by Ellen Seidler | Copyright
Once again, EFF pulls out the piracy as “free speech” mantra
When it comes to the EFF and piracy, it’s kind of like the movie Ground Hog Day….same thing over and over and over again. As such, it was no surprise this week when the EFF’s Mitch Stoltz—-displaying typically knee-jerk EFF form, published a blog post decrying this week’s announcement that the MPAA and top-level domain registrar Donuts had reached a voluntary partnership to “reduce online piracy.” Of course, when it comes to the EFF, there’s no middle ground, and any effort to combat piracy is always met with the same, tired talking points.
While there’s little debate that protecting “free speech” online is important, the EFF routinely makes a point of muddying the waters so as to push its own misguided agenda of absolutism. According the its political playbook–any effort made to fight online piracy–warrants conflating “theft” with “speech” in all communiqués on the subject. Of this most recent agreement, Stoltz dutifully warns:
Taking away a website’s domain name means interrupting all of the speech that takes place on that site. It creates a much greater danger of censorship than suppressing individual pages or files.
To the EFF piracy = free speech
Ah yes, he pulls out the crumpled “censorship” card…Last time I checked, websites in the business of piracy for profit don’t offer any speech worth protecting, unless of course, phrases like “free download” or “watch free” fit the bill.
As I noted in a post earlier this week, many pirate websites don’t provide DMCA contact information. Creators who find their work illegally posted there have little recourse but to turn to web hosts and/or domain registrars for relief. If a site truly offers visitors worthwhile “speech,” why hide? Why not provide a legit contact email? Because there’s nothing legit about it. They’re engaging in criminal activity and they know it.
According to EFF rules, any website that exists, save for maybe those trafficking in child porn, should be allowed to operate unimpeded by the rule of law. Essentially, as far as the EFF is concerned, piracy should be considered a protected form of speech. Shutting down pirate sites would censor the rights of criminals, don’t cha know?
The fact is these sites–often rife with malware and explicit ads–have nothing to do with speech and everything to do with making a buck off the backs of others. Doesn’t it cheapen the concept of “free speech” when it’s disingenuously used as an excuse to shield criminal sites from the consequences of illegal activities? What exactly is it about profiteering pirate websites that makes them worthy of protection under the mantle of “free speech?” The answer–absolutely nothing.
Another argument found in the EFF playbook, along with piracy = protected speech refrain, is the slippery slope excuse. Stoltz makes use of this tattered canard as well:
The danger in agreements like this is that they could become a blanket policy that Internet users cannot avoid. If what’s past is prologue, expect to see MPAA and other groups of powerful media companies touting the Donuts agreement as a new norm, and using it to push ICANN and governments towards making all domain name registries disable access to an entire website on a mere accusation of infringement.
Insert sound of ominous drumbeats here. True to form, the EFF doesn’t shy away from hyperbole and histrionics to advance its agenda.
Stoltz’s warning of dire consequences comes despite the fact there’s nothing in the agreement that could be construed as allowing the disabling of access to an “entire website” based solely on a mere “accusation of infringement.” Stoltz attempts to massage his argument by pulling a truncated quote from Torrent Freak:
According to the website TorrentFreak, this will make MPAA “the definitive authority on what is considered a large-scale piracy website.” This raises the risk of a website losing its domain name, or having it co-opted, without a court judgment or other legal process. [emphasis added]
Well, not quite…though it makes for a good talking point, in reality the process is a tad more complex than he would have us believe. Torrent Freak’s analysis by Andy is actually quite balanced, and the paragraph Stoltz pulls a quote from should really be read in its entirety to appreciate its true context:
Under the agreement the MPAA will be granted “Trusted Notifier” status, i.e. it will become the definitive authority on what is considered a large-scale piracy website. Sites that are subsequently found to be breaching Donuts’ terms and conditions will either have their domains suspended or put on hold.
“This is a groundbreaking partnership and one we’re proud to undertake,” says Donuts Co-Founder and Executive Vice President Jon Nevett.
How convenient to omit the second sentence as well as additional details as to what “subsequently found to be breaching” actually means.
