Google gets called out (again) for its laissez faire attitude on piracy

Google gets called out (again) for its laissez faire attitude on piracy

Google DMCA takedown liesIt’s a tired old tale, but one that bears repeating over and over again.  Google’s search engine is the go-to resource for those seeking pirated content online.  There’s a long line of Google critics, myself included, who decry the search giant’s defiant and arrogant attitude in response to requests that it modify its search engine to mitigate damage done to content creators by online pirates.

James Murdoch, co-COO of 21st Century Fox has added his voice to calls for change, speaking out at a TV conference in Cannes.  According to a report in The Guardian, Murdoch took issue with Google’s response to News Corp CEO Robert Thomson’s recent characterization of Google search as “a platform for piracy” in a letter sent to an EU commissioner.

“There’s no question that they can do more. A lot more. Certainly Google’s not right in saying they’re doing more than anyone. That just isn’t true,” he said.

“The problem with Google … Actually, let’s not personalize this. The problem with search-driven discovery, if the content is there and it’s illegal and you’re just selling clicks as a big ad network, you have every incentive for that illegal programming to be there. That’s fundamentally not really good enough.”

No, it isn’t good enough.  As I wrote last week, Google’s claim that it’s a leader in the fight against piracy is gobbledygook.  Of course Google, being Google, can say pretty much anything its wants since content creators are powerless in the face of its corporate largess and lobbying.  A recent story in the Washington Post, “Google, once disdainful of lobbying, now a master of Washington influence” shined a spotlight on the search giant’s growing domination (and control).

The behind-the-scenes machinations demonstrate how Google — once a lobbying weakling — has come to master a new method of operating in modern-day Washington, where spending on traditional lobbying is rivaled by other, less visible forms of influence.

(Read the e-mails between Google and GMU officials)

That system includes financing sympathetic research at universities and think tanks, investing in nonprofit advocacy groups across the political spectrum and funding pro-business coalitions cast as public-interest projects.

The rise of Google as a top-tier Washington player fully captures the arc of change in the influence business.

When even big corporate entities like News Corp and 21st Century Fox appear powerless in the face of Googleiath’s growing dominance, you know we’re in trouble.  Perhaps the European Union will punish Google for anti-trust violations, but even threats of a 6 billion dollar fine are unlikely to change Google’s scorched earth business practices and tainted profits.  As its influence expands and evolves, so too does the moral code by which it operates.  Problem is, it’s a code of Google’s own making.

Killing writer calls out bootlegger’s B.S.

Killing writer calls out bootlegger’s B.S.

Proportion-of-the-most-popular-and-critically-acclaimed-film-titles-available-on-at-least-one-of-the-34-U.S.-online-video-distribution-services-as-of-December-2013

Online piracy is not a victimless crime

A couple weeks ago the New York Times published a profile of Hana Beshara, founder of the notorious pirate web emporium known as NinjaVideo.   The site was shuttered in 2010 and Ms. Beshara, who pocketed around $200,000 from her enterprise was sentenced to 22 months in prison for conspiracy and criminal copyright infringement.  She was released last year after serving 16 months and, according to the Times piece:

She acknowledges that some of her colleagues were upset when they learned she received much of the profit from NinjaVideo, but says it wasn’t out of line with her role as the voice of the site. “People took issue with the fact that I got paid,” she said. At any rate, in her opinion, the money was insignificant. To this day, she argues that the movie business is so big that skimming a little off the top doesn’t hurt anybody. She likes to say that NinjaVideo was operating in a “gray area.”

Characterizing the business of online piracy for profit as a “gray area” may be how thieves like Ms. Beshara rationalize their criminality, but in reality it’s theft–and because it’s theft–that means there ARE victims.

These  actual victims of online piracy were pretty much ignored in the NY Times piece, but thankfully , a writer for AMC’s and Netflix’s “The Killing” provided some perspective in a guest column published this week in Variety.  Ms. Prestwich pointed out that piracy’s damage extends far beyond the front offices in Hollywood.

