Category: Film

Tedious Anti-Copyright Stance of EFF is Not About Protecting Anyone

Welp (as the kids say), it looks like Katherine Trendacosta of the Electronic Frontier Foundation (EFF) found an old PowerPoint deck from 2012 and used it to write a new post ominously titled Hollywood’s Insistence on New Draconian Copyright Rules Is Not About Protecting Artists.

Typical of the EFF playbook, Trendacosta devotes an entire post maligning the motion picture industry rather than address the “rule” (the SMART Act), which she does not even mention until the final paragraph. At that point, the reader is meant to take her word for it that the proposed legislation is bad because—believe it or not—there is too much diversity and choice in the streaming market, and because film producers want to make money.

Ms. Trendacosta calls streaming a “hellscape” where consumers cannot find what they want and/or where shows and films are canceled or moved to different platforms. She writes, “It’s disingenuous for Hollywood’s lobbyists to claim that they need harsher copyright laws to protect artists when it’s the studios that are busy disappearing the creations of these artists.”

“Hellscape” is a bit dramatic as critiques go, given that market research indicates that 74% of consumers report being satisfied with streaming and that those numbers are currently trending upward. Of course, the anti-copyright playbook Trendacosta is using tells her to imply that when producers make market decisions to stop producing a given work, or to move a work from one channel to another, this is “disappearing” material that should be available in perpetuity. In fact, she inscrutably cites the “disappearance” of a film which is temporarily being made available in a new 4K cinema format and will return to streaming in a matter of months. Hellish, no?

Perhaps Trendacosta is unaware that we are enjoying a new golden age of filmed entertainment available on—or produced especially for—the private screen market. Streaming models have fostered a diverse range of projects that would never have been made, let alone been sustainable, in the narrower distribution paradigms pre-Netflix. But a reality of all this bounty is that more experimentation and risk-taking means that a higher volume of material will be canceled or redistributed more frequently as audiences respond to what gets made. That’s just the business of making entertainment media, and the EFF always acts as if the business is what makes efforts to mitigate piracy somehow dishonest or sinister.

Here, Trendacosta digs a little deeper into the big box of EFF’s toys and argues that ordinary tensions that arise among studios and talent—including strikes and financial disagreements—are evidence that the parties seeking remedies to piracy “don’t care about artists.” True to form, the folks at EFF pretend to care about artists by erecting a false dichotomy between the creators who work on projects and Hollywood, where “Hollywood” is a generic term to describe a monolith that does not exist.

It’s a very strange argument because the artists to which Trendacosta refers in those strikes, etc., want money, too. In fact, money is often exactly why they have disagreements with certain producers or studios. Yet, Trendacosta elides the fact that piracy hurts everyone in the ecosystem, regardless of their internal disputes and negotiations with one another. That’s why unions like DGA, WGA, and IATSE are members of the Copyright Alliance and work closely with the studios to fight piracy. It is categorically false to suggest that large studios are the only parties with an interest in this issue. As independent filmmakers and other artists have explained repeatedly, it’s the smaller, independent projects that are most vulnerable to the negative effects of piracy.

And let’s be honest. EFF opposes all copyright enforcement measures in the same style as this post—no substance, just uninformed, ad hominem attacks—and it behaves no differently when smaller groups or indie artists seek copyright remedies in Congress.

So, what is the supposedly “harsh” new piracy remedy that EFF is opposing this time?

The Strengthening Measures to Advance Rights Technologies (SMART) Act is a legislative response to the fact that for more than 25 years, Big Tech has refused to fulfil its side of the bargain struck with the adoption of Section 512 of the DMCA. Simply put, Section 512(i) requires online service providers to collaborate with copyright owners to develop standard technical measures (STM) to identify and expeditiously remove infringing content from internet platforms.

But not only did the development of STM never quite happen, the Googles and Facebooks of the world, who came after the OSPs that negotiated the DMCA, benefitted from mass infringement on their platforms because the DMCA shielded them from liability.

SMART seeks to address more than two decades of stonewalling by adding a new Section 514 to the DMCA that would create new remedies to confront Big Tech’s refusal to adopt appropriate and affordable technical measures to reduce online piracy. At the same time, its proposals would protect smaller and less well-resourced service providers by calling for a variety of tailored and practical technical measures to be developed under a multi-stakeholder process overseen by the Librarian of Congress.

This is what the EFF is calling “draconian”—a proposal to restore the intent of the DMCA as it was enacted in 1998. SMART is the first substantive response to Big Tech’s two big lies: 1) We can’t do it; and 2) We shouldn’t do it because it will chill speech. Those arguments have worn paper thin in recent years given the role these same companies have played in fostering the most toxic, Republic-shaking nonsense ever to be “freely spoken.” But credit where it’s due. At least Ms. Trendacosta didn’t say SOPA.

