Category: Film

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.

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.”

Is a Tech Company Really Claiming Ownership of Marvel Characters?

You may have read recently that some of the major studios, most prominently Disney, are alleged to have infringed the patent rights in a certain motion-capture system used to make blockbuster films like the multi-billion-dollar Marvel movies.  Further, an article like this one in Hollywood Reporter by Eriq Gardner might give a reader the impression that a) the patent infringement allegations are indisputable; and b) that the plaintiff in this case Rearden LLC is claiming to “own” some of the famous CG characters featured in these movies. So what gives?

A lot. But not necessarily what the headlines imply. As for the patent infringement allegations, these are impossible to comment upon at the moment because 1) I know almost nothing about patent law; and 2) the entire backstory as to how Disney and other studios may be implicated is too complex to unravel in this forum. Suffice to say, we’ve got some former technology partners who are no longer friends, some dubious-sounding shenanigans involving the sale (or not) of shared (or not) intellectual property, and an inventor named Steve Perlman (Rearden’s CEO) who seems to have at least a few good reasons to be pissed off at somebody.

Time and the courts will sort all that out, but for the sake of addressing the copyright allegations in this story, we need to assume hypothetically that the studios are implicated in the patent infringement from which the copyright claims stem.  And let’s cut to the chase and clarify that Rearden cannot—and is not—claiming any ownership of the underlying pictorial or graphic works we know as Hulk, Deadpool, Iron Man, etc.  What Rearden does allege is that by making unlicensed use of its MOVA Contour technology, the studios simultaneously infringe Rearden’s copyright in the outputs of this technology.  Hence, cutting through the fog and high drama, the entire copyright claim appears to turn on whether Rearden’s outputs are in fact copyrightable at all.

MOVA Contour’s Outputs

As an example, Mark Ruffalo goes into a motion-capture studio where he grins, shouts, pouts, growls, and raises curiously adorable eyebrows in the mode of his inner Hulk.  He may be directed by the film’s director or some other member of the creative team, or he may self-direct to produce all the faces needed for every scene in which Hulk will appear. These performances, fixed in the computer drives during the process, are indisputably the property of Marvel Studios, which is owned by Disney.

The captured data, consisting primarily of multiple two-dimensional images is then input into the MOVA Contour system, where the software renders a pair of three-dimensional outputs:  what Rearden calls a “Captured Surface” and a “Tracking Mesh.”  These two assets then serve as a highly-detailed, digital armature onto which Marvel-employed animators then composite the CG Hulk, who will then grin, shout, pout, growl, and raise curiously adorable eyebrows in the movie, looking just enough like Mark Ruffalo to make the character transformation seem organic.

Rearden’s Claim

Rearden asserts that, although the Captured Surface and Tracking Mesh are never displayed in the final movies, these two outputs are, nevertheless copyrighted works and, therefore, every CG-composited element built upon these outputs is a “derivative work.” So, absent a licensing agreement to use the software and transfer ownership of the outputs to the licensee, the studios are alleged to have infringed Section 106(2) of the copyright act, which protects the derivative works right.  Indeed, if this claim has merit, it would be quite staggering to consider the number of infringements implicated.  One can almost hear the Hollywood-bashing copyright-haters chomping at the bit; but if that’s the case, they might want to belay the schadenfreude.

I imagine the studios’ motion to dismiss will be denied because the allegations seem to warrant further proceeding. But even if the copyright claim goes far enough to render an opinion by the court, I believe there is ample evidence in both scholarship and case law to conclude that Rearden’s outputs are not copyrightable and, therefore, cannot implicate the derivative works right.

Is MOVA Like Other Software Used to Make Creative Works?

At first blush, one might assume that the MOVA software is akin to using Word or Photoshop, which are used by authors all the time without any fear that Microsoft or Adobe can claim a copyright in the works made with these products—even if the author pirates the software!  But, Rearden counters this premise by saying that because their software produces a specific, repeatable output fixed in a medium, and because this output is produced almost entirely by the “labor” of the software, the analogy to Word isn’t quite right.

