day: they create this country’s visual heritage. These images communicate the horrors of war and genocide, “the thrill of victory and the agony of defeat”, the events of every day life and the joy of discovery and travel. They create emotion, document history, and expand our knowledge. Much of the incentive to create, innovate and the ability to control the sale and license of these works would be lost without copyright.
Imagine National Geographic, The Sunday New York Times and its Magazine, Rolling Stone, Travel and Leisure, Food and Wine, Saveur, Sports Illustrated all without photographs! And not just any photographs, but photographs created by professionals to fulfill the needs of their clients, created under various conditions, on schedule, processed and prepared for reproduction. Stunning images that consistently stretch the bounds of creativity and innovation. Each assignment is a challenge to create something new, never seen before. Communicate light, emotion, the facets of a commercial product, the history and location of an event. Professional photography enriches and opens our eyes to new worlds making us better informed and more sensitive to the issues and conflicts occurring around us…
…Again, in order for professionals to be able to sustain a livelihood, they need to be able to control the sale and license of their works so that they may receive fair compensation for their use. Copyright is the cornerstone of this equation.
Although it’s not helpful to the copyleft’s arguments justifying their views on “free culture”, the truth is that whether we’re talking about a Los Angeles production company employing hundreds of workers, or an independent author who toils on his own to write a book–copyright law is fundamental to the well-being of both. Like it or not, culture is not “free” to create. I thought Sandra Aistars and the rest of those who testified made that fact abundantly clear. It’s well worth taking the time to read through their testimony.
In contrast, and apparently based solely on the witness list, Ms. Peterson likened yesterday’s hearing to one held for the Stop Online Piracy Act (SOPA) though remarked that hearing “at least it included a representative from Google opposing the measure.”
While I’m not privy to who will be invited to next week’s hearing, I have no doubt that Google’s interests will be well represented. After all, the company isn’t expanding its presence Washington D.C. and moving closer to the U.S. Capitol for nothing. Just last week the Washington Post reported:
Google is expanding its Washington offices and relocating them to within a couple blocks of the U.S. Capitol.
The tech giant signed a lease for 55,000 square feet at 25 Massachusetts Ave. NW, according to the building’s owner, Republic Properties. The building is about a block away from Union Station. The lease is for about 25,000 more square feet than Google currently has at 1101 New York Ave. NW.
The technology sector is one of the few industries in the Washington area in which companies are currently growing and adding space.
How does that old story go?
Little Red Riding Hood: “Oh granny, what big eyes you have!”…
Big Bad Wolf: “All the better to see you with my dear….”
We all know how that one ended up….
by Ellen Seidler | Copyright, Film, Law, Music, Piracy, Politics, TV
David Kaplan, head of Warner Brother’s anti-piracy unit made news this week in Los Angeles at the 4th Anti-Piracy and Content Protection Summit. According to a Q & A with Kaplan posted on the event’s website, he characterized the studio’s approach to IP enforcement this way:
Generally speaking, we view piracy as a proxy of consumer demand. Accordingly, enforcement related efforts are balanced with looking at ways to adjust or develop business models to take advantage of that demand by offering fans what they are looking for when they are looking for it.
Of course this makes sense. Piracy apologists often attempt to rationalize the dubious notion that consumers are entitled to have everything available–anytime, anywhere– by charging that obsolete distribution models are a sign that distributors are ignoring audience demand.
However, it’s not as simple as it may seem. The reality is that it takes time to build new business methods–and meanwhile, in the thriving universe of digital theft–as is true with most black markets–the pirate’s model has never been constrained by such “trivial” issues as contracts, licensing, budgets, or the law.
In an ideal world filmmakers would be able to release their films to worldwide audience simultaneously. With models like day and date release finding success, it’s likely such an approach will someday become the norm.