Doc Filmmakers Brief in AWF v. Goldsmith is Misguided

In both Andy Warhol Foundation v. Lynn Goldsmith (SCOTUS) and Hachette et al v. Internet Archive (SDNY), the amicus briefs are piling up fast. Not that I have any intention of writing about every argument presented in either case, but rummaging through the briefs in Warhol, one filed by a group of documentary filmmakers on behalf of AWF caught my attention. I support documentary filmmakers as much as any other type of creator, but the arguments presented to find fair use for AWF are inappropriate and ill-advised.

As a general critique, the filmmakers’ brief is too dramatic (and frankly dishonest), claiming that if SCOTUS affirms the Second Circuit’s finding against fair use for Warhol, the decision “could devastate the documentary film genre.” This hyperbole reveals the central flaw in the brief which implies that doc filmmakers have enjoyed a degree of certainty in fair use prior to the current ruling in Warhol and, therefore, argues that upholding the ruling will further disrupt that certainty. This is untrue.

If the filmmakers would have the Court believe that documentarians have thus far relied on the fair use rationale as applied by the district court in this case, history does not support this claim. On the contrary, if the Court were to agree with AWF’s reasoning as presented, it would create a novel presumption of certainty by broadening fair use to encompass almost any use that adds “something” to the world. Such a holding may seem attractive to many users of protected works, but it is incorrect to argue that this reasoning is consistent with fair use doctrine to date, and it is folly for any class of creator to be so eager to weaken their own copyright rights.

Doc Films Do Not Depend on the Question Presented

The filmmakers’ brief relies heavily on an accurate but incomplete portrait of the doc filmmaker as a paradigm among fair users. It is true that a documentary may fulfill several, or all, of the exemplary fair use purposes enumerated in the preamble of Section 107 of the Copyright Act. A film might be simultaneously commentary, criticism, education, and news reporting, which is why documentaries enjoy what the brief describes as a “favored” status in a fair use consideration.

But there is no foundation to argue that this status will be disturbed if the Court rejects AWF’s fair use theory, and the filmmakers’ brief does not present a compelling argument to the contrary. It merely alleges that such an outcome would be harmful, even though documentary filmmakers are in roughly in the same posture vis-à-vis fair use as they have been since 1978, if not earlier.

The filmmakers argue that if their work is subjected to the Second Circuit’s “side-by-side” search for transformativeness, this would expose many documentaries to unprecedented liability for infringement. But this claim is inapt as a matter of law and inconsistent with traditional doc film production in practice. As a legal matter, AWF v. Goldsmith is fundamentally (and frustratingly) about the conflict between transformation as fair use and transformation as protected derivative work, but this doctrinal tension is rarely present in a typical documentarian’s use of protected material, including most, if not all, of the examples cited in the brief.

Because documentaries tend to fulfill one or more of the paradigmatic purposes of fair use, they benefit from a legal pedigree that predates the “transformativeness” doctrine and much of the confusion it has spawned. Most fair uses of protected material in documentary films are relatively easy to identify without addressing the theoretical distinction between a transformative fair use and a derivative work. Consequently, the filmmakers’ concern that they will encounter new liability on the basis that works are often used in films “without alteration” is misplaced and a poor reading of classical fair use doctrine.

For instance, the filmmakers argue somewhat breathlessly that, “Relying on Warhol, at least one trial court has already held that brief uses of a photojournalist’s footage in documentary programming were not transformative as a matter of law because they were not altered and were thus “even less transformative than the use at issue in Andy Warhol.” (Emphasis added). But in fact, the opinion cited (Fioranelli v. CBS) reprises a litany of Second Circuit holdings dating back to 1997 and summarizes the court’s general view thus:

A common thread running through [Second Circuit visual art] cases is that, where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a “higher or different artistic use,” is insufficient to render a work transformative.

So, the holding in Fioranelli is not a direct result of Warhol, and the requirement to “comment on…” the original work is longstanding doctrine when considering factor one in a fair use analysis. Moreover, that lawsuit was triggered by multiple uses by sublicensees made in breach of the photojournalist’s original agreement with the network. This detail further weakens the filmmakers’ argument in Warhol because the defendant’s initial obligation to license in that case demonstrates that documentary films usually rely on a combination of licensed and fairly used materials. A finding for Goldsmith will not place an unprecedented burden on filmmakers to consider fair use for each work used in a project, and the filmmakers’ brief is instructive when it undermines its own argument, stating:

… many copyrighted excerpts in documentaries are clearly recognizable, and the new work often does not comment on or directly relate back to them. Rather, the borrowed works are generally presented in combination with other archival sources, original content, and commentary via narration or interviews. This is done to provide viewers with historical, cultural or social context, for the purpose—different from the originals’—of enhancing viewers’ comprehension of the films’ subject matter.

