Tag: TorrentFreak

Hypocrisy is as hypocrisy does in copyright fight.

I recognize that it’s vogue to malign the interests of copyright holders, particularly when various pundits recount anecdotes of sympathetic-sounding new creators who find themselves as defendants in a litigation. Recently, Andy at TorrentFreak published a lamentation on the excess and “hypocrisy” of copyright enforcement in the case of Serendip v Lewis Bond.

Mr. Bond, a UK citizen who distributes videos to his monetized YouTube channel called Channel Criswell, posted his 20-minute documentary composed almost entirely of film clips from the works of Stanley Kubrick along with his own narrated commentary. The use of the clips may arguably be a fair use—I admit to scanning the doc and not watching the whole thing—but Bond also synched several music tracks from A Clockwork Orange to his film, and he is now being sued for copyright infringement by Serendip LLC, which owns and manages the rights to the works of composer Wendy Carlos.

Calling it a “Sad Hypocrisy” Andy wants to present a tale in which a budding and talented young filmmaker (Bond is 23) is being unfairly and needlessly squashed by an older artist, who should respect that Bond is simply building upon works the way Carlos built upon the works of others. Andy opines that there is a path other than the courts to a happy place where artists collaborate instead of litigate, which sounds sweet but is entirely missing the point. To emphasize his perspective, Andy makes such a hash of copyright law in general, and the facts of this case in particular, that the only clear hypocrite in the mix is him. After all, it is hypocrisy to believe so firmly in a position on a given topic that one makes no effort to examine the facts of an individual story before adding it to the anthology of “evidence” for that point of view.

To begin, Andy relies on a typical assumption that he knows anything about Carlos’s financial interest in her works and that her current income is in any way relevant to enforcing her rights. He states, “While undoubtedly a wonderful and timeless piece of music, is a track from 1971 really bringing in the money for Clockwork Orange [sic] composer Wendy Carlos today? Has Bond’s fleeting reproduction of a part of this track in his documentary caused real financial damage?”

Here, Andy makes two critical errors. The first is that enforcing IP rights isn’t always about financial damage from the use being litigated. It’s about precedent. One either protects IP or one does not. And if a rights holder lets some infringements go on the grounds that “they weren’t all that harmful,” this can weaken his/her ability to enforce those rights in future cases. The second mistake is that Andy’s assumption of value in this case is apparently wrong. The brief filed by Serendip states that of all of Carlos’s works, the tracks she created for A Clockwork Orange are the ones most in demand and most often licensed for substantial fees. This means that, yes, Bond’s use, if left unenforced, does directly threaten the business in which Serendip manages those rights for Carlos’s works. How much or little she currently earns from this enterprise is nobody’s damn business and also irrelevant to the need for consistency in enforcement.

Andy’s next error—and it’s a whopper—is to go off on a whimsical tangent calling Carlos a “hypocrite” because one of the works in question is not her composition but that of Henry Purcell, who died in 1695. Although Andy seems to think he’s zapped Carlos with a real gotcha here, he fails to acknowledge that master recordings are separately copyrightable regardless of who the original composer is, and that uses of music exactly like those made by Bond — as atmospheric elements synched to a film — require both a synch and a master use license. The underlying composition is either separately copyrightable or in the public domain, as is the case here. Andy describes the music thus: “It is an abridged version of this [Purcell’s] music that forms the entire basis of Carlos’ 1971 work. Arrangement and beautiful synthesizer work aside, it’s virtually identical.”

Nope. It’s just identical. Because if one simply looks at the playlist for the film’s soundtrack, we see that the “Title Music from A Clockwork Orange” is attributed to Purcell’s March for the ‘Funeral of Queen Mary.’ Carlos doesn’t claim authorship of the underlying composition and has no reason to do so. But, as mentioned, this has nothing to do with a litigation over copyright infringement of her master recordings, of which three are named in this lawsuit — all of them based on classical compositions, with the other two by Rossini and Beethoven. Andy wants to propose that Lewis Bond is building upon Carlos’s work the way Carlos built upon the works of these other composers, but this is neither true creatively nor legally from any real-world analysis of Bond’s use.

As to the matter of Bond as a victim of copyright, I clearly cannot say whether he is being defiantly foolhardy or innocently naive in this case, but the Serendip brief does state that after they issued a takedown notice through DMCA, Bond “immediately” filed a counter-notice. Now, I’ve learned a few things about copyright over the last four years, but there is no way in hell I would take a potentially $450,000 gamble that my own fair use analysis would be so solid that I’d go filing a counter-notice in a similar circumstance — at least not without consulting an attorney. And in this particular instance, I cannot see an argument that remotely favors a finding of fair use. Bond used these tracks in the most typical manner music is used for film — as accompaniment — and this use is always licensed. If Bond were attempting to distribute his film anywhere but YouTube, he would have to demonstrate that he had all such relevant license agreements in place.

