Category: Intellectual Property

Big Tech Still Full of BS on Piracy

Following the loss of Robin Williams, my kids were in the mood to re-watch Disney’s Aladdin.  We thought we had a VHS copy of the film, but I bet mine is not the only household with a few VHS jackets containing the wrong tapes inside.  (See kids, this is why we put things back…) Anyway, not so much with the tape, I never did get around to buying a DVD; and so I checked Netflix and iTunes, neither of which had the film in its libraries.  I’ll order a DVD or something the next time I think of it, but I share this otherwise unremarkable anecdote because it seems to me that many very serious people would have us believe that what happened to my kids as a consequence of this postponed desire is quite extraordinary.  They lived!  They even shrugged off the deferred desire to watch that particular movie and resumed their otherwise normal lives.

What I’m saying might seem obvious to the average reader, but it turns out highly-paid, fully-grown professionals would equate the mundane experience I just recounted with deprivations like hunger, thirst, or disease in order to justify media piracy as though it is the only rational response to whatever barriers stand between the consumer and 90 or so minutes of entertainment.  The self-righteousness with which this premise is consistently proclaimed and repeated — and taken seriously by lawmakers — is nothing short of an embarrassment in a world where an estimated billion people don’t have access to safe water.

Recently, TorrentFreak reports that Google, Facebook, and Microsoft rejected Australia’s anti-piracy proposal, and as usual, the CCIA is playing another variation on the familiar theme that piracy is a consumer reaction to producers’ failures to deliver unfettered access at a “fair price.”  To quote:

“…CCIA director Jakob Kucharczyk says that any new scheme should employ a “holistic end-to-end approach” and be coupled with efforts by content providers to give customers the content they need at a fair price.”

First of all, as a former corporate communications guy, let me say for the record that when someone employs a redundancy like  “holistic end-to-end approach,” he’s blowing smoke straight up your ass.  These are words used by people who either have no solution to a problem or do not seek a solution to a problem because they don’t acknowledge that there is a problem.  That’s what’s happening here.  The CCIA, speaking on behalf of Silicon Valley, is saying piracy is a) not a problem, and b) if it is a problem, it’s the producers’ fault because consumers aren’t getting what they want.

The funny thing is I agree prices aren’t fair.  They should actually be considerably higher in most cases.  $1.29 for a song in 2014 is equivalent to $2.35 in 1990 just before us Gen Xers — yes, we were actually the first adopters of all this stuff — got online.  Has the cost of living for the several people who made that song possible gone down? Of course not. Granted, prices and wages have failed to keep up with the cost of living across many sectors, which is why we’re seeing a shrinking middle class, but it isn’t going to help if the next generation of consumers buys into this ridiculous narrative that they’re getting a bad deal on discretionary purchases that are widely available and already quite cheap. Spotify for music is just one way the consumer is certainly not getting hozed; unfortunately, though, songwriters and artists are; so there’s a problem that needs a “holistic” solution and fair pricing that’s legitimately fair to the next generation of musical artists.  But of course, that’s not what Mr. Kucharczyk meant.

It’s understood that this is how big, corporate interests play hardball.  The Internet and consumer electronics industries have a financial stake in continuing to reduce the value of professionally produced media until the musicians and filmmakers and other creators around the world are left with no choice other than to make deals with the only devils left standing.  Now, I personally think these guys are straight up pigs, but the only way they’re going to get away with owning the universe is if the consuming public allows them to do so by believing this story.  But I actually don’t believe people are quite that cynical or naive.  Sure the short-term lure of instant gratification without cost is tempting, and it becomes easy to rationalize; but bit by bit, people begin to understand that it is patently absurd to love iPods and HD TVS without any media to play on them.

History Loop: Film & Copyright

Last weekend marked an anniversary in copyright and film history.  On August 24, 1912, the 1909 Copyright Act was amended under the leadership of New Jersey congressman Edward Townsend to protect motion pictures as a medium distinct from photographic works.  In the century that has since passed, filmed entertainment became, and continues to be, one of the most important products made in the United States, both culturally and economically.  That extending copyrights to protect the medium itself was a legislative move of unprecedented value to society is, I believe, beyond question.  Yet, for those who know their film history, 1912 does unavoidably draw the mind to American cinema’s uniquely turbulent beginnings.  While it may be tempting, as certain critics read what follows, to vilify copyright law because of the players involved at the time, that would be missing the more subtle idea that we may be witnessing a historical remake of sorts with a very different cast of characters.