But…even when that day does arrive, the other elephant in the room remains-Will consumers be willing to pay instead of going to pirate sites that offer fast and free options with the click of a mouse? Finding efficient ways to meet audience immediate demand only solves one piece of the piracy puzzle. The other is how to thwart the black market entrepreneurs who compete directly with legit distributors? Remember–profit comes easy when a business has little, to no overhead costs associated with the content it offers.
Kaplan sees this issue as a “top priority.”
I think our top priority would be to remove the financial incentives from
those who would profit by building businesses based on the unauthorized exploitation
of our intellectual property. A close second would be educating consumer about the
importance of IP protection and the availability of legitimate alternatives to piracy.
I’ve said it before –if the financial incentives to run pirate websites disappear, and popular content made readily available through legit channels, piracy’s impact will diminish. The problem remains–how do we get there? At a time where content creators are adapting to online distribution, ad providers, search engines, web hosts, and payment processors continue to drag their feet when it comes to making real inroads against infrastructure and incentives that underpin digital piracy.
n the White House’s just released “2013 Joint Strategic Plan on Intellectual Property Enforcement” the word “voluntary” appears 36 times including this statement:
The U.S. Government is pursuing an innovative and multi-pronged strategy to combat infringing foreign based and foreign-controlled websites by encouraging cooperation by law enforcement, development
of voluntary best practices, and international leadership…
The White House document also offers this carefully worded prescription as one path forward combatting IP theft online:
22. Facilitate Voluntary Initiatives to Reduce Online Intellectual Property Infringement and Illegal Internet Pharmacies
As an Administration, we have adopted the approach of encouraging the private sector to develop and implement cooperative voluntary initiatives to reduce infringement that are practical and effective. It is critical that such efforts be undertaken in a manner that is consistent with all applicable laws and with the Administration’s broader Internet policy principles emphasizing privacy, free speech, competition, and due process. Together with law enforcement efforts, private sector voluntary actions can dramatically reduce online infringement and change the enforcement paradigm. We encourage all participants to continue to work with all interested stakeholders, including consumer advocacy groups, to ensure that voluntary initiatives are as effective and transparent as possible.
It’s great to think that we can all reach a consensus to combat the scourge of piracy through “cooperation.” However, the fact is there’s still a very long way to go. Until ad providers, advertisers and companies like Facebook and Google, whose tentacles reach far and wide throughout piracy’s infrastructure, get serious about cleaning up the act all this talk about “voluntary” initiatives is just talk.
The fact is, when it comes to profiting from online piracy, money speaks louder than words. It may just take a bit more “law enforcement” to make those responsible pay attention and take meaningful action to clean up their acts.
by Ellen Seidler | Copyright, Law, Piracy, Politics
The White House has released its 2013 strategic plan for intellectual property enforcement. The document is 35 pages long and outlines progress that’s been made since 2010 and goals moving forward. Included in the report is a letter to the President and Congress from Victoria A. Espinel, U.S. Intellectual Property Enforcement Coordinator, who summaries the findings and outlines progress made since the last report in 2010 which includes:
• U.S. law enforcement has significantly increased its enforcement against infringement that threatens the vitality of the U.S. economy and the health and safety of the American people. Since FY 2009
- − U.S. Immigration and Customs Enforcement (ICE)-Homeland Security Investigations (HSI) new cases are up 71 percent, arrests are up 159 percent, convictions are up 103 percent, and indictments are up 264 percent.
- − Pending Federal Bureau of Investigation (FBI) health and safety-focused investigations are up 308 percent, FBI health and safety arrests are up 286 percent, and new trade secret theft cases are up 39 percent.
- − Customs and Border Protection (CBP) and ICE seizures of infringing imports have increased
- by 53 percent.
• Private sector companies have voluntarily agreed to adopt best practices aimed at curbing the
sale of counterfeit goods and reducing online piracy. For example:
- − American Express, Discover, eNom, Facebook, Go Daddy, Google, MasterCard, Microsoft, Neustar, PayPal, Visa, and Yahoo! established the Center for Safe Internet Pharmacies—a new non-profit to combat fake online “pharmacies” selling dangerous illegal drugs over the Internet.