When Hana made a TV episode available for free on her website, that was worth the equivalent of thousands of downloads that weren’t watched on a legal site. And when that happened, the entire production team that collectively created the content was adversely impacted – from the most junior production assistant on up. All positions within the hierarchy became devalued.

Google’s “We fight piracy” Gobbledygook

Google’s “We fight piracy” Gobbledygook

google-sign-post-piracyGoogle’s role in online piracy drew headlines recently when News Corps Chief Executive Robert Thomson wrote a letter to European Commissioner for Competition Joaquín Almunia asking that the agency reconsider Google’s February tentative settlement with European Commission to avoid anti-trust charges over its search practices.   In it he criticized Google for its stranglehold over online search and its role as a “platform for piracy.”

The shining vision of Google’s founders has been replaced by a cynical management, which offers advertisers impressively precise data about users and content usage, but has been a platform for piracy and the spread of malicious networks, all while driving more traffic and online advertising dollars to Google. A company that boasts about its ability to track traffic chooses to ignore the unlawful and unsavoury content that surfaces after the simplest of searches. Google has been remarkably successful in its ability to monetize users, but has not shown the willingness, even though it clearly has the ability, to respect fundamental property rights.

In snide response, Google posted its own “Letter to Rupert” (a reference to News Corp’s own controversial and bombastic owner, Rupert Murdoch) on its European policy blog.  Rachel Whetstone of SVP Global Communications penned the letter on behalf of Google to rebut Thomson’s charges point by point.  Her first salvo is unintentionally ironic:

Access to information in any given country, particularly news content, used to be controlled by a relatively small number of media organizations. Today, people have far greater choice. That has had a profound impact on newspapers, who face much stiffer competition for people’s attention and for advertising Euros.

It seems that in Ms. Whetstone’s view, monopolies are a bad thing if we’re talking about the media, but OK if we’re talking about Google?   As Jack Smith writes in a piece for betabeat.com, “Why Google’s Reaction to the News Corp Letter Should Terrify the News Industry:”

But when we think of the news ecosystem, we often forget the one organization to rule them all: Google.

Google is, after all, the master aggregator, curating a list of searchable content — relatively none of which is their own — and making money by putting ads against it.

Predictably Ms. Whetstone also dredges up tired Google talking points to defend the company against charges that it’s a “platform” for piracy:

News Corp:
Google is a “platform for piracy and the spread of malicious networks” and “a company that boasts about its ability to track traffic [but] chooses to ignore the unlawful and unsavoury content that surfaces after the simplest of searches”

Google:
Google has done more than almost any other company to help tackle online piracy.

  • Search: In 2013 we removed 222 million web pages from Google Search due to copyright infringement. The average take-down time is now just six hours. And we downgrade websites that regularly violate copyright in our search rankings.
  • Video: We’ve invested tens of millions of dollars in innovative technology — called ContentID — to tackle piracy on YouTube.

What’s conveniently missing from Ms. Whetstone’s response is the acknowledgement that the only reason Google does “more” to tackle piracy is actually due its own bad business practices.

She trumpets the fact Google removed 222 million pages from its search results.   Shouldn’t she be asking why there are 222 million pages worthy of removal in the first place?  Instead of crowing about how many DMCA notices Google responds to each month, why aren’t its engineers be tweaking algorithms to reduce the number of poison links that appear in the first place?  Talk about trying to make a silk purse out of a sow’s ear.

The fact is that Google does “more than almost any other company” to enable and encourage (and profit from) online piracy.  For Google it all comes down to simple math.  Removing millions links to infringing and illegal content is more profitable than blocking them in the first place.

The massive takedown numbers Google brags about are the result of its failures, not leadership.

As Thomson’s points out:

The company [Google]  has evolved from a wonderfully feisty, creative Silicon Valley startup to a vast, powerful, often unaccountable bureaucracy, which is sometimes contemptuous of intellectual property and routinely configures its search results in a manner that is far from objective.

