Category: Film

Maybe the Internet IS Just a Dumb Pipe

“Content is king” was the catch-phrase of the 1990s and the heady (headless really) days of the Dot Com bubble.  And although that stopped being a slogan with the resurgence of Web 2.0, it was still true.  Content was still king except the would-be tech giants figured out that they didn’t need to create content but instead just make someone else’s content available.  Whether these companies had any right to exploit said content did not matter since the telecom giants who preceded them had conveniently negotiated a liability shield (DMCA §512) for copyright infringement before anyone quite realized how a YouTube could become a massive infringement machine that prints money for its owners.

When rights holders complained that these platforms were infringers (or at least beneficiaries of infringement), the answer was always some variation on the themes …  It’s not us.  Its the users.  We don’t control what gets uploaded. We’re just a neutral platform.  And so on.  Thanks to that liability shield negotiated by Verizon, AT&T, et al in 1998, Google and the other major platforms got away with the circular logic that “the internet” is simultaneously “just a dumb pipe” and also a network of such inestimable value that no cyber-policy may be altered—other than, of course, by Google and the other major platforms.  They are at liberty to alter the internet all they want because they do so many nice things for us—and all for free!

In 2012, concurrent with the not-so-grassroots defeat of SOPA/PIPA, Google’s lobbying expenditures went from negligible to competing among the top five in the nation; and the major platforms also formed the Internet Association to advocate policy in its interests.  That’s business as usual, and industries have every right to form such organizations, but this new coalition of tech giants was also contemporaneous with the anti-SOPA narrative in which the Motion Picture Association of America a) had allegedly tried to force legislation that would “break the internet”; and b) represented “old thinking” about content, copyright, and digital-age piracy. 

Let us now leap over the past seven years to the present—a time when the major internet platforms—most demonstrably Facebook—have revealed many of the darker consequences of their hands-off, disrupt-culture approach to platform moderation.  Amid this still-developing narrative, came the big news last month—though it should not have been the least bit surprising—that Netflix would leave the Internet Association and join the MPAA.  Because content is still king.

As described in my post of October 2015, Netflix is not an internet company; it’s a motion picture studio that happens to distribute via the internet.  New opportunities to measure viewer data notwithstanding, the simple reality is that the more “tech” companies invest in original programming, the more they will naturally find common ground with the policy interests of the MPAA et al. In that regard, a January article in Variety speculates that Amazon—with its slate of multi-award-winning shows—could be next to join the big studios.  Either way, the swing of this pendulum does suggest a new premise:  that perhaps the internet industry does not have (to use the technical term) jack-shit to teach content creators about copyright or piracy—and let’s not even talk about whatever the hell the “economics of abundance” means.

In fact, if one looks at YouTube’s Copyright Match response to the realization that their own creators do not like having their videos infringed by other YouTubers, maybe the “new” industry actually has something to learn from the “old” one about protecting creative works.  Meanwhile, as the traditional media/entertainment companies continue to migrate toward streaming and other contemporary models of distribution, they will surely learn much from a pioneer like Netflix.  But this will not change the raw investments of time, talent, labor, and money required to produce new works, and so it will not diminish any producers’ interest in protecting and enforcing copyrights.  

In this context, I am reminded of a story from January of last year in which songwriter/performer Blake Morgan found himself having to explain to Spotify executives that music was in fact the product they were selling.  One might think this is not a very high mental hurdle to clear, but Morgan describes that some in the meeting became rather heated in their defense that, no, Spotify was the product.  Because, of course, we launch that app just to look at the interface?

Time will tell if there will be any significant future defections from the Internet Association, though its members are not without vested interest in a range of policy areas.  But to the extent that union was formed in response to proposals like SOPA and to advocate against copyright enforcement, the departure of members who are now major rights holders serves as a long-overdue reminder about the difference between creative works and the technological means to access or distribute those works.  As the platform owners love to repeat in their own defense against liability, the internet doesn’t produce anything; it’s just a dumb pipe.

You’re Watching Too Much TV—All Because of Copyright!

An editorial appeared in The Hill written by Martin Skladany, associate professor of law at Penn State.  Titled To curb dangers of media consumption, let’s reconsider copyright law, the article comprises an incoherent litany of social complaints; but to the extent one can glean any thesis from its dissociated and unsupported declaratives, I suppose it would be the following:

“…excessive copyright protection has turned art – which is meant to inspire us intellectually and support us emotionally, to enable us to cope with the uncertainty of life and the finality of death – into a glossy corporate weapon that Hollywood wields to effectively imprison vast swaths of society.  ‘We the people’ are ‘doing time’ in front of a screen.”