The difference they claim relies heavily on the case TorahSoft v. Drosnin (2001) in which defendant Michael Drosnin published a book based on outputs (effectively search results) that were exclusively the products of plaintiff ToraSoft’s algorithm. Rearden appears to be clinging to language in this opinion that supports the possibility that the output from computer software could be copyrightable; but the lion’s share of the opinion actually provides reasons why TorahSoft’s output was not copyrightable. And because much of the court’s reasoning in that case seems applicable to Rearden’s claim, it may be a risky citation.

In response to the assertion that MOVA is comparable to Word or Photoshop, Rearden states,“…in neither case does their work provide input to software that synthesizes an original expression that is distinct from the author’s or artist’s input.”  I wonder if that is, or should be, the standard. After all, between my writing these words and you’re reading them, there are several software authors whose work renders my expression into intermediary “works” that, if they were indeed copyrightable, would mean that everything created with digital tools is a derivative work of underlying works belonging to the tech companies of the world.  I don’t think the courts would view this outcome as compatible with the purpose of copyright.

Are MOVA’s Outputs Expressions or Copies?

Curiously enough, the “sub-millimeter precision” with which MOVA Capture does its job may be the evidence which most disfavors a finding that its outputs are copyrightable.  The standards for protection are “originality” and a “modicum of creativity.”  Originality literally means that the work is not a copy, and so far, “creativity” has been limited to works produced by humans. We may yet address copyright protection for works that are substantially produced by AIs, etc., but in this case, it seems Rearden is arguing that the human expression embodied in the software is tantamount to authorship of the software’s output, which it claims is separately “creative.”

While this may be possible in some circumstance, as TorahSoft seems to imply, I suspect Rearden’s argument will find slippery ground because the courts will view the purpose of MOVA software as one of making copies of performances that are the property of the defendants.  In this context, I believe Rearden’s software, especially as a component of the entire system, may be compared to patented devices that capture images which would strain to meet the standards for protection.

Copyright scholar Justin Hughes, whose paper on photography I have cited in other posts, asserts that a vast quantity of images—security camera footage, satellite photos, Google Street captures, even photos of public-domain paintings sold as postcards—should not stand up to claims of copyright because they lack the modicum of human creativity required for protection.  Assuming Hughes is correct, Rearden’s claim of copyright in its outputs would seem to fail under the same analysis.

More specifically, the case that comes to mind in answer to Rearden’s claim is Meshwerks v Toyota, decided in 2008 by the Tenth Circuit Court of Appeals. In that situation, Meshwerks asserted copyright protection in the outputs from its capture technology used to produce 2D, digital models of Toyota cars for advertising purposes. Supplier Meshwerks actually performed a considerable amount of creative labor—in collaboration with software—to produce the outputs. This stands in contrast to Rearden, whose claim relies solely on the products of the software.  Nevertheless, and with stated respect for the amount of work involved, the court held that Meshwerks outputs were not copyrightable because their purpose was to create the best copies possible of designs belonging to Toyota.  From the opinion, which partly quotes Nimmer on Copyright:

It is certainly true that what Meshwerks accomplished was a peculiar kind of copying.   It did not seek to recreate Toyota vehicles outright-steel, rubber, and all;  instead, it sought to depict Toyota’s three-dimensional physical objects in a two-dimensional digital medium.   But we hold, as many before us have already suggested, that, standing alone, “[t]he fact that a work in one medium has been copied from a work in another medium does not render it any the less a ‘copy.’ ”

So, if we compare this to Rearden’s claim and the Hulk example, Disney certainly did not design Mark Ruffalo, but they do employ him to perform the only creative work in this entire process—that of making faces as Hulk.  And I would argue that, akin to Meshwerks, the function of MOVA software is to copy that performance (in this case, from 2D to 3D). In fact, it is the triumph of the system’s capacity to deliver such precise copies which disfavors a conclusion that its outputs are “original” expressions of “creativity.” The process is no more creative than a CAT scan—far less creative, it seems, than the work performed by Meshwerks, which was held not to meet the standard of protection under copyright.

It’ll be interesting to see if any of the usual anti-copyright suspects come out to play on this one.  Presumably, they should disfavor Rearden’s claim of copyright for many of the reasons cited here, but siding with Hollywood studios may be more than they can bear.

Image by kentoh.