That description encompasses a spectrum of plausible fair uses under the same doctrine that rejects AWF’s theory. It may be that presenting a work “in combination” with other elements “to provide viewers with cultural or social context” meets the classical purpose of the fair use exception, particularly in a nonfiction work like a doc film. And maintaining this paradigm does not rely upon the question presented in this case, let alone a finding for Warhol.

Fair Use Remains a Case-by-Case Consideration

Fair use analyses are standard practice before the release of a documentary film. As the brief notes, producers typically obtain errors and omissions insurance, which may require a fair use assessment of the final film by an attorney. This analysis will not be made more difficult or uncertain by rejecting AWF’s fair use defense, and to the extent the filmmakers hope the Court may foster broader certainty by expanding fair use, I would caution them to be careful what they wish for. Under AWF’s theory, it would be substantially easier to infringe the copyright rights of the documentarian, too.

Documentary filmmakers are essential creators, but they do not require greater latitude in fair use considerations than the creators whose works they might use. If anything, the broad “favored” status enjoyed by documentary filmmakers obliges them to make a good-faith effort to understand which uses are reasonably fair use and which are not. There is ample guidance for the most common uses of works in nonfiction films, and where guidance is uncertain, licensing is available. In those instances where licensing may be unattainable, as alluded to in the brief, fair use is, as ever, a possible exemption but never a certainty.

Photo by: Gorodenkoff

One Movie Settled the “Debate” About Climate Change

When I saw the theme of this year’s World IP Day, Innovate for a Green Future, I will admit that it was hard not to be cynical. In light of the reinvigorated political assault on science—let alone to be thinking about climate change in the middle of a pandemic—it is tempting to believe that the debate about global warming still rages—or has even been lost. But that’s not quite true. The debate was settled a very long time ago. Or to be more precise, there is no such thing as a debate about scientific evidence, there is only understanding, misunderstanding, willful ignorance, or malignant deception. 

While it is stultifying to see that a truly vindictive brand of ignorance and deception are the cornerstones of the present administration, there remains one avenue of hope for at least mitigating—because it is almost certainly too late to reverse—the effects of global warming. Oddly enough, that avenue of hope has more to do with market dynamics than environmentalism per se, and I would assert that it was a single documentary film that opened the window to a market-based transformation, which, even now, represents a path forward. I am of course talking about An Inconvenient Truth.

An unlikely movie pitch, the centerpiece of the documentary is former Vice President Al Gore presenting his climate change “slide show,” which he had developed over several years after he was first introduced to the science in college in 1966. Not long after conceding the painfully-contested presidential election in late 2000, Gore devoted himself fully to the climate issue, taking his laptop and talking points on the road, offering free admission to anyone willing to listen to him discuss the fate of the planet.

“The slides were originally black and white,” says the film’s co-producer Lawrence Bender, whom I interviewed for this article. “They weren’t visually appealing, but they were almost scarier, like something you’d see in a science lab, when we first saw Al’s presentation in Los Angeles.” Bender and others who would eventually join the production team were invited by producer Laurie David (now Lennard), who had arranged for Gore to come to L.A. after she found herself captivated by his lecture in New York in May 2004.

“Gore’s show left us with a sense of urgency about the issue,” says Bender. “We knew we had to make what we had seen into a movie, but it was not easy to convince many people in the business that it was a movie. Try telling someone you’ve got former VP Al Gore, who lost the election, doing a slide show about science, and that you need a million dollars.” Enter Jeff Skoll, who founded Participant Media in 2004 with the fortune he had made as eBay’s first employee and first president. “Jeff financed the whole production without blinking an eye,” Bender tells me.

Less than a year after that initial presentation in Los Angeles, An Inconvenient Truth was ready for the screen. It became an international blockbuster (for a doc), earning two Academy awards, one for Best Documentary Feature, the other for Best Song, “I Need to Wake Up” by Melissa Etheridge. And for any cynics, who may be tempted to criticize the movie as a vanity project—Hollywood glamor with little substantive effect—I would direct your attention back to the 1990s and early 2000s.

Waking Up Tens of Millions

Hurricane Katrina. August 28, 2005. NASA

When the Kyoto Protocol was ratified in 1997, calling for a modest 5% reduction in greenhouse gasses by developed nations, global warming was not an especially bright blip on the public radar screen. General perception, such as it was, loosely divided along the left/right political lines that are usually drawn through environmental issues; but overall, the average citizen (and quite a few politicians in both parties) could be described as somewhere between ambivalent and unsure about the alleged causes or effects of a warming climate.*

It probably did not help that this was the same period when we all first logged onto the internet, which would prove to be a wonderful tool for obtaining information and disinformation at the same time. And to be sure, the extractive industries, and other vested interests bound to fossil fuels, were eager to provide erudite sounding counter-narratives to the mountain of evidence proving that human activity was in fact changing the climate in dangerous ways. Then, on January 24, 2006, An Inconvenient Truth debuted at the Sundance Film Festival.