Remember, this is a “partnership” that both the MPAA and Donuts agreed to. If the MPAA has been given “Trusted Notifier” status it’s because Donuts has given the OK. This status also comes with a myriad of strings attached.
A number of safeguards have been established to prevent the very alarmist scenario Stoltz warns of. Like other online service providers, Donuts has a “terms of service” and as such, has the right to assess whether a site has broken those terms, no court judgment required. It’s also worth noting that Donuts will also investigate the allegations before taking any final action against a site: According to terms of the agreement:
…If Donuts is satisfied that the domain clearly is devoted to clear and pervasive copyright infringement, Donuts may, in its discretion and as permitted under its Acceptable Use and Anti-Abuse Policy, suspend, terminate, or place the domain on registry lock, hold, or similar status as it determines necessary to mitigate the infringement…
Reading the various checks and balances outline via Torrent Freak, the multi-step process seems thoughtful and fair to both sides. Of course, it’s not a process that requires litigation, but certainly appears to be within the bounds of what’s allowed by law. There’s also nothing preventing site operators from taking the issue to court, though it’s doubtful that any–known for scattering like a cockroach when a light is shone on their activities–will avail themselves of that option. Indeed, though the agreement may not be to the EFF’s liking, one assumes its been carefully vetted by attorneys for both Donuts and the MPAA.
The MPAA will also have to do its research before initiating any move against a site. As Torrent Freak noted in its analysis:
the MPAA is required to fulfill several criteria, including that any complaint filed with Donuts is authorized by its members. The movie industry group is then expected to provide evidence of “clear and pervasive copyright infringement” on the domain in question while indicating which laws have been violated.
…before contacting Donuts the MPAA will have to do additional preparatory work, including alerting both the site’s registrar and hosting provider to the alleged problems. While providing Donuts with the details of the discussions, the MPAA will be required to indicate why these failed to stop the alleged infringement.
Of course, examining the agreement’s actual (rather than imaginary) language provides an inconvenient truth not in line with EFF talking points. The organization’s public posture has always been rigid, and its analysis myopic–if not fabricated outright–when it comes to assessing any reasonable efforts to reduce online piracy.
In furthering his criticism of the voluntary agreement between the MPAA and Donuts, Stoltz sees ulterior motives, this despite the numerous safeguards in place to prevent abuse, including human review of forwarded complaints. According to Stoltz:
…Donuts may have business reasons for bowing to MPAA’s demands, such as encouraging the major studios that make up MPAA to buy lucrative domains in the .movie space.
It’s yet another predictable red herring. It’s a no-brainer that, deal or no-deal, movie studios are likely to purchase .movie domains if it’s thought to be in their best (business) interests to do so. On the other hand it makes total sense that Donuts, as seller of the .movie domain, may well want to ensure that its products–assorted top-level domains–don’t become cesspools of criminal activity. Isn’t that just a good business practice?
For the EFF, “compromise” is a dirty word
Speaking of business, this agreement provides yet another example of voluntary efforts among the business and tech industries to find a path forward that respects the interests of both. We’ve seen similar efforts among advertisers working with the creative industry to stop the flow of ad money to pirate sites. Another example of this trend were the recent House Judiciary Committee copyright “listening tour” roundtables where the perspectives of “a wide range of creators, innovators, technology professionals, and users of copyrighted” were heard.
Despite ongoing efforts by many to bridge the gaps and find consensus on ways to find workable solutions to issues like online piracy, the EFF seems committed to the position that finding “compromise” is an untenable approach. The organization routinely targets any–and all– attempts to tame bad behavior in the Wild West corners of today’s internet. No matter whether legislative initiatives or stakeholders developing voluntary best practices, the EFF response is always a resounding, “NO!”
The EFF’s response to any progress made to safeguard online commerce resembles ‘Chicken Little’s’ Henny Penny. It’s an act that’s growing old. Perhaps it’s time the EFF to take a page from The Day No One Played Together instead.
There is common ground to be found, if only we are willing to look. The agreement between the MPAA and Donuts may well provide a good blueprint for where we can begin.
by Ellen Seidler | Copyright
Another ally joins the war against online pirates
The battle against online piracy has been fought on many fronts, and today came news that another had opened with the announcement that the Motion Picture Association of America (MPAA) and Donuts, a the largest registrar for the new domain extensions have come to an agreement to thwart online piracy. The development is good news for creators of every stripe.