From the earliest days of working motion picture technology, the craft, the business, even the film stock itself was volatile.  “The flickers,” as they were called, literally used to explode, but people made and watched them anyway, using projection booths lined with sandbags to mitigate potential mayhem.  What better metaphor could one possibly find to express the passion Americans feel about their movies?  Just as they were called “vulgar” at the turn of the last century while audiences viewed them in secret, today we still love the movies even when we’re complaining about them. And the number of Americans who work in some way related to the technology of moving images is far too varied and nationally dispersed to be described by the single word Hollywood.

But before there was a Hollywood, the center of American motion picture production was indeed New Jersey, and the major producers grew as extensions of the manufacturers and patent holders on the technologies that made film possible.  There is no getting past the fact that these business owners were ruthless men or that the Townsend Amendment, proposed as it was by a New Jersey representative, was almost certainly one component of a tactical design to maintain exclusive ownership of all production and distribution.  While it is not unreasonable to say that contemporary, independent filmmakers are courageous, it’s worth noting that around 1912, being “indie” could get you killed.  In fact, the studios we think of today as “Hollywood” were all founded by independent filmmakers, some who risked life and limb to defy an illegal cabal known as The Patents Company, comprising producers like Edison, Vitagraph, Biograph, Kalem, and Selig.  Also known as The Edison Trust, these producers attempted to use injunctive power to control production based on certain patent claims.  One particularly flimsy claim was ownership of a process called The Latham Loop, which rationally parallel’s the contemporary move by Amazon to patent the process of photographing items on a white background.

Anyone who has ever loaded a film camera or projector knows that one must make loops above and below the film gate in order for the celluloid to pass smoothly, advancing one frame at a time.  The Patents Company laid claim to ownership of this process — a claim that was rejected — and since they could not rule by law, they employed other methods, including intimidation and violence to stop independent projects by such filmmakers as Carl Laemmle, founder of Universal Pictures.  A common practice, according to the pioneer director Allan Dwan, was the use of snipers to fire at the cameras to disable production, but there were also assaults and shootings of production workers.

The storybook version of film’s migration to California is all about sunshine and the accessibility of varied locations, but a more acute motivation for the westward trek was the independents’ need to get away from the Patents Company and their heavies. Allan Dwan is among the best witnesses to this transitional time, beginning his career on the East Coast, then establishing one of the earliest California studios, Flying “A” Studio in La Mesa, CA.  He explains in Peter Bogdanovich’s wonderful collection of interviews Who the Devil Made It? that it was smart practice to film scenes in remote locations because proximity to a railroad put your crew within reach of Patents Company goons sent across country to break up the shoot.  Additionally, because of this persistent threat, many of the gun-wielding cowboys and gangsters in those two-reelers were in fact gun-wielding cowboys and gangsters, who served as both production security and as background characters.  Dwan tells the story of one encounter with a Patents Company thug, who arrived one day in La Mesa:

 “We took a walk up the road to talk it over.  I hadn’t been out of college for too long and was in good physical shape. So I wanted to get him far enough out of town to see if I couldn’t beat his brains out. We stopped at a bridge over an arroyo where people had thrown some tin cans.  There was a bright one sitting out there, so to impress me he whipped a gun out of his shoulder holster and shot at the can and missed it by about five yards. I pulled out my gun and hit the can twice, and that afternoon he left town. He was accompanied to the depot by my well-armed cowboys.”

Of course, Dwan and his contemporaries went on to become part of the studio system, which produced just about every classic motion picture that ever made a fan or  budding filmmaker fall in love with the movies.  Yes, business was still business, and as in all business, there were villains and heroes and plenty of prosperity and heartbreak to go around; but the important shift with the triumph of Hollywood over the Edison Trust was a move away from technology-based claims on the right to produce toward competition among the studios predicated on the talent they could get under contract. And from the late 1930s to the late 1960s, this system produced an extraordinary volume of films, including at least a few titles that will be on any enthusiast’s desert-island list.  This contract-based system laid the foundation for the next inevitable phase in the industry — name recognition and the transfer of power to individual artists.  Yes, this began with movie stars, and to be sure, not every actor is a great director or producer, but the breakup of the studio system coincides with the ability of individual artists in several disciplines to control their work based on their capacity to draw a crowd.  As a result, most feature films today are produced by hundreds, if not thousands, of independent production companies.

A century and some change since the Townsend Amendment, we’re reviewing copyright and arguing about its relative value in a time antithetical to all that the Latham Loop represents.  Where once manufacturers who held patents on technology tried to hyperextend their control over creative works, today’s manufacturers and technologists are driven to put more and more means of production in the hands of every prospective filmmaker in the world.  As such, arguments made in the blogosphere and in congressional chambers say that low-cost digital capture technology combined with Internet-enabled distribution models means that copyright loses relevance in this “new market.”  But what I find interesting at this moment in history is that it seems to me those who assert such claims are making the same mistake as the Patents Trust Company — looking at films as though they are produced by the tools rather than the people who wield the tools.  Affordable, digital cameras and free distribution on YouTube have nothing to do with the value of a film being protected under copyright. What’s being protected by copyright is what a film makes us feel; and so this recent anniversary, though it pays some reluctant homage to men of dubious intent, is indeed a celebration of the American filmmaker.