It would appear that News Corp’s letter, along with blowback from other European stake-holders has resulted in the collapse of the proposed settlement .  This is a good thing.  As Jack Smith notes in beatabeat.com:

Mr. Thomson’s complaint against Google is actually pretty typical of what critics and the tech media have been saying for years: as users begin to move toward social and search for their news, those platforms gain an enormous level of control over what we see, and we have no way of holding them accountable.

One more thing I’d like to point out about Ms. Whetstone’s letter.   As evidence to bolster her claim the Google is a leader in the fight against online piracy she links to piece of propaganda the company published in the form of the report, “How Google Fights Piracy.”

I wrote a point by point rebuttal when this so-called “report” was issued last September and thought it worthwhile to repost here as a reminder that Google’s rhetoric about fighting piracy is based on platitudes, not performance.


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Claiming to be a “leader” in the fight against piracy is Google’s first mistake

This past week Google issued a report, “How Google Fights Piracy,” in which the tech giant attempts to explain what a great job it’s doing leading battle against online piracy.  After reading it I think a more accurate title would be “Why Google Shouldn’t Have to Fight Piracy Because it Offers so Much Other Good Stuff.”

While the report does outline various positive steps Google’s taken (under duress) to mitigate its role in incentivizing and enabling piracy, most of the document reads more like an evangelical tome as to how their innovations have benefited content creators, blunting any collateral damage that may have occurred.  In other words, let’s overlook the bad in favor of the good…

On a personal note, one line I found particularly galling was: “Google is a leader in rooting out and ejecting rogue sites from our advertising and payment services, and is raising standards across the industry.”  The claim that Google has been a “leader” in any way in the fight against online piracy is chutzpah at its best.  A more accurate characterization would be that–after years of obfuscation and inaction–Google’s finally taking (some) action. Never mind that such efforts are long overdue and may never have happened had their nefarious business model (profiting off content theft) not been exposed to the light of day.

In an effort to burnish their tarnished image, the authors resort to repeating well-worn and disingenuous Google-spawned memes (which I’ve repeatedly deconstructed on this blog). These include:

  • YouTube makes money for artists so there’s no need to provide a transparent accounting. 
  • DMCA abuse is a considerable problem.
  • Search is “not a major driver of traffic to pirate sites.”
  • Google is committed to “rooting out and ejecting rogue sites” from AdSense. 
  • Google quickly and efficiently terminates Blogger websites that feature pirated content.

google-circle-piracy

I would counter that Google should be doing much more, including:

  • Offer complete transparency with its YouTube content monetization accounting.  It shouldn’t be opaque.  Provide content owners with an accounting breakdown for each and every piece of claimed content.  Reveal precisely how much Google makes monetizing the work of others?  Employ more safeguards to prevent pirates from using YouTube as a stepping-stone to infringing content and do more to prevent bogus claims that allow criminal users to earn money by uploading content they do not own.
  • Stop claiming that Google search isn’t an important link to pirated content and review and remove sites that are in the business of trafficking in pirated content. Allow others into the mysterious “Trusted Copyright Removal Program for Web Search (TCRP).”   After al,  it’s those with the fewest resources (like independent filmmakers and musicians) that have the least access to takedown resources and could benefit the most from access to a such a (supposedly) streamlined process.
  • Offer more transparency as to where AdSense revenues come from and what sites have had accounts disabled.
  • Quickly remove Blogger websites have been reported (and verified) for trafficking in pirated content.

YouTube

Google’s report begins with a warm and fuzzy anecdote about the previously unknown Korean K-pop “artist” Psy whose viral video “Gangnam Style” became an online sensation and generated more than 8 million dollars in ad “deals”  in addition to having been purchased “digitally millions of times.”  According to a footnote, the figures quoted come from an article in New York Magazine, “Gangnam-Buster Profits,”  It’s worth noting that along with Psy’s profits, Google’s bank account did pretty well too:

Number of YouTube views of the “Gangnam Style” video (as of 1 p.m., November 30): 853,942,076

Standard rate YouTube pays to video owners for every 1,000 views: $2

Estimated total YouTube revenue received by Team Psy: $1,707,884.15

YouTube’s estimated cut: $1,366,307.32
(Based on rates provided by Jason Calacanis, CEO of Mahalo, a top YouTube partner.)