The agreement outlines ‘best practices’ in dealing with sites reported as being “large-scale” pirate operations:
Under the terms of the agreement, the MPAA will be treated as a “Trusted Notifier” for the purpose of reporting large-scale pirate websites that are registered in a domain extension operated by Donuts. The agreement imposes strict standards for such
referrals, including that they be accompanied by clear evidence of pervasive copyright infringement and a representation that the MPAA has first attempted to contact the registrar and hosting provider for resolution.
The agreement specifies that Donuts will work with registrar partners to contact the website operator and seek additional evidence. If Donuts or its registrar partner determines that the website is engaged in illegal activity and thereby violates Donuts’ Acceptable Use and Anti-Abuse Policy, then they, in their discretion, may act within their already established authority to put the infringing domain on hold or suspend it.
An agreement like this is particularly significant because, in many cases, operators of pirate websites simply ignore
DMCA takedown notices. Just yesterday I was forced to send a DMCA notice via GoDaddy because the pirate website (which offered dozens of illegal movie streams) offered no contact information nor DMCA takedown mechanism on its website.
When I did a
WHOIS search I discovered that the domain is registered through
GoDaddy and the server is operated by
Cloudflare, both companies headquartered in the U.S. The contact information for the owner of the pirate site is to private–hidden by
domainsbyproxy—so the only emails listed were through (domain-name)
@domainbyproxy or
[email protected]. GoDaddy claims it will
take action against customers who don’t respond in a timely fashion to DMCA complaints:
Please be aware that if we receive a complete DMCA claim concerning content on an account you host, and you do not act quickly to resolve the issue, it might be necessary for us to disable access to your hosting account to remain in compliance with the DMCA.
Unfortunately, we can’t suspend your customers’ individual hosting accounts. To comply with DMCA, our only option is to suspend the entire Reseller Hosting account, including all of the customers’ accounts it supports.
Safe-guarding one’s work online is a daunting task so having domain registrars cooperate in the process is crucial, and while there are plenty of pirate sites that use registrars outside the bounds of U.S. law, today’s announcement seems is another nail in coffin for pirate profiteers. As Donuts Co-Founder and Executive Vice President Jon Nevett notes:
This is a groundbreaking partnership and one we’re proud to undertake. Donuts, as the operator of .MOVIE, .THEATER, .COMPANY and almost 200 other domain extensions
is committed to a healthy domain name environment and this is another step toward a safe and secure namespace.
Slowly, like a boa constrictor squeezing its prey, the blood supply feeding the ‘business’ of online piracy is being clamped. As various entities–advertisers, ISPs, domain hosts–continue to cooperate and work to adopt ‘best practices’ against online piracy, the eco-system that gave rise to an explosion in unfettered piracy finally appears to be crumbling.
That doesn’t mean more battles don’t lie ahead. Just this week
came news of a plugin that allows users to stream torrents directly on torrent sites like The Pirate Bay. But for now–I’ll take this announcement as a victory–and a further sign that the tide is gradually turning against those who profit from piracy by stealing the work (and livelihoods) of others.
by Ellen Seidler | Copyright, Photography
Respecting and Protecting Embedded Photo Metadata should be a priority
The relationship between the tech industry and content creators off all stripes has long been strained when it comes to the issue of protecting copyright. Whether it’s asking Google to do a better job excluding search results that lead to pirated content, or demanding that Facebook take action against ongoing “freebooting” of videos, conflicts over copyright continue to fester.
Given that Silicon Valley’s best and brightest seem adept at developing new ways of sharing (and appropriating) content to generate billions in profit, one has to ask–why not apply some of that technical wizardry to better tackle digital content theft?
There have been some examples of technology being used to effectively thwart theft– YouTube’s Content ID System being perhaps the most obvious example. While certainly far from perfect (that’s a whole other story) YouTube’s CMS system does provide rights holders with a technological tool to safeguard their video and/or audio on YouTube.
