Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Why Women Should Also Lead the Anti-Piracy Effort

In past articles I’ve suggested that anti-piracy should be a form of activism practiced by anyone who stands up for women’s rights. And perhaps now that empowerment of women is the social tidal wave of the season, this proposal will get some traction. There is the ugly truth that some pirate sites serve as verticals for broader organized crime activity, including human trafficking; and there’s also the problem that pirate-site deployment of malware like RATs fosters harassment and exploitation of women and girls. So, it seems logical to me that if one’s environmental consciousness would avoid adding one more plastic bottle to the ocean, then one’s feminist consciousness would likewise avoid enriching pirate sites, which may support these forms of exploitation.

But there’s another point I’d make, and one that may be more obvious than the links between piracy and exploitation. It occurred to me the other day when I read in Variety that Rachel Morrison is the first woman Director of Photography to be nominated for an Academy Award for her work on the indie film Mudbound. Coincidentally, this was just a few hours after I read an editorial by that film’s producer Cassian Elewes titled How Google is Killing the Independent Movie Industry. Elwes focuses on the renegotiation of NAFTA and how the safe harbor provisions in the 1998 DMCA have had the unintended consequence of expanding piracy, which most acutely harms independent filmmakers.

The feminist groundswell generally referred to as the #MeToo movement not only began in the epicenter of the motion picture industry with revelations about Harvey Weinstein, but the industry as a whole was long overdue for correcting its “boys club” problem separate from issues of harassment and assault. In the days before sound was added to motion pictures, women were among the most innovative artists of the budding industry—as writers, directors, editors, cinematographers, studio heads, and even operators of big 35mm, hand-cranked cameras. Sound made production more expensive, leading to more substantial capital investment, which transformed movie-making into a “real job” that men wanted. Thus, the substantial contributions of Alice Guy Blaché and her contemporaries to the new language of cinema are little known by anyone other than students of film history.

Now that the male/female pendulum is finally swinging back toward a more balanced position, one of the best choices fans can make to keep that momentum, to support a craftsperson like Rachel Morrison—and the 1,000 young women who want to follow in her footsteps—is to stop pirating movies. As many have tried to explain, that whole “screw the fat-cat movie moguls” narrative people still cite to justify piracy is a complete myth. The so-called “fat cats” will be fine much longer than the independents, where the margins are lower and the effect of piracy can easily make or break the financial success of a film and prospective investment in the next one. Elwes writes …

“…just during its theatrical run, Dallas Buyers Club suffered roughly 22 million piracy transactions – more than three times the number of legitimate transactions. If just 5 percent of those pirated transactions had been paid tickets, downloads, or rentals, the film would have earned at least an additional $4.4 million (at a low rental fee of $3.99). That kind of money is life or death for an independent film and the filmmakers who sacrificed everything to get their vision onscreen.”

I’ll add that anyone who justifies piracy based on their idea that filmmakers are just those tux-and-gown folks swarmed by paparazzi on the red carpet, should spend a week with a cinematographer and her crew of camera assistants. It’ll be a string of 15-hour days, mostly on your feet, moving very quickly, communicating in a technological patois you won’t understand, and all in the service of key creative decisions worked out weeks or months earlier between the director and the production designer.

It’s fairly common when a film is nominated for a Cinematography Oscar that fans will say, “Yeah, that film is beautiful.” But beauty isn’t necessarily the DP’s objective; it’s actually something much more difficult and subtle than that. It’s making a thousand technical and creative choices, sometimes on the fly, that serve the story in ways the viewer doesn’t consciously observe. Great cinematography is hard, both mentally and physically; and anyone who thinks digital has made the process easier or cheaper only believes this because he doesn’t know how the job actually gets done.

Likewise, anyone who thinks that “pirating the studios into oblivion” is somehow helpful to independents and careers like Morrison’s, don’t know what they’re talking about. The worlds of studio and indie are codependent in numerous ways I won’t repeat here; but just a glance at Morrison’s IMDB page reveals a fairly typical narrative—over 30 credits in the Camera or Electric Department (i.e. learning her craft) beginning in 1999; then cinematographer credits on 43 independent films, TV shows, and documentaries; then her first big, Hollywood movie, Black Panther, releasing this year. But her future career will continue to include many independent films because most films made are indies while the “evil” studios function primarily as distributors.

So, anyone who’s glad to finally see a woman nominated for a Cinematography Oscar—because it really is a long time coming—and would like to see more women in that line-up in the future, can best support this trend by supporting the films themselves with tickets, streaming rentals, paid downloads, etc. Or you can keep supporting some anonymous guys running pirate sites and are at this moment criminally exploiting Morrison’s work on Mudbound for their own profit. See the problem?

 

Photo:  Photoplay magazine (1916). Camera operator, or “crank,” Margery Ordway.  See more information at Library of Congress.

Ideologues Seek Revision of Copyright Law Without Legislative Process

One of the reasons someone like me mucks about in copyright law is that all law is an exercise in language.  Especially because English comprises more words and, therefore, more shades of meaning than any language in the world, the logophile who enjoys a good fuss, bother, muse, agitation, or dither over deployment of le mot juste shares a kinship with the legislator, judge, or attorney whose choice of words can have profound consequences for generations of people.