I’m not sure what the report authors meant when they wrote “8 million dollars in ad deals” as there’s no documentation to back that claim up…perhaps they were confused and mixed up deals with YouTube “views?”   Even though the actual figures quoted are at best guesses, there’s no denying that the video was a YouTube sensation and made mega-bucks for both the artist and Google–but so what?  What does that really have to do with explaining Google’s anti-piracy efforts?  The answer is nothing.

The tale of this outlier merely seems designed to deflect attention (and disgust) away from Google’s long-standing role in promoting, and profiting from, content theft.  No one’s saying that YouTube doesn’t offer opportunity to content creators–but with opportunity comes responsibility–and that’s where Google still has far to go.

I’ve written previously about the positive aspects of YouTube Content ID and monetization, but there remains that nagging question Google fails to address–transparency. As demonstrated by our dependence on “guesstimates” to calculate the Gangnam Style video’s possible profits, why does Google still refuse to offer content owners specific information about how much money is being made from their work?

Sure, content owners can see how much they earn, but how much does Google take off the top? How much is earned per view, etc?  Such basic information has never been made clear.  Nor are breakdowns offered when there are multiple claimants on a video (i.e. movie mash-up with music from another artist).  Why does Google refuse to offer a “transparent” accounting breakdown of just how much everyone makes off advertising on claimed content?  What’s there to hide?

tomboy youtube.013

Uploads on YouTube that feature links to infringing downloads

Also, try as they might to focus on the positives, YouTube is also still a conduit for illegal activity. Not only does the site provide online pirates with a convenient means to advertise their illegal download links (on other sites) but it also allows thieves (content leeches) to earn income by monetizing bogus claims.

Why doesn’t Google do more on this front?  Simple answer, monetized uploads make them money.  Who cares what the uploaded file actually is and who owns it (never mind the advertisers being ripped off paying for adjacent ads).  Google/YouTube pays these parasitic pirates and pockets more profit for themselves.

Google Search

When it comes to reporting on the role Google’s search engine plays in promoting piracy, the report report borrows heavily from the recent (Google-funded) study that alleges “search engines are not a major tool in the infringer’s toolbox.”  Both that study and this report concluded that better SEO optimization on the part of content creators is all that’s required to fix the problem.  Given Google’s report merely repeats talking points from the CCIA repeating part of my response  seems appropriate:

Sorry, but I read the entire paper and found no evidence to support this.  Sure, lots of downloaders bypass search because they are experienced downloaders and know how to go to Pirate Bay or Filestube to find what they’re looking for, but where did they get their start?    Perhaps it’s better to think of search engines like Google as a “gateway” to finding pirated content online.

Google search leads to illegal downloads, counterfeit products, illegal pharmacies and more.  Clearly the search giant can de-list sites engaged in unlawful behavior (like child pornography) but rather than do so in this case, its proxy (the CIAA) gins up headlines to muddy the waters, deflect and obfuscate the real issues at play.

If Google were a brick and mortar mall featuring stores selling bootleg DVDs authorities would step in a force them to shut down the illegal enterprises, but when it comes to the online world the “tech” industry’s constant refrain is that the need to “innovate” trumps the need to do what’s right.  Yet this debate isn’t really about protecting innovation, that’s simply tech-speak for protecting the industry’s bottom line (at the expense of those other innovators, content creators).

Since Google deems search to “not be a major driver of traffic to pirate sites” one wonders why in the same breath, the company touts how efficiently it responds to the 4 million weekly requests it receives in a report on its efforts to  fight piracy?