Click image to go to IPTC
Social Media Sites Photo Metadata Test Results
Moving to other forms of online sharing, the picture is not quite so encouraging. Take a look at various social media sites for example. Sharing photos is a popular and growing, trend worldwide. Fine, if the photo you want to share is your own–but what about all those photos that are copied and posted without permission?
While it’s impossible to prevent–there are ways social media companies could do a better job ensuring that the copyright information (embedded as metadata) is protected upon upload. This embedded information not only provides credit to the originator of the work and other relevant details about the photograph, but also provides the creator with a means of tracking its use online.
The International Press Telecommunications Council (IPTC), an association of more than 50 international news organizations, works to “simplify” global information distribution. Its mission is to develop and promote efficient technical standards to improve the management and exchange of information between content providers, intermediaries and consumers.
Social media sites are doing poor job preserving copyright metadata embedded in photos
Earlier this month the IPTC recently released a study which examined whether popular social media sites retain a photograph’s embedded metadata upon upload. The study mirrored one done in 2013 and the results are not promising.
Only one social media site, Behance, received favorable results for retaining and displaying embedded data. A few systems retained embedded metadata but failed to use it when displaying metadata on the web site. Ten sites removed at least some metadata when images were downloaded to a desktop environment.
Michael Steidl, Managing Director of IPTC, commented on the results:
If users provide captions, dates, a copyright notice and the creator within their images, that data shouldn’t be removed when sharing them on social media websites without their knowledge…The quality assurance of these sites might not be aware that their software strips metadata inadvertently.
Is it really inadvertent? After all, Silicon Valley develops technology that can do just about anything…but somehow, using technology to preserve metadata is beyond its capabilities? Somehow I doubt it.
David Riecks, a photographer and metadata consultant worked on the test for the IPTC. He offers a kinder, gentler response:
Because many of the social media sites are essentially free, users become the product, and not necessarily the customers…Users are often not aware of these practices. There should be a sweet spot between these social sites preserving all metadata and removing it all. I’d like to see more engineers working together to find solutions.
Time for Tech to take metadata protection seriously
The tech industry certainly has the wherewithal to implement metadata protection into its user’s social media workflow. So why doesn’t it? Probably because, as a sector that’s long flouted copyright in the name of innovation, leaving a trail of bread crumbs that identifies the actual creator isn’t in its best interests. Silicon Valley’s free pass allowing it to ignore creators’ rights should have expired long ago. Copyright and innovation need not be mutually exclusive concepts in our burgeoning digital eco-system.
While preserving metadata is a somewhat geeky concept, the topic should be as much a concern to creators as is piracy. If the tech industry is serious about pledges to protect copyright, it must be held accountable on this front.
The IPTC has developed an industry standard for embedded metadata and summarizes the data’s value this way:
In the online world there can be many copies of a single image or video file, and with millions of images or videos on the internet, metadata is essential for identification and copyright protection. We should ensure this metadata travels with the content as a digital label, and remains with it over its lifetime.
The metadata associated with an image or video can provide information about:
- Copyright and other rights associated with the image
- Contact information of copyright holders and licensors
- Image content
- Artworks, buildings and people portrayed in the image
- Search terms (keywords)
- Technical details of the photography
Rights restrictions for use of the image
- Rights granted under a licence to use
Metadata adds business value to the artistic value of any media content. Preserving it will help maintain the value of your business.
In 2011 an IPTC working group developed guidelines, the Embedded Metadata Manifesto, which describe best practices for embedding and preserving metadata in digital media files. From its website:
Photographers, film makers, videographers, illustrators, publishers, advertisers, designers, art directors, picture editors, librarians and curators all share the same problem: struggling to track rapidly expanding collections of digital media assets such as photos and video/film clips.
With that in mind we propose five guiding principles as our “Embedded Metadata Manifesto”:
- Metadata is essential to describe, identify and track digital media and should be applied to all media items which are exchanged as files or by other means such as data streams.
- Media file formats should provide the means to embed metadata in ways that can be read and handled by different software systems.
- Metadata fields, their semantics (including labels on the user interface) and values, should not be changed across metadata formats.