It’s not that I don’t have any sympathy for Lewis Bond—at least in theory—but stories like this raise two broader issues in my mind. The first is that new creators, who want to take the authorship of their works seriously have just as much obligation to consider copyright as the creators who came before them. Wendy Carlos didn’t build her career without ever considering the copyright implications of her choices, and those who want to use or build upon her works have the same responsibility. Just because a contemporary new creator is a creature of the digital age, this calculus shouldn’t change, though many seem to think it should.

Having said that, if Bond and his contemporaries are victims at all, I would argue that they are harmed by editorials like this one by Andy at TorrentFreak. The pundits and corporate leaders who have so consistently misrepresented facts about the law and pushed a message of “infringe now, deal with it later” are doing a disservice to the next generation of artists by fostering bad intel on complex matters like fair use. As such, if these interests really cared about artists, they might back off the rhetoric a bit because new creators like Bond simply cannot afford the hubris of tech-industry billionaires.

Thanks to regular reader John Warr for bringing this story to my attention.

Assessing piracy harm is like climate science.

Ernesto (no last name) at TorrentFreak published a slightly sarcastic article about the fact that pre-release piracy did not do any apparent harm to the box office bonanza for the makers of American Sniper.  I have personally criticized pre-release piracy as a distinctly egregious form of theft and have stood by the principle that the behavior can cause harm to the primary release window of a motion picture.  Most specifically, though, I called pre-release piracy a “dick move,” and I’ll stand by that without apology whether it does financial harm to any particular film or not.

Ernesto points to the indisputable fact that some movie industry professionals blamed the widely reported pre-release leak of Expendables III for that film’s poor performance at the box office. He then rhetorically suggests that the contradiction in the case of pre-release piracy of American Sniper, which is doing very well, is a mystery.  Even with the sarcasm, TorrentFreak often presents articles in a fairly balanced manner, as follows:

First of all, the impressive opening doesn’t necessarily mean that the pre-release piracy had no impact at all. Perhaps the film would have raked in an additional $5 million without piracy.

On the other hand, some may argue that piracy may even have helped to promote the film through word-of-mouth advertising. In the end we simply don’t know what effect piracy had on the opening weekend.

I’ll agree with Ernesto enough to say that we don’t know, but I will say that the answer, (or answers) is likely a little more complex than the obvious fact that the two films being compared are like chalk and cheese.  Yes, American Sniper is a big deal film getting all sorts of accolades from critics and stirring up all forms of chatter on social media, while Expendables III was a typical example of a franchise being beaten to death and would never have attracted that degree of critical or audience attention in its wildest ambitions.  So, the success of the former and floppage of the latter is not inherently about piracy, but that has nothing to do with whether or not piracy is harmful in the aggregate, which is the more important question.

Regarding the economic harm done, if you view piracy the way Ernesto is viewing it on TorrentFreak, you’re what we call a climate science denier.  You look outside and the weather is okay. In fact, there’s snow on ground!  Global warming?  Ha!  This is the myopia we often encounter from a variety of idiots or vested interests incapable or unwilling to accept that the climate is a very large, very complex system and that climatology takes a much broader and more comprehensive view than our day-to-day peek at the weather.  Now, I’m not calling Ernesto an idiot.  As I say, I think TF can be fairly balanced, and I think his question is posed honestly.  But, trying to assess the harm, or potential harm, done to films by piracy through examination of two or three movies is like trying to study the global climate by looking at the ski report.

The reason I say this is that, like the climate, there are a variety of factors at play, including a significant amount of uncertainty, when it comes to averaging the successes and failures of motion pictures.  And one of those uncertain factors  is the fact that studio executives have believed since the days of two-reelers that they actually understand all the other unruly factors for success.

Ernesto is right that we won’t really know the harm/benefit of piracy on American Sniper, but there are a lot of other things we won’t know either.  We won’t know who went to see the film that wouldn’t have if not for some of the controversy it stirred.  We may not know — and I suspect this is the case — whether or not this film drew a demographic out to the theaters different from the demographic that typically engages in piracy.  Ernesto speculates that perhaps the blockbuster would have made an additional $5 million without piracy, but one can just as easily theorize that an above average audience of 55+ year-olds offset the losses of piracy to the tune of $5 million.  Eastwood’s name alone is worth a segment of audience that doesn’t even know how to pirate and doesn’t always go out to the movies these days.