…today we receive removal requests for more URLs every week than we did in the twelve years from 1998 to 2010 combined. At the same time, Google is processing the notices we receive for Search faster than ever before—currently, on average, in less than six hours.

Google has a strong track record of developing solutions that scale efficiently. The trend line is striking—from more than three million pages for all of 2011 to more than 4 million pages per week today. As the numbers continue to swell, it becomes both more difficult and more important to detect and pick out the abusive  [emphasis added] and erroneous removal notices.

This so-called DMCA “abuse” is another tired red herring.  Google routinely employs to deflect attention from the 4 million pages per week of mostly legitimate ones.  Given the huge volume of takedown requests Google receives it’s no surprise there are errors, but the collective “damage” done by mistaken DMCA notices does not begin to compare to the damage piracy has on content creators. However, Google would like us to believe otherwise.   As I wrote in an earlier post:

Piracy apologists like to focus on erroneous takedowns and highlight stories whereby a 9 year-old in Finland had her computer confiscated, or a grandmother in Colorado had her ISP account wrongfully suspended.  Certainly mistakes happen, and when they do it’s unfortunate, but they are few and far between when compared with the cumulative  harm being done to those whose livelihoods are damaged by rampant online theft.  For every search result removed in error there are thousands, if not hundreds of thousands, removed for valid reasons.  Sensationalistic anecdotes make for splashy headlines and provide convenient red herrings for those who defend the piracy status quo–big bad Hollywood versus the grandmothers of the world–but meanwhile the genuine stories documenting piracy’s ruin are routinely minimized or ignored.

Also lost in this debate is the fact that if one takes the time to read the DMCA, it’s easy to see that the law actually favors the reported party, not the other way around.  If a site has been removed in error, the owner can use the Google website to file a counter-claim with a click of a mouse.  That immediately puts the onus on the party that filed the original DMCA request to go to court and prove the legitimacy of their claim.  If that next step isn’t taken, the takedown becomes moot.   Filing a court case is a costly endeavor so it’s unlikely that those whose file false DMCA claims, whether in error or purposely, would bother to spend money to enforce a bogus DMCA.  Conversely, those content creators who don’t have deep pockets have little recourse when it comes to enforcing a valid DMCA takedown if the other party, representing an infringing (pirate) website, chooses to file a counter-claim.

Chilling the rights of creators who attempt to protect their work from theft

Demonstrating a (selective) dedication to transparency and warning hat DMCA abuse can be a “pretext for censorship,”  Google touts the fact that copies of all DMCA notices received are posted on ChillingEffects.org, an online “clearinghouse” operated by a various legal clinics that depend heavily on Google donations for financial support.

chilling-effects-email

According to their website, “Chilling Effects aims to support lawful online activity against the chill of unwarranted legal threats,” but it appears they’re not too interested in the threat that illegal content theft  has on the livelihoods of musicians, filmmakers, authors, etc.  From the beginning, Google’s posting of DMCA notices on Chilling Effects seems designed to intimidate those whose rights are being trampled upon.  In this scenario the only thing being “chilled” is the right of content creators to protect their work from theft in order to make a living.

Google also claims to lower the rankings of sites that are repeatedly reported for content theft (another questionable claim), but justifies the fact it refuses to remove such sites, like  the notorious Pirate Bay, entirely.

While we use the number of valid copyright removal notices as a signal for ranking purposes, we do not remove pages from results unless we receive a specific removal request for the page. As shown on the Transparency Report, we generally receive removal notices for a very small portion of the pages on a site. Even for the websites that have received the highest numbers of notices, the number of noticed pages is typically only a tiny fraction of the total number of pages on the site. It would be inappropriate to remove entire sites under these circumstances.

pirate-bay-google-searchI should add here that when I checked today and did a search for the movie ” a ‘Perfect Ending’ download” the second result (after a paid Netflix link) was none other than a torrent on the Pirate Bay.  So much for re-ranking pirate sites eh?