- Copyright management information metadata must never be removed from the files.
- Other metadata should only be removed from files by agreement with their copyright holders.
Preserving metadata for public domain images valuable too
The preservation of a photograph’s embedded metadata is also valuable for cataloging imagery available in the public domain. It was exciting news when the NY Public Library recently announced that more than 180,000 digital, high-resolution images would be made available for public use, downloadable via its digital collections site. In order to fully appreciate the collection, its worth understanding the great amount of effort that put into preparing the images for release. Librarians spent years digitizing various works and cataloging the images (using metadata).
Each image’s embedded metadata will not only link to the library’s catalog, but provide future generations an invaluable link to the history of each item. William Fenton explained the workflow in an article for PC Magazine, NYPL Digitized 187K Images, But That’s Not the Whole Story:
Digitization begins, but by no means ends, with scanning items. An atlas might travel from the maps division to the digital imaging unit, where photographers capture the highest-quality electronic representation. Then staff catalog, process, and physically relocate the item. The metadata services unit helps connect that data to the digital asset and to ensure the connections to the original cataloging record remain intact. Concurrently, the copyright and information policy group evaluates the atlas and attaches copyright information using something called a rights statement.
All that information—the digital asset, metadata, and copyright—travels to the applications development team, which creates the infrastructure that enables data to flow into an open-source repository called Fedora. That information is represented in the library’s Archives portal as well as the Digital Collections platform.
In a digital world increasingly overwhelmed by digital content, the need to preserve an image’s roots should be more valuable, not less so. Whether copyrighted, or in the public domain, more care needs to be taken to preserve embedded metadata in digital images so that the those who create them–and those who use them–can understand (and appreciate) where it all began. Metadata provides a crucial roadmap to this end. Just because it’s often hidden from view, that doesn’t mean it shouldn’t exist.
by Ellen Seidler | Copyright
Commerce Department white paper supports creation of copyright small claims process
Today the Department of Commerce Internet Policy Task Force (which includes the USPTO) released its long anticipated white paper on “Remixes, First Sale, and Statutory Damages–Copyright Policy, Creativity, and Innovation in the Digital Economy.” Among its findings is support for a copyright small claims process to adjudicate infringement claims. The Copyright Alliance issued a press release summarizing the report:
Remixes: The IPTF found that there was an insufficient record to support the creation of a compulsory license or a new exception for remixes uses and therefore rejected both ideas. The IPTF did recommend three goals to make it easier for remixers to understand when a remix use qualified as fair use and when a license was necessary.The IPTF found that there was an insufficient record to support the creation of a compulsory license or a new exception for remixes uses and therefore rejected both ideas. The IPTF did recommend three goals to make it easier for remixers to understand when a remix use qualified as fair use and when a license was necessary.
First Sale: The IPTF recommended that there be no changes to the first sale defense in section 109 of the Copyright Act.
Statutory Damages: Statutory Damages is the area where the White Paper suggests the most change. The Paper recommends three changes to the Copyright Act:
• Including a list of factors for courts and juries to consider when determining statutory damage awards;
• Expanding the innocent infringer standard to allow its application even when there is a copyright notice on the work; and
• Allowing courts to award damages on something less than a per-work basis in the case of online services offering large numbers of works.
Momentum for copyright small claims process is growing
Last, but certainly not least, the paper’s finding support a Copyright Office proposal issued in September of 2013 for creating a small claims process to adjudicate copyright claims outside the federal court system. This is particularly good news for independent filmmakers, musicians, authors, and the like who don’t have the deep pockets required to legally enforce a copyright claim. From page 99 of the white paper:
…the Task Force supports the creation of a streamlined procedure for adjudicating small claims of copyright infringement and believes that further consideration should be given to the proposal of the Copyright Office to create a small claims tribunal.581 The proposal would provide for a cap on awards of statutory and actual damages, limited discovery and counterclaims, assertion of all relevant defenses (including fair use), optional attorney representation, and awards of costs and fees against frivolous litigants.582 Among other features of the system suggested by the Copyright Office, participation in small claims proceedings would be voluntary and would be administered by a centralized tribunal in a single location.583 One recommendation of particular relevance to our review here is that the Copyright Office proposal would cap statutory damages awards on both a per work and per case basis.