Directed by Davis Gugenheim, the film’s most effective quality, in my view, was that it reintroduced the purportedly “wooden” politician Al Gore as a relatable, flesh-and blood human being, whose humor and humility rescues the didactic lecture from becoming either dry or a ninety-minute scold. Upgrading Gore’s visual aids to high-resolution slides using Apple Keynote certainly provided enough color and scope to fill the big screen, but the critical element was Gore’s humanity. 

“Davis was adamant that the film had to work emotionally,” says Bender. “It’s a deceptively simple movie, but we spent a lot of energy in post-production trying to find the right balance between this man’s personal journey and the science.” By interweaving Gore’s presentation with glimpses into his life story—anecdotes in which he admits his own frailties and errors—the overall result of the film was that it turned carbon dioxide into a kitchen-table issue. And that was the significance of An Inconvenient Truth.

Seemingly overnight, as a direct result of the movie’s success, concepts like “carbon footprint” entered mainstream conversation and classroom curricula across the U.S. and abroad. While the opposition was by no means silenced, the film awakened enough public consciousness that multiple business segments suddenly needed to respond to a new consumer demand to “go green.” 

Consumer Change Leads to Corporate Change

To be sure, not all business initiatives were substantive, but by and large, the mandate to promote green led to tangible and lasting changes in corporate culture and governance. Sustainability went from a crunchy, esoteric notion to a board-room best practice, and this, in turn, spawned new investment in the development of alternative and more efficient energy solutions. “Practically every Fortune 500 company has a sustainability officer or sustainability program today, and that was not true fifteen years ago,” says my longtime friend Jeff Turrentine, a writer and editor for On Earth, the publication of the Natural Resources Defense Council. 

An Inconvenient Truth was not the first conversation about the economics of sustainability, and Gore was hardly alone in asserting that carbon reduction, aside from being existentially mandatory, is compatible with economic growth. Many environmental experts, technology innovators, and political leaders (even bipartisan ones) had a solid grasp on the two uncontroversial facts about carbon mitigation: 1) that burning less fuel saves money and is, therefore, profitable; and 2) that green innovation represented a whole new sector of untapped economic opportunity.

That conversation was already taking place in various pockets in the both the public and private sectors for at least a decade or more before An Inconvenient Truth was released. But the film gets credit for igniting those latent sensibilities in the minds of the general public and for spawning the aforementioned consumer demand for change. The movie was catalytic in fostering market conditions in which multiple industries and municipalities discovered what many environmentalists had tried to explain for years—that working to reduce greenhouse gas emissions happens to be good for business. 

So, while the Trump administration has arrogantly stumbled backwards on environmental policy—evangelizing climate science denialism out of sheer spite—the green investments made by both the private and public sectors over the last decade and a half are unlikely to be reversed—especially when those investments are yielding positive returns. It is still not enough, but it is most likely where the best hope still remains. And perhaps there is no better example of this paradigm than the city of Georgetown, Texas, featured in An Inconvenient Sequel: Truth to Power (2016). 

Mayor Dale Ross proudly tells Gore, on camera, that his city is powered by 90% renewable energy (at the time of filming), despite being “the reddest city in the reddest county in Texas.” Why? Because, to paraphrase Ross, it saves his constituents money, and because you don’t need to be a scientist to understand that less pollution in the air is a good thing. This is why I will argue that An Inconvenient Truth went beyond merely “raising awareness.” It directly created a public mandate that led to the kind of common sense approach taken by Ross, who reminds us that there is nothing “conservative” about waste or higher prices.

The countless market effects that can be attributed to a single film—in which the information was neither new nor hard to grasp—remind us that creative expression is essential. In a time when IP deniers argue that copyright functions solely as a barrier to information, the story of An Inconvenient Truth belies the naïve, tech-utopian assumption that access to information alone is sufficient—least of all when utter nonsense gallops across digital platforms like a fifth horse of the apocalypse. Facts alone do not speak meaningfully to people. Invariably, it takes creativity to inspire us, even when it comes to saving our own lives. 

*It must be acknowledged that the climate issue had Republican champions in those days, and there is an extent to which Gore, as the most prominent messenger, became a more attractive political target after the 2008 election, when the GOP became more dependent on the fossil fuel industries.

Photos: “Al Gore” Lisbon, 2017. By G Holland.

“Earthrise” Apollo 8, December 24, 1968. NASA.