Why is it inappropriate to remove a site that routinely engages in illegal activity?  If a brick and mortar store’s merchandise routinely includes stolen goods it would be put out of business.  Why does Google hold sites like Pirate Bay in such high regard?  Does every single infringing torrent on Pirate Bay have to reported for Google to consider blocking it?  Is there a tipping point, ever?

AdSense

I could only shake my head when I read that Google  claims to be the industry leader when it comes to  “following the money.”  When I first began blogging about the link between online piracy and profit when my film was released in 2010,  Google wouldn’t even admit there was a problem.  Finally, after having a spotlight shined on their dubious sources of profit, Google has been forced to take action–but a leader they ain’t.

Despite the claim that “Google does not want to be in business with rogue sites specializing in piracy” they’ve yet to provide any documentation to support it. One nugget in the report noted, “…we find that AdSense ads appear on far fewer than 1% of the pages that copyright owners identify in copyright removal notices for Search.”  Does this mean that Google is screening the reported pages for AdSense accounts before removing the link from its search engine?  If so, in the name of “transparency” it would be great to see these results documented.  Speaking of “transparency,” how about letting us “follow the money” to Google’s own bank account.  Just how much money has Google made off advertising on rogue sites over the years?

In my experience with AdSense links were often removed while the site (and its AdSense ads) on other illegal downloads remained active, but looking around the web it does seem that fewer AdSense sponsored ads appear on pirate websites.   I’m thankful some progress appears to have been made, but for Google to infer that it acted willingly to clean up its dirty laundry and  has become leader in the battle against ad-sponsored piracy is just absurd.

Blogger

Last but not least we come to Google’s Blogger hosted websites, a go-to (free) platform favored by web pirates around the world.  According to the report, Google’s efforts to keep the Blogger platform pirate-free should earn the company another feather in its cap.

Blogger is Google’s free blog publishing platform, which enables users to create and update blogs. We remain vigilant against use of the Blogger platform by pirates looking to set up a free website. Consistent with other Google products that host user-uploaded content, we will remove infringing blog posts when properly notified by a copyright owner, and will terminate the entire blog where multiple complaints establish it as a repeat infringer.

Blogger has also created an automated bulk submission tool for copyright owners who have a track record of reliable submissions and a regular need to submit large volumes of takedown notices. This tool allows qualified copyright owners to obtain rapid removals of infringing posts appearing on Blogger.

Sounds good, but as I’ve written many times previously on this blog, the truth with regard to Blogger-hosted websites is not so rosy.  Also, to be honest, Google’s “automated” bulk submission tool is a time-consuming pain.  Why not give content creators a Copyright Management Account that allows for bulk reporting of Blogger sites and search links?  Why should continually have to fill out my name, company, email, etc. each and every time I have more blogger sites and pirate search links to report?  Actually sending an email to Google would be much faster but that’s not allowed.  Ironic that the now defunct Megaupload made it easier to send DMCA notices than Google does…

Google's online removal process is time consuming. Sending an email would be much more efficient.

Google’s online removal process is time consuming. Sending an email would be much more efficient.

More significant is the fact that, in my experience, the word “rapid” should not be part of Google’s lexicon when it comes to targeting piracy on Blogger sites.  Despite repeated reports of piracy and obvious and repeated copyright infringement, many Blogger pirate sites remain online.  I will be posting a follow-up on this subject soon.

blogger-pirates-sites-graphic.

Google-hosted Blogger (blogspot.com) websites are a pirate favorite

There’s no doubt that Google has revolutionized the online world in a variety of positive ways but when it comes to its role fertilizing online piracy, the company has been spinning and deflecting its way through the a minefield for the better part of a decade.  Thanks to outside pressure  the situation has finally begun to improve, but there’s still much to be done before Google can rightfully claim to be a leader in the fight against online piracy.

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Handy list of DMCA email addresses for notorious pirate sites

Handy list of DMCA email addresses for notorious pirate sites

Ellen Seidler's view of the DMCA and its effectiveness in protecting content creators from copyright infringement and piracy.