If law can be described as an attempt to shape civilization by means of imperfect language, how could the subject not be a flame to the word-geek’s moth?  And since the heart of copyright law is expression itself, it is naturally a region where one can spend considerable time exploring avenues, boulevards, and dark alleys on a journey of semantic discovery.  On the other hand, the linguistic ambiguity that is the word lover’s playground can also be a source of frustration in the application of law, which is why context framed by precedent plays such a critical role.

But in the United States, where most laws are state laws, a broad framework of precedent is often impossible in certain specialities.  No single attorney or judge can, for example, track the commonalities among all the tort law cases decided in the fifty states in order to find some consensus on the meaning of fundamental and evolving principles.  In answer to this, a century-old organization called the American Law Institute publishes what are known as Restatements of Law, primarily for the purpose of consolidating and synthesizing the disparate body of common law into guidelines that may be cited in court almost as though they were statutory, or black-letter, law.

But in a move that would normally go unnoticed by anyone outside the legal profession, a small group of copyright skeptics, initially led by Berkeley Law Professor Pamela Samuelson, embarked on a Restatement project for copyright law.  This is unprecedented.  ALI Restatements have never been written for comprehensive federal laws like copyright because these are already statutory, or black-letter, laws.  Congress writes the statutes, the judiciary interprets them, and attorneys make their arguments; but everybody’s working from the same statutes and a much more narrow body of case law than common law entails.   Hence, this request for a Restatement of copyright law represents an end-run around Congress—an effort to reshape the Copyright Act without a legislative process.

The ALI Restatement process is methodical, iterative, and ultimately requires ratification by vote of the entire membership.  Once a Restatement is issued—in fact, even before it is fully ratified and published—segments can be cited in court, so the institution does not take the process lightly.  Drafts are written by a small group of attorneys called Reporters, and other ALI members are invited to submit comments as Advisers. The Reporters are, however, not required to defer to any of the Advisers; and a key concern among rights holders about this project is that its five Reporters are known to be highly critical of copyright with particular bias toward the anti-copyright agenda of internet companies.  Most prominently, lead Reporter Christopher Sprigman serves as counsel to Spotify, which at least raises the question of a conflict of interest.

Because this project is unprecedented in the history of ALI, a response last week from music attorney Dina LaPolt pulls no punches, asserting that the institution is at risk of undermining its well-earned credibility by exceeding its tradition of filling in gaps in the law and instead rewriting law that is well-established.  “The problem is that ALI has been hijacked by a handful of agenda-driven academics, who are drafting the text of the ALI treatise in a way that reflects their subjective view of copyright law, not the objective summary they were directed to create. Some of these academics have in the past tried to lobby Congress for changes that would weaken copyright protection — unsuccessfully. And for reasons I cannot understand, ALI has decided to be complicit in a process that will harm creators and likely benefit technology giants,” LaPolt writes in Billboard.  In the same publication, Robert Levine cites a letter obtained by the magazine in which acting Register of Copyrights Karyn Temple Claggett calls the prospective Restatement “a pseudo version of the Copyright Act.”

Looking at this as an outsider, it is hard to imagine how this Restatement process, originally created to distill clarity out of the dynamic mosaic of common law, would not, at best, foster new areas of confusion in copyright.  Presumably, the Reporters imagine rewriting copyright law as they believe it should be—and this is already an affront to the legislative process—but it’s not as though the considerable body of statutory and case law copyright knowledge will simply evaporate. Restatements clearly serve an invaluable purpose where no statute or collective understanding exists; but where well-founded and longstanding statutory knowledge is already present, confusion seems inevitable.

Copyright law contains statutory language dating back to the start of the nation, and its stately growth in complexity is a cumulative and fairly linear narrative that, not by coincidence, parallels the narrative of technological innovation. Nevertheless, language remains imperfect, subject to interpretation and persuasive argument; so it seems to this non-attorney that adding what might be described as a holographic copyright law (to build on Claggett’s comment) that would sit on top of well-established precedent would only inject greater uncertainty in the courts.

These Restatement projects take years.  This one actually began in 2015 and is only being discussed in a limited way in public fora as of last week.  And while it is hard to say exactly where this process will go—it really is inside baseball for the legal profession—rights holders should not lose sight of the fact that the forces opposed to copyright’s core principles, many of which are direct beneficiaries of the internet industry’s assault on creators, are clearly willing to achieve their ends by any means necessary.  Isn’t it curious that the parties who so vehemently insist that copyright is incompatible with democracy are rather quick to throw democracy under the bus in order to get what they want?

Photo by designer491

Dragon Box Sued by New and Traditional Film Studios

Picking up on the piracy-doublespeak theme of my last post, let’s highlight a favorite talking point among piracy advocates and apologists, the one that goes like this: If the major producers were just smart enough to make works available conveniently and affordably, people would stop pirating. That was always a lie. And it’s been proven a lie by the filmed-entertainment industry because a huge volume of content—more than any normal person has time to watch—has been made conveniently and affordably available, and yet piracy continues to increase. More than that, piracy has become so sophisticated that potential new users of pirate sites don’t have to be sophisticated at all.