Helen Wong Shares Views on Piracy

Dear Helen Wong and especially the Editors of The Daily Californian:

On today’s opinion page, I see that you have decided to share your thoughts (we’ll call them thoughts) on the subject of piracy, predicated on your desire to see the film Captain America: The Winter Soldier.  After trying unsuccessfully to view this film through a legal and relatively cheap channel, you found yourself forced to pirate the film via a torrent site, a technology you say you’ve come to rather late. Indeed.  This experience prompted you write some of your observations on the subject of piracy, and the editors of your newspaper thought these worthy of publication.  But, Helen, not only are you late to the game of using pirate sites, you’re even later to the game of expounding on your bullshit rationalizations for doing so.  I mean, Girl, your statements from beginning to end are so six years ago.  I quote:

“Theft refers to the removal of the original material, while piracy means making a copy. If music were to be treated as physical property, then laws that absolutely prohibit illegal downloading would have to be passed. That’s not the case.”

This is how your whole article reads.  It’s filled with careless generalizations like these three little sentences that suggest you’ve found a tattered copy of the pirate manifesto somewhere but haven’t bothered to do any research or even more than a few minutes thinking on the issues implied.  “Laws that prohibit illegal downloading would have to be passed?”  Does it occur to you that if there were no such laws, the downloading would not be illegal? That’s just careless writing.  But tell me you’re not late to using Google because you certainly might have expended just bit of effort checking to see if, for instance, Amanda Palmer’s “success story” has any holes in it, or discovered that Radiohead’s Thom Yorke has actually been very vocal in recent years about some challenges in the digital age. Most importantly, a bit of research might have shown you that the subject of piracy as a promotional vehicle is, at best, controversial but that most producers of works don’t see it that way.  In fact, in your offhand and typical comment about “Marvel and Disney having made enough money,”  as a justification for your actions, you didn’t even bother to check that Disney is not a producer of the film but is a distributor.*  This information is freely available on a website called IMDB.

Now, I know I’m being unkind and that everything implied in the paragraph above would require some effort.  You would have to ask yourself journalistic questions like, Do I have my facts straight?  Is what I’m writing current or outdated?  And in so doing you would have to spend up to several hours coming up to speed on the subject of piracy and perhaps then offer some original observations on the matter.  Had you done this, Helen, the most important lesson you would have learned is that journalistic writing, like filmmaking and other creative crafts, require work to do well, and that work has value.  Had the makers of Captain America skimped on process as you did in this article, it would not be a film you’d be interested in seeing, which brings us to the matter of its presently limited distribution.

Captain America:  The Winter Soldier cost $170 million to produce, and if you think that’s too much, perhaps they should cut some corners like skip the process of compositing.  You don’t know what compositing is? Let’s just say that it’s one of several hundred steps performed by skilled professionals in order to make this film something you were eager to see in the first place.  All those steps cost lots and lots of money — 170 million dollars lots — and you are in absolutely no position to know whether or not the investors have made the kind of return required thus far for them to invest in the next Marvel project.  It may seem greedy for the film’s owners to limit the distribution to sales for the time being, but there’s a window of opportunity when a film like this recoups its investment from a big pie chart of revenue streams (e.g. DVD sales), and then the film becomes available through cheaper channels.  You’ll find this is a pattern consistent with the distribution of many products.

Here’s a thought, Helen.  While waiting for this or any other film to become available as a low-price rental, I might suggest checking out any of several thousand movie titles you have yet to see in your young life that are available right now through various affordable and free channels.  Alternatively, you might also Google the word “library,” and discover that you very likely have one of these mythical facilities in your community and that they either have or can get you a DVD of Captain America: The Winter Soldier that they will let you borrow for free.  But I know you wanted to stream it to your computer in the very moment you felt the whim to see it.  I hear that.  My kids do the same thing sometimes.  They want what they want when they want it.  But sometimes they have to wait for what they want, and in the meantime, they often have other experiences of equal or greater value.  In the meantime, they learn to be citizens.  Just like my twelve-year-old has to do her homework, she’ll one day learn that somebody has to do a thing called compositing in order for her to enjoy a high-tech action movie and that journalists have to do some research before they write articles worth reading.

*Disney does own Marvel Studios. I should clarify the point that it is all too easy to just point to big names and forget that there are multiple entities with real-life employees involved in these types of films.