I wrote about the need for some type of copyright small claims “court” last spring when Richard Prince* ripped-off Instagram artists, Instagram rip-offs by Richard Prince show why we need a small claims copyright court now. At the time I noted:
…establishing a small claims court where copyright claims could be heard would at least level the playing field a bit. Small creators would not have to sit idly as skunks like Richard Prince co-opt their work and make money at their expense. Obviously damages are limited in small claims court, but at least those whose work is stolen could seek redress and perhaps, collectively, turn the tide against this type of chronic theft.
This white paper is good news for the creative community as it appears that we may finally see real progress toward a viable copyright small claims process that would give indie artists a fighting change to defend their work from online opportunists.
As Copyright Alliance CEO Keith Kupferschmid noted in a statement released to the press.
“…in crafting copyright policy, we recognize that all interested parties must work together – including creative sectors, technology sectors, user groups and the public – as partners toward the same goal; and our collective goal is a thriving internet ecosystem that incentivizes creators to produce and disseminate new works to the public…
*I should note that the aforementioned Richard Prince is currently being sued copyright infringement in federal court by Donald Graham, an Instagram photographer. Graham filed suit on December 30th of last year.
by Ellen Seidler | Copyright, Film, Law, Piracy
More reliance on blockbusters means less diversity in film (graphic USC Annenberg)
Yes Virginia, piracy damages both the film industry and its audience
It’s that time of year again, when the piracy apologists pull out their annual canard that Hollywood’s profits provide proof that online piracy doesn’t hurt the film industry. It’s an assessment that found in this week’s post by Torrent Freak’s editor Ernesto, Pirates Fail to Prevent 38 Billion Box Office Record:
…the MPAA and other groups warn that hundreds of thousands of jobs are at stake, while the economy is losing billions due to piracy. Illegal downloads, they say, are slowly killing their creative industry.
Interestingly, these stark warnings are not reflected in last year’s box office revenues.
Recent numbers show that the movie industry just broke the magic $11 billion barrier, generating more revenue than ever before at the North American box office. The revenue for 2015 totals $11.3 billion, which is roughly a 9% change compared to last year.
The worldwide grosses also reached an all-time record according to research from Rentrak, which estimates the global grosses at a staggering $38 billion based on data from 25,000 theaters across the globe.
Looks like a no brainer conclusion right? Not so fast. While (most) Hollywood studios did make a lot of money in 2015, the truth conveniently omitted from the post in Torrent Freak is that they did so by producing fewer films. After all, the studios are in the business of making money for their shareholders and to that end–in this age of unchecked piracy–fewer chances can be taken on movies that won’t draw huge crowds. The Hollywood films that are being made are those that are sure bets to overcome digital theft and still make money. In 2015, the top 5 films made 20% of the revenue.
The studios have steadily been moving away from midsize movies and focusing instead on fewer, mega-budget movies. In 2006 the seven major studios combined made 187 films. In 2013 those same studios made only 139 films (a decrease of 26%). Those films generated $8.2 billion in 2006 and $8.8 billion in 2013 in real box office revenue domestically (an increase of 6%). More simply, fewer films are sharing more revenue.
…At the end of the day, if you’re a studio and looking to mitigate your overall financial risk, I guess it sort of does make financial sense stick with mega-budget films. So you have permission to greenlight Avatar v. Terminator v. Batman: The Oz Adventures!
This it’s important to drill down and examine the implications of this trend. Yes, Hollywood
shareholders may be doing OK, but with fewer films being produced, fewer people are employed in film production and audiences have fewer options when it comes to what they can see in movie theaters. There’s a reason that the majority of cineplexes across the land are filled with formulaic, big budget faire.
Strategically, the blockbuster approach involves “making disproportionately big investments in a few products designed to appeal to mass audiences,” Elberse explains. “Smart executives bet heavily on a few likely winners. That’s where the big payoffs come from.”“In the movie business, the product is the same price to the consumer regardless of the cost of manufacturing it—whether its production budget is $15 million or $150 million,” he told her. “So it may be counterintuitive to spend more money. But in the end, it is all about getting people to come to the theater. The idea was that movies with greater production value should be more appealing to prospective moviegoers.”
