Category: Television

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.

Motion Picture Unions Opposed to FCC Set-Top Proposals

Photo by ponsulak Pond 5.
Photo by ponsulak Pond 5.

As noted several times on this blog, it takes a lot of highly skilled people to make a film or TV show, and these people generally do not own any copyright interest in the works they help make or any equity in the production companies.  Motion pictures and television production is a project-to-project business. Crew members and performers are not full-time employees of either studios or production companies and may go months between jobs; they’ve been “gig-economy” workers since long before anyone thought that term was a new thing.

Just like most labor in the United States, today’s motion picture craftspeople are the beneficiaries of hard-fought rights—many negotiated decades ago—to share in the financial rewards of successful products they do not own.  Films and TV shows are mostly made by middle-class, freelance workers whose average, annual incomes comprise not only day rates and overtime, but also residuals and health and pension benefits.  These terms are negotiated and managed for most crew and performers by the unions DGA, SAG-AFTRA, and IATSE. These unions are opposed to the FCC “Set-Top Box” proposal because, as it stands, the proposal would break the licensing structure on which their compensation packages are based.

To be a sustainable workforce, performers and crew members generally need to remain on the net-positive side of several averages—average number of days worked, average number of shows worked that succeed, and average number of shows that succeed in the market overall.  By taking the macro view of the ways in which these workers are compensated over time, it’s very much a rising-tide-raises-all-boats paradigm.  The successful show that Props Master A works on feeds the health and pension program of Make-up artist B, who might work a show that doesn’t make it. The spread of investment across multiple shows keeps the pool of skilled labor generally sustained among the various gigs and periods of unemployment between gigs.

Photo by sokolodv Pond 5.
Photo by sokolodv Pond 5.

It should be clear to anyone that if you disrupt the means by which labor is compensated, labor has a habit of not working.  And as stated in previous posts on this subject, the FCC proposal cannot be called a consumer-focused plan to introduce better and cheaper TV options if the plan simultaneously kills the means of production. This is exactly what the proposal can do by enabling companies like Google to create a parallel, commercial video service without licensing any of the programming.

It’s Not About Boxes

FCC Chairman Wheeler emphasizes the amount consumers spend renting set-top boxes from cable companies, and then “digital rights” groups like EFF and Public Knowledge echo the sentiment that this proposal is about innovative technology (just like the VCR) that will give consumers more flexibility in viewing options for programming that we’re already paying for. And it will unleash us, they say, from the rental boxes owned by the cable companies.  But the rental fees thing is a smokescreen for what’s really going on because the box rental part of our cable bill isn’t the biggest line item; there’s nothing in the proposal that would technically lower the cable bill; we’re free right now to go buy boxes and not rent from the cable providers; and the new licensing market is already providing consumers with viewing options way “beyond the box.”

The big talking point that is most likely to confuse consumers is that the new box Google wants to sell us would only make programming available for which “we are already paying” via the Multichannel Video Programming Distributors (e.g. cable companies).  This is the central reasoning why supporters of the proposal claim that it does not implicate a copyright infringement, and it’s the kind of talking point that will sound reasonable to consumers.

But this reference to our subscription fees completely misrepresents how the producers—and therefore all the labor represented by the unions—get paid for the programs they make.  Our subscription fees to MVPDs do not pay to produce multi-million-dollar TV shows; they never could.  The license fees paid by the MVPDs to the producers are what pay for production, and those licenses are predicated on a complex variety of ways the MVPD expects to exploit its limited or exclusive access to the content.

The simplest and most obvious example is advertising. If, under the FCC proposal, the MVPD that has licensed programming is forced to deliver that programming free of charge to Google, which may then re-distribute the content however it wants and then advertise against the programming from its own ad services, the MVPD’s ad revenue will go down almost immediately.  So, when a new slate of shows is produced, the MVPD’s incentive to pay current market-value license fees is diminished while Google, which captured part of the ad market, isn’t paying anything at all.  Secondarily, new-market distribution channels like Hulu would see no incentive to license programming under such a regime, which gives lie to the notion that this entire proposal is about competition to benefit consumers rather than what it is, which is a government giveaway to Google.

I never quite understand why it should be hard to recognize that less is less—that if license fees for programs go down or if new channels for licensing are cut off, there can be no result other than less production or production of lesser quality. And the FCC proposal would appear to create exactly these conditions—possibly more quickly than people think.  The producers and MVPDs aren’t blind.  If the FCC proposal were to pass, they’ll revise their business strategies immediately, and that could include producing a lot less work within just a couple of years.  At a time when we’re clearly seeing a Golden Age of the small screen in quality writing and production—and in flexibility of viewing options—it is unfathomable that the FCC would advocate unraveling the licensing regimes that have made all this bounty possible.

What’s in it for Google?