In sum,  Skladany thinks Americans have become mush-headed and morally depleted (as evidenced by our vitriolic political climate) because we are watching too much filmed entertainment; and the underlying cause of this addiction is strong copyright law, which enables “Hollywood” to keep us hooked on their “glossy” (i.e. frivolous) wares.  I have to say, as someone who’s never seen Game of Thrones and is more likely to be found reading than watching TV, that Skladany is behaving like a highfalutin prig; and in doing so, manages to make a hash of copyright law, art, filmed entertainment, journalism, and the topic of media gluttony all at the same time.  

For one thing, I have no idea on what authority he declares that the purpose of art is to “inspire us intellectually and support us emotionally, to enable us to cope with the uncertainty of life and the finality of death”?  Really?  Is that what Bukowski is doing?  Or David Lynch? Or Banksy?  Or Shakespeare for that matter?  Artists may hope to inspire intellectually at times—though certainly not always—but if indeed they were merely the self-help gurus Skladany seems to think they should be, their works would be intolerably tedious. 

If Skladany wants to propose that entertainment and news reporting have merged in a way that is unhealthy for journalism, that would be a hard premise to refute and certainly makes a worthwhile discussion on its own. Or if he wishes to opine on the not very original theme that “low art” tends to be more popular than “high art,” that’s also a separate conversation, albeit a purely academic one.  But neither of these topics justifies lumping all content that appears on all screens into a single category, labeling it “corporate mind control” and then, bizarrely, diagnosing copyright law as the underlying infection causing a social disease.

Like other academics of his ilk, Skladany refers generically to “Hollywood” as though all filmed entertainment emanates from a monolithic institution—one which is allegedly doing our thinking for us.  This is oxymoronic, like saying “Democratic Party Conspiracy,” because just like Democrats couldn’t organize a conspiracy of two, the diverse range of television and motion pictures in the market represent thousands of individuals with a million competing and interrelated ideas, aesthetics, values, egos, agendas, and resources. 

Some of those individuals are brilliant, funny, poignant, serious, etc. and have a talent for expressing themselves in ways that deserve to shape our thinking.  We call this art.  And the way of madness lies in Skalandy’s arrogant implication that we can parse which of these expressions comprise the “better” art in context to his assault on copyright law.  Or to put it another way, I think the world would be better off without reality TV, too, but copyright law has nothing to do with the fact that more people have seen The Apprentice than the oeuvre of Francois Truffaut.

It is unclear whether Skladany means to be imposing a value judgment about what he considers to be the “art” and “non art” among all motion pictures and television; but clearly he harbors such an opinion, or his perspective would make even less sense than his presentation.  He writes, “Reducing copyright’s excessiveness will hurt professional reporters and non-corporate artists to a degree, but, more significantly, it will also level the playing field with corporate entertainment.”  (I’ll let the “hurt to a degree” go for the sake of the larger point.)

By “excessive” copyright law, Skalandy refers solely to the duration of protection—certainly it is the only example he presents—and it is frankly impossible to fathom how shortening copyright’s terms would “level the playing field” and thus enable the “art” of filmed entertainment to better compete against the “non art” of filmed entertainment.  And this is assuming that all “art” content comes from independent creators while all “non art” comes from corporations, and as though no symbiosis exists between these two worlds.

Of course, parsing the “good media” from the “bad media” does not appear to be Skladany’s real goal.  It’s not that we’re watching too much low-quality material in his view, it’s that we’re watching too much, period—spending far too many hours glued to whatever the digital-age version of the boob tube is in lieu of more admirable pursuits like “volunteering” or “going to social events.”   This is where he truly wanders off on thought safari as pertains to copyright law.  I mean, even if we consider his opinion to be valid in this regard, what in blazes does copyright have to do with it?  I was going to watch Jessica Jones tonight, but now that the copyright terms are shorter on that show, I guess I’ll go volunteer at the homeless shelter.  Seriously?

Skladany is free to opine that Americans ought to be engaged in more useful activities than watching stuff on screens, but nothing about his credentials as a law professor, nor anything in this editorial in The Hill, suggests that he has anything fresh to add to that particular conversation, which began shortly after the first TVs were sold.  This is just one of several examples illustrating his lack of intellectual discipline, choosing instead to toss a bunch of haphazard ingredients into an anti-copyright casserole, serve it up half-baked, and expect people to eat it.  Or as my friend Neil Turkewitz stated in his response to yesterday, “…it may be the worst ‘academic’ piece I have ever read.”  

There is much more one could write in response to Skladany’s editorial, not least would be to rebut its underlying theory that weakening copyright would “level the playing field” rather than simply weaken individual authors.  But as he has not provided even a hint of support for this premise, it seems sufficient for now to say that he is simply wrong.

