Category: Intellectual Property

Jennifer Lawrence in a Nude of Her Choosing

I had to call attention to this article by Megan Garber, writing for The Atlantic about Jennifer Lawrence’s nude photo shoot for Vanity Fair.  The photo itself is brilliant as is Garber’s analysis of it. Lawrence’s calling the hacking of her private photos a “sex crime” is entirely reasonable. And I am reminded why I care about copyright, why it still matters in the digital age, and why those who say, “Forget it, you’re fighting against the future,” are at least lazily cynical and at most hopelessly corrupt.  Permission is the foundation of copyright, just as it is the foundation for respecting another person enough not to “share” photos of her that she did not choose to distribute.  Permission is fundamental to civilization, yet somehow, the principle has been given a bad rap, treated as some sort of elitist barrier we must cross if we are to be free to play with these gadgets.  And I have no qualms asserting that this idea of permissionlessness, which has been championed as a digital-age value does emanate from a sexist psyche.  Permission deserves more attention than it gets.  Permission is the difference between a regrettable one-night stand and a rape.

Lawrence is talking about ethics. She’s talking about law. She’s talking about, essentially, decency in the age of digital reproduction. And she’s also, of course, talking about the tensions that inevitably exist in a world mediated by images. The line between objectification and empowerment is a notoriously thin one, particularly for women. Is that short skirt—or that low-cut shirt, or that nude Snapchat—liberating, or something else? In an environment saturated by images and therefore expectations, where does control end, and victimhood begin? “She” versus “her,” subject versus object … images, whether sent or stolen, capture all of those things.

Read Megan Garber’s full article here.

Unrepentant Bad Thinking on Piracy

Jenna Wortham, technology writer for The New York Times, offers this article in which she questions the illegality of IP theft online.  Titled, The Unrepentant Bootlegger, Wortham begins with a description of what some may consider an unjustifiably heavy-handed raid by DHS officers in the arrest of Hana Beshara, a co-founder of the illegal media site NinjaVideo, shut down in 2009.  One can argue that non-violent criminals should be arrested in a less dramatic way (though I wonder how that sentiment might apply to insider-trading felons), but that isn’t the point of Wortham’s article.  No, her thesis asks wether or not Beshara’s actions ought to be illegal in the first place; and I’d like to jump to her quote about SOPA near the end of the article because so much of her inquiry poses naive questions based on false premises like the following:

After the seizure of NinjaVideo and the other sites, the M.P.A.A. pushed federal legislation to continue to crack down on illegal downloading. But the bill, SOPA, was so loosely worded that it could have required all websites to be responsible for monitoring their services for potential violations — an expensive and nearly impossible challenge — prompting sites like Wikipedia, Tumblr and Craigslist to rally online sentiment against the legislation. Outrage about the bill came to a head in 2012, and lawmakers backed off.

This narrative about SOPA has been repeated so many times that even a writer for the NY Times can get away with presenting it as fact. But it just ain’t so. There was nothing about the wording of the SOPA/PIPA bills that could be used to hold US-based websites any more responsible for infringement than they already were in 2011, or than they still are at this moment.  In fact, language in the bills explicitly stated that they do not trump precedent, domestic law. The bills were specifically designed to starve foreign-based sites, dedicated to piracy, of their revenue streams strictly because the site owners themselves operate beyond the reach of U.S. law enforcement.  Wortham’s own emotional introduction to her article, describing the flack-jacketed arrest of Hana Beshara ought to indicate to anyone how utterly unnecessary it would be to have introduced SOPA/PIPA as domestic-focused laws.  Clearly, what Beshara and her NinjaVideo colleagues were doing is already enforceably illegal in the U.S., hence the guys busting into her condo and the 16 months she spent in prison.

The notion that SOPA could have shut down Facebook, et al was the result of well-orchestrated, and well-funded fear-mongering; and I stand by the assertion that (issues of piracy aside) the anti-SOPA campaign was the most successful corporate-serving bamboozlement of the electorate in my lifetime.  The campaign was holistically corrupt in that the very tools being employed to manipulate the political process simultaneously created the illusion that people believed themselves empowered through information to take action.  Never have I seen so many intelligent friends motivated to reaction based on such illogical, let alone unsubstantiated, claims.  Did it not occur to any of my progressive, educated colleagues at the time that in all likelihood no member of congress, no matter what we may think of his/her other politics, would sign the “shut down Facebook and Twitter” bill?  Yet, here we are, almost four years later, and NY Times writers are behaving as though the Internet industry talking points are historical facts.  And that brings us to the crux of Wortham’s article, summed up in this quote:

 Ms. Beshara, however, still can’t accept that what she was doing deserved the heavy hammer of the law. She served 16 months in prison for conspiracy and criminal copyright infringement, but she still talks about NinjaVideo as something grand.

Something grand indeed.  It is astonishing that even when independent artists recite their stories of working for years on a project only to have it hijacked by a pirate site, they’re accused of whining; but when profiteering site founders are busted, they’re treated like martyrs to the cause of culture and smarter business practices.  This narrative that we should credit the NinjaVideos and Megauploads of the world for giving us iTunes and Netflix is another false premise; and it is always perplexing to read declarations about the public “wanting 24/7 on-demand everything for free or really cheap” as though those making such statements believe they’re revealing some profound ethnographic discovery. Really?  People would like instant gratification and would prefer to pay next to nothing for it.  That is a shocker.  If only there were a Pulitzer Prize for the Numbingly Obvious.

The problem is that when writers like Wortham, under the imprimatur of venerable publications, repeat this self-evident observation about consumers and then pose the rhetorical question about the illegality of piracy, they fail to recognize through the fog of their own presumed humanism that they’re in fact promoting an anti-fair-trade market.  This is because it simply isn’t possible to produce all major motion pictures and television in a manner that makes all of these works instantaneously available in every market worldwide and for prices that compete with the unlicensed option of free.  To make such a demand on motion picture producers, both great and small, implies that the stake-holding subcontractors whose skills, labors, and constituent products used to produce these films must have their interests (i.e. means of living) subverted to the exigencies of black-market economics.

Going forward, I expect we will see more and more film projects organized at the contractual stage of development to facilitate early release on legal, web-based platforms — we’re already seeing this occur in some cases — but the conclusion Wortham implies is that the attitudes about piracy are so socially ingrained at this point that we ought to simply accept them and perhaps even praise them as enlightened. This isn’t surprising of course.  Normalizing negative behaviors or trends does have a tendency to screw up perceptions about the consequences of those behaviors.  Articles like Wortham’s remind me of a moment back in college when I bumped into a fellow film major — he wasn’t  the sharpest tool in the shed — one afternoon and he told me he was bummed because his friend had been expelled.  I asked why, and he said that the friend had “set his dorm room door on fire.”

“Um, Dude, that’s arson,” was all I could think to say.

“Yeah,” he replies, “but there’s so much other shit he did that the school never caught him for.”

This was sound reasoning in his mind.  His friend’s miscreant, even dangerous, behaviors had become so normalized that it seemed entirely unreasonable for the college to take disciplinary action.  And that’s the thing about the many thousands of words at this point that have been dedicated to re-contextualizing media piracy.  Call it what you want, but, at a certain point, all we can conclude is, “Dude, that’s larceny.”

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.