Fast fading are those lower budget films with limited audiences that carry more box office risk. As noted in an article by Flavorwire’s Jason Bailey, How the Death of Mid-Budget Cinema Left a Generation of Iconic Filmmakers MIA:
Back in the 1980s and 1990s, when Waters and Lynch were doing their most commercially successful work, it was possible to finance — either independently or via or the studio system — mid-budget films (anywhere from $5 million to $60 million) with an adult sensibility. But slowly, quietly, over roughly the decade and a half since the turn of the century, the paradigm shifted. Studios began to make fewer films, betting big on would-be blockbusters, operating under the assumption that large investments equal large returns. Movies that don’t fit into that box (thoughtful dramas, dark comedies, oddball thrillers, experimental efforts) were relegated to the indies, where freedom is greater, but resources are far more limited. As Mad Men’s Matthew Weiner put it, “Something happened that nobody can make a movie between $500,000 and $80 million. That can’t be possible.”
Let’s look at in another way. If studios didn’t have to deal with a business model predicated on minimizing the threat posed by online piracy it’s more likely more of these mid-budget films would be made. Film industry profits should not be considered poison–they provide the means to produce more, and potentially riskier films. By diminishing this flow of money to potential productions, piracy does indeed erode the overall health of Hollywood.
With more blockbusters comes less diversity
Academics analyzed the 100 top-grossing films for 2014 and found that none of of them, save for those with ensemble casts, featured a woman 45 or older. They found only three non-ensemble films that featured minority women.
The percentage of women in speaking roles has actually gone down since 2007, when about 30 percent of films featured speaking women, USC found. In 2014 that percentage is 28.1 percent. That’s about the percentage of films featuring women in sexy attire or at least partially nude. When it comes to men, that figure is 8 percent.
The report says “females function as eye candy” in top-grossing movies.
Women behind the camera aren’t likely to fare much better in an industry focused on the next great blockbuster either. According to research by San Diego State’s Center for the Study of Women in TV and Film independent films are where women find the greatest opportunity:
In 2014-15, women comprised 29% of directors working on documentaries and 18% of directors working on narrative features screening at more than 20 high profile film festivals in the United States. These figures stand in stark contrast to the percentage of women directing top grossing films in 2014 (7%).
Looking further at their research its safe to say that as Hollywood become more focused on tent-pole productions to generate profits, women are less likely to find opportunity. As budgets go up, opportunities go down.
SD State Center for Study of Women in TV and Film graphic
This lack of diversity extends beyond sex. According to the Annenberg Study:
The landscape of popular cinema in 2014 remains skewed and stereotypical. Across 700 films and over 30,000 speaking characters from 2007 to present, movies continue to distort the demographic reality of their audience. Film characters are overwhelmingly White and male, despite both population statistics and viewing patterns.
Employment trends behind the camera evidence a similar dearth of diversity. Only five Black directors helmed top movies in 2014, and women were underrepresented by a factor of 5.3 to 1 as directors, writers, and producers in 2014. Further, the 100 top films of 2014 featured no Asian directors. Despite activism, attention, and statements about addressing the issue, Hollywood’s default setting for characters and content creators remains fixed on “status quo.”
The “film industry” is more than just Hollywood
Per usual, piracy apologists as frame their pro-piracy arguments using a David vs. Goliath scenario with Hollywood being Goliath. Somehow the industry made to be the enemy because it deigns to defend the products it produces from theft. As part of their construct piracy-apologists propaganda that paint big bad Hollywood as an enemy, conveniently neglect to mention any filmmaking that takes place outside Hollywood. It’s a convenient omission, but one that undermines the credibility of their thesis that piracy is a victimless crime.
bfi.org.uk
Take film production in the United Kingdom, which boasts a film industry second only to that of the U.S. According to a British Film Institute (BFI) study released last month, UK film production, particularly in the lower budget range has actually fallen.
- The total filmed entertainment market in the UK in 2014 was worth an estimated £3.8 billion, down from £4.1 billion in 2013.