Until fairly recently, a user generally had to be aware that he was visiting an infringing site to illegally download or stream a motion picture or TV show. If he was committed enough to his piracy, he’d have to follow some of the trends, know which pirate sites are doing what, invest in a VPN to hide his tracks, and spend some time searching for specific titles. Now, the process is made much easier with device-based piracy, often referred to generically as “Kodi Boxes,” after the name of one of the first products to enter this market. Essentially, these devices work like an AppleTV or Roku, but because they’re built on open-source operating systems, third-party “add-on” software was made available almost immediately to turn these devices into piracy boxes.

With add-on software, the user gets a Neflix-like graphic interface offering nearly any title he can think of for free. What the device does in the background is locate the target material on a pirate site’s server somewhere in cyberspace and then stream it from that infringing location via the box to the user’s screen. It’s all very clean and prettied up just like a legit product, requiring no more savvy than the use of a TV remote. It’s so easy that a small child can steal cartoons in her pajamas on Saturday morning without waking Mom and Dad for help.

Enter Dragon Box

On January 10, a complaint was filed in California District Court against developer Paul Christoforo and reseller Jeff Williams of Dragon Box—a device pre-loaded with piracy software and which is overtly advertised to consumers as a substitute for paying for cable, Netflix, Hulu, or any legal supplier of filmed entertainment, including online gaming. Plaintiffs, which comprise Netflix, Amazon, and six major motion picture studios, allege that Dragon Media Inc. intentionally facilitates and induces mass infringement of their works via the function of Dragon Box and the manner in which it is marketed to the public. Here’s the sample ad cited in the complaint:

That ad alone is sufficient to imply that this case probably won’t last very long—meaning Dragon Media Inc. won’t last very long because they don’t seem to have a claw to stand on. Advertising a device that delivers on a promise to enable consumers to watch subscription-based content without said subscription is about as clear-cut as selling bootleg DVDs out of a warehouse. I’m frankly surprised the defendants imagined they’d get very far with this one, operating out of Carlsbad, CA and blatantly promoting illegal access to just about every kind of media content available. Beyond the eight plaintiffs in this litigation, Dragon Box’s advertising implicates the sports and news interests, the cable and satellite providers, and so much more! Their interface even offer a menu selection called “In Theaters,” thus facilitating and promoting access to pirate streams of movies weeks or months ahead of their release on digital platforms. Because freedom I guess.

I imagine this case will conclude rather quickly with a summary judgment for the plaintiffs. It’s very hard to imagine Dragon Media sustaining a reasonable defense, let alone a prolonged one against basically the entire film and TV-producing universe, both large and small. In fact, because these devices are sold as a for-profit venture, providing a product designed to enable mass copyright infringement, the defendants should be glad not to facing criminal charges, rather than a civil suit. Of course, this probably won’t stop the piracy advocates from concocting some theory as to why Dragon Box is perfectly legal.

Piracy Boxes Change the Landscape

One of the reasons, piracy advocates convince themselves and others that their actions are harmless is that the damage done thus far tends to be relatively obscure. When piracy causes an independent filmmaker to lose the margin between profit and loss, her story is dwarfed by reports that Hollywood’s millionaires are still making millions. Or when producer Martha de Laurentiis blames piracy as a major factor in the cancellation of a hit TV show, and it’s just one anecdote in a market that is clearly replete with content.

The big picture gives lie, the pirates will say, to the premise that piracy does much harm at all. And this conclusion then justifies the claim that copyright enforcement in the digital age is inherently draconian. These are the climate-change deniers among piracy advocates—the ones who cannot imagine how relatively small examples of harm imply that piracy, like all forms of harm, has a tipping point. Clearly, the millions of dollars invested in new production depend on a substantial majority of the market not pirating.

Meanwhile, we are currently witnessing an expansive and speculative period when companies like Netflix and Amazon are spending a lot of debt capital to produce new works and grow market-share, with only their subscription/rental platforms as revenue sources. I stands to reason that if a piracy-box market attained a certain volume, this would be an even greater threat to the digital-only producers than it is to the traditional studios releasing movies in theaters etc.

And, no I don’t care about Jeff Bezos either. In fact, I’m not a fan. But I do care about the creative professionals Amazon has to hire to make the recent Golden Globe winning The Marvelous Mrs. Maisel, or whatever else they produce next. And it’s patently absurd to assume that production will simply continue to grow and innovate if piracy continues to increase toward the tipping point, wherever it may be.

In this regard, devices like Dragon Box have tremendous potential to accelerate piracy toward the threshold of more demonstrative market harm because these boxes make access to pirate sites so easy, seamless, and invisible. Presumably, a plug-and-play device marketed in this way will draw consumers who would not otherwise engage in piracy. And if it were allowed to mature, this is a dragon that could easily burn up all the crops. Fortunately, I predict this case will conclude rather quickly and serve as a deterrent to the next “entrepreneur.”