Multiply all the factors for success by the total number of films made at every level and you have a data set that needs a climate scientist’s computer to begin to make predictions about the motion picture environment.  But what we can know without a whole lot of complex research is that there is always a finite pool of money available to invest in motion pictures, and we can know that investors generally like returns and hate risk.  And film is always risky, even the “sure things.”  So, the most distinctive films, the ones that surprise us, are the riskiest ones of all, not only with regard to subject matter or style, but because they almost always operate on much smaller margins. These films are historically less attractive to investors even without added risk.   Moreover, some production companies spread their bets across a wide range of fare, some presumably more commercial, others more creatively daring.  Hence, even a loss on a commercial film that some piracy rationalizers may presume to call marginal, might have been the seed money for that other product.  In the larger economic climate, this is certainly the case.

So, if we want to make assumptions about the prospective harm done to movies by piracy, it is insufficient to compare and contrast a big movie that has a lot of reasons to flop with a big movie that has a lot of reasons to win big.  We need to look instead at the prospect that piracy, like carbon in the atmosphere, adds substantial risk to investment across the broad range of distinctive films that are produced in the middle by independent filmmakers who survive on relatively modest returns.  Those are the films we’re mostly likely to lose in the long run.

Not that this means I condone piracy of the big movies.  No, that’s still a dick move.

Zombie Jamboree – Google “Helps” Fight Piracy

You know the deal.  Kill one zombie while ten others are infecting hundreds more who in turn infect thousands until, well, you’re basically toast.  Not only because it’s Halloween but because I am so damn bored with the Whack-a-Mole simile to describe anti-piracy efforts, I’m switching to zombie fighting.  Even TorrentFreak uses the word resurrect in the title of this article to describe how one particular torrent site, FileSoup, is using Google’s database of takedown notices to re-establish live links to infringing material.  It’s a bit confusing for the non-techie (including me), and I won’t do a better job summarizing the mechanics than the TF article, but here’s the big picture as I understand it:

Google receives about 20 million requests per month from rights holders to remove links to infringing URLs.  I suspect those are requests from major rights holders like studios and does not include independent rights holders who don’t have the resources to send out notices in significant volume.  Despite the fact that the overwhelming majority of takedown requests are legitimate and the DMCA is nearly useless for rights holders, Google and its PR machine continue to promote a general message that DMCA takedown requests are, by default, an attack on free expression.  To help reinforce this idea, the company dons a populist costume, claiming to be pro-transparency, and files all takedown requests with Chilling Effects Clearing House and produces a Transparency Report detailing the notices it receives. With the aid of so-called digital rights activists at The Berkman Center and the EFF, a publicly available database like Chilling Effects becomes a two-headed monster for both rights holders and the public.

First, as stated in an earlier post, the name and positioning of Chilling Effects is a pretty sleazy PR move designed to sustain that message that all takedown requests inherently violate free speech; and then, as a reporting “service,” these databases provide an efficient resource for prospective infringers to bring dead links back to life with relatively basic coding skills.  To quote TorrentFreak quoting someone from FileSoup, “We created a technology that crawls DMCA notices and resurrects the torrent webpage under a different URL so it can appear in search results again. It was rather complicated to sharpen it, but eventually it works pretty well. We will use it on FileSoup.com for all the websites we proxy.” 

Recently, Google rewrote its search algorithms to demote major pirate sites in the results queue, and this is a good thing. Despite having dragged their feet for years on taking such action and insisting search had no influence on pirate traffic, these demoted positions do seem to have had a mitigating effect already.  Of course, while giving a fist bump to rights holders’ with one hand, Google is using the other hand to feed links that have been lawfully removed by DMCA notice into a database that feeds this URL reassignment process to infringe exactly the same material against which Google can still sell advertising. 

And as bad as that is, I am even more concerned with the ideological agenda behind the more insidious message conveyed by an initiative like Chilling Effects that IP rights (or any other rights) infringe speech just because it’s the Internet. It is not wild speculation to say that the ultra-libertarian ideology of Silicon Valley’s elite envisions a future that looks and sounds populist and egalitarian for now, but that can become a real zombie apocalypse in just a few years.  In this zombie apocalypse story, everyone and everything is wired, and we’re all smiling at the free stuff on our devices and the conveniences brought to us by the Internet of things, and nobody notices that we’ve become commodities ourselves.  

Like a good horror movie, it begins subtly with consistent behaviors among the tech industry elite encroaching on various civil liberties.  Google does all it can to play fast and loose with piracy, and only so many people really care because they figure “it only affects big media conglomerates.”  Years later, Reddit balks at taking down stolen nude celebrity photos, and a few more people care about that because they begin to see this kind of rights infringement hits a little closer to home; those are people not companies.  Meanwhile, Google scans Gmail, and Facebook turns our connections, comments, and apparent interests into a commodity that can be traded like pork belly futures.  Then, Amazon exerts pressure on suppliers and labor with a monopolistic power we haven’t seen since John D. Rockefeller.  And because the pattern is asymmetrical and subtle, just like a zombie movie, we overlooked patient zero, which in this story was a song, illegally commoditized by a “file-sharing service” back in the early 90s.

Happy Halloween!