Content creators know how time consuming it is to send DMCA takedown notices to sites that pirate your movies, music, photographs, etc.  Equally tedious is trying to find the correct DMCA email address to send the actual takedown notice to.  Usually it’s a matter of clicking through a maze of irritating pop-up ads and captcha-codes.  With new cyber-locker pirate sites appearing every day, it’s sometimes hard to keep ones email address book up to date.

So, for those of you who are stuck in DMCA hell, here’s a little something to brighten your date….a list of email address I discovered for the most popular pirate cyber-locker sites.  Of course–given the broken system we have in place to protect copyright holders from theft–there’s no guarantee that even if you do send a takedown notice that the file will be removed, but in for most, it’s worth a try.

List of email addresses to send DMCA takedowns notices to for most popular pirate websites

http://voxindie.org/wp-content/uploads/2014/08/master-dmca-email-addresses-list.pdf

Here’s a link to the PDF: DMCA email addresses list

Did Piracy Tank Expendables 3?

Did Piracy Tank Expendables 3?

the-expendables-3Did the pre-release piracy of Expendables 3 play a role in an abysmal opening weekend box office?

When a high-quality copy of Expendables 3 starring Sylvester Stallone was stolen and released on pirate (torrent) websites last month and downloaded millions of times, the were fears that the theft would hurt the film’s return at the box office.  Looking at this weekend’s results for the 3rd installment of the popular franchise, it would seem those fears have become a reality as the film earned an anemic 16.2 million, 10 million less than expected.  From  in Variety:

“This is really a clear situation where this had an impact,” said Phil Contrino, vice president and chief analyst of BoxOffice.com. “It’s hard to measure, but the ripple effect, not only of the downloads, but of the word-of-mouth that spread as a result, can be seen in the soft opening.”

The film’s initial numbers are the worst in series history. The original “Expendables” launched to $34.8 million in 2010 while the second installment debuted to $28.6 in 2012.

Variety cites other possible factors beyond piracy, like “franchise fatigue”, that may have played a role in the disappointing returns, but given the fact that the film missed expectations by a whopping 10 million dollars the pre-release piracy was most certainly a factor in the equation.  As Lang writes:

However, some research suggests that piracy can take a big chunk out of ticket sales. A 2011 study by Carnegie Mellon University researchers found that when a film is pirated prior to release, it loses nearly 20 percent of its potential revenue.

Why pay to see a film at the theater when you can see a high-quality version online, for free?  It’s the lament of filmmakers worldwide who regularly see their works stolen and distributed by online thieves.  Let’s remember, of course, that these online web pirates DO make money and it comes at the expense the filmmakers (and their investors).

The fact that the piracy of Expendables 3 took place  three weeks before it’s planned release made it particularly damaging.  Piracy apologists probably cheer the damage done to Hollywood and care little about those who make their livings working to produce films like this.   Others do care.  The California legislature is poised to pass AB 1839 a bill  increase the state’s film production tax credits four-fold in order to keep the film production industry (and the people who work for it) in California.  As one of the bill’s co-sponsor told the Washington Post:

“I’ve heard from so many people over the past year who have told me about their family being torn apart because production left the state,” Assemblyman Mike Gatto (D), a bill co-sponsor, said in a statement.  “This proactive effort ensures well-paying jobs stay in California and families remain together.”

Tax credits aside, another way to keep the film industry healthy is to do more to combat the scourge of online piracy. Lionsgate, the studio distributing Expendables 3, has already gone to court in an effort to blunt further damage, but nothing can undo what’s been done.  Hollywood has taken a hit and so too have those who earn their living working there.

Debunking claim Online Piracy is NOT a Danger to Indie Film

Debunking claim Online Piracy is NOT a Danger to Indie Film

online piracy does damage indie filmmakers

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.” indie films pirated online

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. online piracy threatens indie film

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.”

online piracy hurts indie filmmakers

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.

online piracy is not limited to 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.

online piracy has impacted these indie films

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?