I know I’ve repeated Google in this post despite the fact that there are other manufacturers hoping to sell boxes under the FCC proposal.  But if the value of getting into this line of business is predicated on advertising and data mining—which it has to be—it’s pretty hard to imagine that Google would not very quickly dominate this space and become the only game in town.  I understand Radio Shack, for instance, plans to make boxes, but as that company doesn’t have an online ad business or a data mining business, their boxes would presumably serve Google’s pipelines for a piece of the revenue.  If that’s how this would shake out, the “competition in boxes” story is pure illusion.

If the producers, the MVPDs, and the unions are all correct that this plan can only undermine the means of production and inevitably reduce production quantity, quality, or both, what does even Google—let alone the rest of us—gain in the long-run?  When variety of quality content is reduced, then advertising value is reduced and so is data mining value.  Google has a long track record of earning revenue by exploiting works it hasn’t licensed; but in this case, its parasitical model can actually limit the means by which the company typically generates revenue.  So, what’s the long-term plan here?  It’s hard to say. But it’s not hard to see in the short term how this proposal is bad for creators in the film industry and bad for consumers who want to see great television continue to thrive.

KPMG Report – Movies & TV Widely Available on Legal Services

I’ve lost count at this point how many times and ways I’ve rejected the premise that piracy is a consumer-driven response to claims of scarcity in the market, especially in the United States; but now KPMG has released the results of a study of motion pictures and television programs that rebuts such pro-piracy claims with actual data.  You can read the details of the report for yourself, but suffice to say that if you’re an American, you really have no excuse not to be watching filmed entertainment through one of many available legal channels.  From my point of view, the KPMG report doesn’t reveal a lot that cannot be surmised anecdotally simply by scanning available titles on iTunes, Amazon VOD, Google Play, Netflix, Hulu, and so on.  But the report does verify these casual observations for anyone seeking a more methodological examination.

Naturally, KPMG could not study every possible title and account for every taste, but by looking at a sample of 808 unique films with measurable popularity based on revenue, critical acclaim, and awards, the firm found that 94% of the films studied were available on at least one (and in most cases several) of 34 legal distribution services included in their research.  These services included Subscription Video-On-Demand, ad-supported Video-On-Demand, and Electronic Sell-Through services.  The study did not even include TV-everywhere services or online catch-up services offered by networks for fans who might have missed episodes when broadcast.  Naturally, the report also does not look at original programming for web-based networks like Netflix’s House of Cards, though shockingly enough, these programs as well as network titles made rapidly available on such services are still pirated in remarkably high numbers.

Data aside, I can say personally that I currently use four non-broadcast, web-enabled services these days and still don’t have time to watch everything of interest. And so, I continue to wonder what kind of ultra-leisurely lives are led by those who complain about a lack of access to filmed entertainment.  Simply put, if you need pirate sites to feed your demand for these media, you have WAY too much time on your hands. Certain individuals may claim that specific titles of interest cannot be found through any legal channels, and such complaints often give way to over-reaching claims that piracy is about preserving culture; but year after year, sites like TorrentFreak reveal that the most pirated titles are, not surprisingly, the most popular titles according to the same kind of criteria used by KPMG for its study.  All highfalutin claims aside, if pirate sites had to rely on fans of arcane, art-house cinema, they would all fold.

To put the time thing in perspective, if we only count the titles included in the KPMG study, they translate into roughly 6.5 hours of viewable material per day for a whole year.  I don’t know any adults with full lives, jobs, responsibilities, etc. who have 6.5 hours a day, every day to watch TV shows and movies. The only people who have that kind of free time are children, who really shouldn’t be watching that much of anything, legally or otherwise.  And I suppose adults who possess great wealth might have that kind of time on their hands, but then they can afford all manner of access to media and are far more likely to spend their leisure time sailing or heli-skiing or something more exotic than six-plus hours a day watching TV and movies.  So, claims of scarcity by anyone in the US at least really need to be scorned and then ignored for the adolescent whining that it is.

One aspect of this subject I do find interesting is that despite chronic claims by various pundits and consumers that legacy industries need to “adapt,” the filmed entertainment industry has actually responded very rapidly to changes in viewer habits and desires as consequences of changes in technology.  In fact, industry-wide modifications and even experiments in distribution have been virtually in synch with advancement in the capacity to send and receive high-quality video signals worthy of our high-quality monitors and televisions.  One chart on Page 8 of the KPMG report shows a trend in decreased time between primary and secondary release of motion pictures, and this downward curve over the period studied more or less matches the technological improvements that make services like Netflix and iTunes work in the first place.  When you consider the scope of these industries as well as the number of potential stakeholders in a particular title (e.g. the number of licensees involved), the industry as a whole has actually done a pretty good job of keeping up with the times.  I get that there remain a number of Veruca Salts out there singing “I want it now,” still unsatisfied perhaps with a three-month window between a theatrical release and a low-cost, online rental; but certain demands are  simply unreasonable if we’re to have a market at all.  Of course, while waiting for that one title to become available, the KPMG report shows that even Veruca has legal access to about 585 hours of other things she can watch.