- − AT&T, Cablevision, Comcast, Time Warner Cable, Verizon, and major and independent music labels and movie studios entered into a voluntary agreement to reduce online piracy. Under the agreement, Internet Service Providers (ISPs) will notify subscribers, through a series of alerts,when their Internet service accounts appear to be misused for infringement on peer-to-peer networks.− American Express, Discover, MasterCard, PayPal, and Visa agreed to a set of best practices to withdraw payment services for online sales of counterfeit and pirated goods.
- − The Association of National Advertisers and the American Association of Advertising Agencies issued a leadership pledge to not support online piracy and counterfeiting with advertising revenue.
I’m particularly interested in reviewing what said about the efficacy of the private sector’s “voluntary…best practices” approach to see what progress has been made, and whether it jibes with what’s really happening online with regard to piracy, counterfeiting, etc. I’ll more on my thoughts once I’ve had the opportunity to review the entire report.
by Ellen Seidler | Copyright, Law, Politics
Terry Hart takes the EFF to task for their misleading take on copyright history
Copyhype blogger Terry Hart wrote a thoughtful response yesterday to an post on the Electronic Frontier Foundation’s blog by Mitch Stoltz that purported to be analysis (and rebuttal) of what he called the MPPA’s “copyright agenda”. The piece published Monday was in response to MPAA CEO Chris Dodd’s recent remarks at a L.A. Copyright Society event earlier this month. Dodd said:
What would Jefferson think about the current state of copyright law?
First, the men who met in Philadelphia during that summer of 1787 and drafted the Constitution, considered copyright so important to unlocking the creative potential of the citizens of this new country, that they explicitly empowered Congress to incentivize creativity through patent and copyright legislation.
According to Stoltz’s EFF’s piece, the MPAA chief got it wrong.
Dodd claims that copyright as we know it is what “the founders of this republic intended.” Hardly. The first copyright act in the U.S, passed in 1790 by some of the same people who helped write the Constitution and the Bill of Rights, was very limited. It covered only books, maps, and charts – not music, theater, pamphlets, newspapers, sculpture, or any other 18th-century creative medium. The Founders’ copyrights lasted 14 years, with an option to renew for another 14. Today, of course, copyright covers nearly all written, visual, sculptural, architectural, and performing art, not to mention computer software and games, and it lasts for the author’s life plus 70 years. We suspect that if anyone had described today’s copyright system to, say, Thomas Jefferson, he would have been shocked. By all means, let’s look at how the Founders thought copyright should work, as one guidepost for fixing today’s law.
But according to Terry Hart, in this case, it’s really the EFF that got it wrong by conveniently ignoring the complete copyright picture as it’s evolved over time:
What’s curious is that the EFF would focus so much on the provisions rather than the principles of early U.S. copyright law (never mind how incorrectly they stated the former) yet leave out so many provisions in current copyright law that the early acts lacked. For example, the 1790 Copyright Act included no statutory recognition of fair use, the first sale doctrine, or the idea/expression dichotomy; no prohibition on protecting government works by copyright;13 no exceptions for libraries, educational institutions, or non-profit groups; no centralized registration system or deposit requirement.
The grave inaccuracies contained in just a few short sentences should leave little surprise that the EFF is on shaky ground concluding that their views on copyright would be compatible with the Founders…
You can read Hart’s full piece here. It’s well worth it if you’re looking for a more balanced perspective on what the true intent of our founding fathers may have been when it comes to copyright.
by Ellen Seidler | Copyright, Law, Piracy, Politics, Tech
It’s no coincidence that Google’s attempting to grab the tech news headlines with blog posts this week trumpeting the company’s ongoing efforts to fight the scourge of online child porn and illegal pharmacies. Google’s links to illegal and unsavory activities is long established, but with increased public scrutiny thanks to the NSA snooping stories and declarations like that of Mississippi Attorney General Tom Hood asserting Google’s search aids online criminals, it seems that Googleiath’s powers that be felt the time had come for some much-needed reputation burnishing.