Black Panther & the American Creative Continuum

When Black Panther opened last month and proceeded to set records at the box office, it just so happened to be 200 years, almost to the day, after Frederick Douglass was born into slavery in Tuckahoe, Maryland. The significance of this particular symmetry might be observed through any number of lenses, including those distorted by presentist emotions, which tend to warp historic narrative. But one truth that unquestionably sits between these parenthetical milestones is a reminder that the progress of American democracy—namely the effort to define and shape its grand promises—has always been literary.

In his Narrative of the Life of Frederick Douglass, an American Slave, Douglass describes his introduction to literacy by Mistress Auld, and the consequent lesson inherent in Master Auld’s rebuke, as follows:

“From that moment, I understood the pathway from slavery to freedom. It was just what I wanted, and I got it at a time when I the least expected it. Whilst I was saddened by the thought of losing the aid of my kind mistress, I was gladdened by the invaluable instruction which, by the merest accident, I had gained from my master. Though conscious of the difficulty of learning without a teacher, I set out with high hope, and a fixed purpose, at whatever cost of trouble, to learn how to read.”

While still a fugitive, Douglass registered this book for copyright in 1845, and it was more than a year later that his friends purchased his freedom from Thomas Auld. This overlap in time, when Douglass owned intellectual property while he was still technically the property of another man, says a lot about the painfully bipolar identity of America, but it also reflects the fact that the evolution of the nation’s literary voice has always been intertwined with broadening the initially too-narrow meaning of American liberty.

As the last of the witnesses to the Revolution were dying off, the first generation of Americans born under the Constitution—most of the population was under 30 circa 1840—inherited the exciting, and often harrowing, task of defining what it actually meant to be American. For some, this entailed reconciling the declarative chutzpah of independence with the many social and political hypocrisies that manifestly betrayed all the beautifully-written hubris of the Framers. And one answer to this dichotomy was the advancement of a national literature.

By the time Douglass published Narrative, a literary revolution was already reshaping the fledgling nation. In an 1837 address at Harvard, Ralph Waldo Emerson called upon America’s next generation to produce literature that shed reliance on the conventions of England. “Our day of dependence, our long apprenticeship to the learning of other lands, draws to a close. The millions, that around us are rushing into life, cannot always be fed on the sere remains of foreign harvests. Events, actions arise, that must be sung, that will sing themselves,” he said in his opening remarks.

Any reader of Walt Whitman’s poetry will note Emerson’s use of the verb sing, and indeed “Leaves of Grass,” first published in 1855, was one of the most famously overt responses to this summoning of national identity through creative expression. Whitman was among the authors—others included Hawthorne, Melville, and Whittier—who coalesced around the newspaper The Democratic Review, founded in 1837 by John O’Sullivan. The mission of the Review was to advance a younger, more diverse, and more expansive vision of democracy through a literature of “original works treating commonplace themes with forcefulness, directness, and dignity,” writes historian Edward L. Widmer in his book Young America: The Flowering of Democracy in New York City.

This was America’s first generational culture clash, in which the Young Americans, as Widmer describes, stood in opposition to an older and more conservative population of Whiggish elites. It was this literary-political agenda that shifted the cultural center of gravity from Puritan Boston and Philadelphia to riotous, diverse, petulant, exuberant, and unabashedly commercial New York.

While a proper schematic of the social and political views among these forces is too complex to describe in a short post,* the emphasis on prodding the American creative voice into its own was intertwined with the general aim of expanding the promise of civil rights and dignity to a plurality of American citizens. “I speak the password primeval … I give the sign of democracy;/By God! I will accept nothing which all cannot have their counterpart of on the same terms,” wrote Whitman, who, interestingly enough, was an advocate of copyright as an engine of democratic principles more than one of economic necessity.

In the narrative of the ever-evolving American voice, we can draw a line from Douglass literally stealing literacy to transcend his captivity to the moment when Mark Twain in a single sentence in Huckleberry Finn simultaneously obliterates moral ambiguity about slavery and asserts the power of vernacular in American literature. “All right then, I’ll go to hell,” says Huck upon his decision not to turn in Jim as a runaway slave. From there, we can draw a long but clear arc to the video review by Danielle Radford for Screen Junkies in which she explains why Black Panther is “black as fu©#.” Because its cinematic language employs a vernacular that is uncommon among Hollywood blockbuster movies.

Yes, Black Panther is just a Marvel action film full of chases and fight scenes and magic, as expected. But that’s why it’s significant. As Radford describes, its subtle choices—the million tiny decisions where film artists are truly at work—broaden the cinematic language in a way that actually reverses her opening declaration. The relevance is perhaps not that the film is “black as fu©#” but that it’s American as fu©#. And it has always been the role of creative artists to write and revise exactly what that means.

*In particular, the subject of abolition among the various factions would require a whole post just to set the stage.