- Revenues across all platforms were down compared with 2013 except for digital video which recorded a rise of 35%.
- Gross revenues for UK film were an estimated £840 million, down from £895 million in 2013.
- The 2014 market down 26% from the peak. In real terms, film revenues in 2014 were the lowest since 2000.
An even more glaring omission comes with the refusal to acknowledge impact that piracy has on indie film production worldwide. For the Hollywood blockbusters, millions can be had via the box office, but for independent films with small or no theatrical release, revenue comes via the backend, DVD and digital distribution. This revenue has been shrinking for both Hollywood and independent producers, and for the latter, is crucial to paying off production debt and can be the difference-maker as to whether a filmmaker ever makes another film. It’s here where online piracy and legit sales really do compete head to head.
Smaller budget films are particularly dependent on this back-end income to recoup production costs. As I noted in an
blog post last summer:
Unlike those in Hollywood, indie filmmakers are not well-funded and often have to cobble together lean production budgets using a variety of sources from credit cards to crowd-funding. Without the deep pockets of the studios, these filmmakers often go deep into the red to create their not-so-mainstream films.
So, when it comes to assessing piracy’s damage, indie filmmakers, like their counterparts in music, are often the most vulnerable.
When indie filmmakers lose, so too do audiences
Given that unchecked piracy cannibalizes this much-needed income stream, online piracy does HURT the “film industry” and filmmakers like
David Ward who
described how online piracy undermined revenue for his film,
Balls Out, in a
Tumblr post:
I am writing this as a producer of the indie movie “
Balls Out” that was just released on June 19th in theaters and VOD. Immediately upon its release, it made its way onto all the top torrent sites in full HD quality. We’re not stupid, we knew that as soon as the movie was out it would be up to download for free online. What we didn’t expect was just how popular it would be on those sites. We’re one of the most pirated movies right now in terms of how many people are currently downloading, and seemingly the only independent film currently on the list… we have a very small theatrical release and have to count on VOD to make our investors’ money back…None of the filmmakers I know are getting rich doing this, they are doing it because they love making movies and entertaining people. It’s unbelievably hard to get any kind of movie made, let alone one worth watching, and if people don’t support the filmmakers doing original work then we’ll be forever stuck watching sequels and spin-offs and sequel spin-offs of tie-ins until the end of time.
Jean Prewitt, head of Independent Film and Television Alliance, puts piracy’s ultimate impact on film production even more succinctly in comments to
The Guardian:
What this means to the consumer is not that some producers don’t get rich, it means the product doesn’t get made.”
Let’s not forget that piracy’s cannibalization of back-end revenue streams has also played a hand in forcing Hollywood studios to make sure the movies they produce draw big at the box office the first few weeks in theaters. Markets that used to serve as a financial cushion for margins is no longer and while digital sales continue to grow, it’s logical to assume that piracy will continue to take a bite out the profit pie.
Of course those who support piracy see things differently. Torrent Freak’s Ernesto sardonically suggests that perhaps pirates should “up their game” if they really want to create havoc among those whose livelihoods depend on a healthy film industry.
That said, piracy has certainly not destroyed the movie business just yet. There are still plenty of people who are going to the movie theater to pay for their entertainment. Perhaps pirates should up their game?
But Piracy isn’t a “game”
Problem is, piracy isn’t a game and Hollywood isn’t an enemy. It isn’t David v Goliath. It’s not Robin Hood in Sherwood Forest. Piracy is theft. Piracy has victims. It’s a crime that takes a financial and cultural toll.
For those working in the film industry, it’s their livelihoods–and opportunity for advancement–at risk. For consumers, online piracy has quietly eroded both the number and diversity of quality movies to choose from.
So, when piracy apologists crow about Hollywood profits, look past headlines and cherry-picked facts and remember piracy incurs a cost we all pay for.
In the meantime, last time I checked, industries are allowed to (thrive) and make money off the products they produce. Why should Hollywood, or any other creative industry, not have the same right?
Ultimately piracy apologists try to rationalize and excuse morally dubious behavior by doing all they can to deflect and obscure the truth. This latest, routine round of headlines is more of the same.