And so, this week we have not one, but two new Google blog posts that are designed to grab the news cycle and put the Silicon Valley giant in a more favorable light. Never mind that most of it’s really just old news repackaged to fit their latest PR campaign. The first PR blast came Saturday via this post, trumpeting Google’s role in the battle against child pornography online.
Google has been working on fighting child exploitation since as early as 2006 when we joined the Technology Coalition, teaming up with other tech industry companies to develop technical solutions. Since then, we’ve been providing software and hardware to helping organizations all around the world to fight child abuse images on the web and help locate missing children.
There is much more that can be done, and Google is taking our commitment another step further through a $5 million effort to eradicate child abuse imagery online. Part of this commitment will go to global child protection partners like the National Center for Missing & Exploited Children and the Internet Watch Foundation. We’re providing additional support to similar heroic organizations in the U.S., Canada, Europe, Australia and Latin America.
Since 2008, we’ve used “hashing” technology to tag known child sexual abuse images, allowing us to identify duplicate images which may exist elsewhere. Each offending image in effect gets a unique ID that our computers can recognize without humans having to view them again. Recently, we’ve started working to incorporate encrypted “fingerprints” of child sexual abuse images into a cross-industry database. This will enable companies, law enforcement and charities to better collaborate on detecting and removing these images, and to take action against the criminals. Today we’ve also announced a $2 million Child Protection Technology Fund to encourage the development of ever more effective tools.
While it goes without saying that any effort to battle child pornography is laudable, and it’s great that the company is “making news” by donating 2 million more to the cause, but in my (cynical) view this donation appears to not to be driven by altruism, but is more likely born from a not-so-subtle desire to rub elbows with “heroic” organizations and in order to generate positive media buzz for a company facing increasing criticism over its handling of privacy and piracy/counterfeiting issues. Google’s assertion that it employs “hashtag” technology to identify and block offending imagery also raises the question as to why they can’t do more to prevent pirated content from appearing in their search results? Oh, but I digress….
Then today, the Google PR machine was back in action with this post outlining supposedly ongoing efforts to battle illegal (rogue) online pharmacies also appears to be part of their efforts to burnish their increasingly tattered reputation:
For the last several years, Google has worked closely with a number of organizations, government agencies, and businesses to combat rogue online pharmacies from all angles.
Collectively, we are making it increasingly difficult for these operators to effectively promote their rogue pharmacies online. A variety of websites and web services are refusing ads from suspected rogue pharmacies. Domain name registrars are removing suspect rogue pharmacies from their networks. Payment processors are blocking payments to these operators, and social networking sites are removing them from their systems too.
Again, there’s nothing “new” here, really just the same old, same old. It’s also particularly ironic to see Google patting itself on the back for behavior that has not been voluntary. Wasn’t Google the company that in 2011 paid the feds a
half a billion dollar settlement to close a Justice Department investigation into its role in serving and profiting from illegal pharmacy ads. How does that jibe with them combatting
“rogue online pharmacies” for the
“past several years?”Oh, and just a week ago the company was
called out by Mississippi’s attorney general Jim Hood who asserted:
Google’s search engine gave us easy access to illegal goods including websites which offer dangerous drugs without a prescription, counterfeit goods of every description, and infringing copies of movies, music, software and games.
If Google is doing such a great job, why hasn’t anything really changed? When will enough be enough? How long can the company keep tap dancing around land mines before it’s forced to reckon with the fact it enables and profits from a plethora of illegal, online enterprises? If technology can be used to battle child pornography, why not employ it to battle other illegal online activities?
There are plenty of examples of Google enabling and profiting from online crime. I outlined some in a blog post earlier this year, “Chronic, Ill-Gotten Gains–Google’s Web of Piracy Profit” and have also written others:
