Study Shows Disney, Netflix Continue To Dominate Traditional TV In Customer Satisfaction

from the give-them-what-they-want dept

There's just something about terrible customer service, high prices, and sketchy product that consumers oddly don't like. American consumers' dislike of traditional cable TV providers was once again made clear this week in a new study by the American Consumer Satisfaction Index, which tracks US consumer approval of companies on a 100 point scale. As has long been the case, the full report shows most traditional cable TV, satellite, or IPTV providers languishing somewhere in the mid 60s -- scores that are bested by a long line of industries and government agencies (including the IRS).

While the report shows that streaming did drop 2.6% to a score of 74 (thanks in part to COVID-era network strain and demand), that's still significantly better that most broadband and cable TV ratings, which remain mired in the 50s and 60s:

Compare that to streaming, which provides consumers with cheaper service, greater flexibility, and better customer service:

The cable industry was already struggling in early 2020, when a record number of cable customers "cut the cord" and flocked to over the air or streaming alternatives. That was before a pandemic came to town. But with live sports less consistent and folks desperate to cut costs as they struggled to pay rent, the trend simply exploded in the second half of last year. The number of folks still paying for traditional cable has now dropped more than 22.8% from pay TV's peak back in 2014. But by the end of 2024, analysts expect that fewer than half of US homes will subscribe to a traditional pay TV service.

One survey predicts that 27 percent of US households are planning to cut cable TV from their budgets this year. That's quite an explosion for a trend that cable and broadcast executives have spent a decade pretending wasn't actually happening (it was), wasn't a big deal (it was), was only something poor losers do (studies repeatedly proved this claim false) or would rebound once Millennials began seriously procreating (that didn't happen).

It's an ongoing lesson for the oodles of cable and broadcast executives who have been wrong about this phenomenon. For giant telecom incumbents their only saving grace is the fact that their monopolies over broadband access in many markets means the bloodshed isn't quite as bad as it otherwise would be, as they can simply extract their pound of flesh via price hikes on your broadband bill.

Filed Under: customer reputation, customer satisfaction, customer service, streaming, tv, video
Companies: comcast, disney, netflix

Now That Amazon Has Bought MGM, Will It Turn Against The Internet?

from the hopefully-not dept

As you may have heard, Amazon recently reached a deal to buy MGM Studios for $8.5 billion, expanding its in-house content studio, which is already quite massive, given its efforts to build up its Prime Video streaming service. For a variety of reasons (notably, everything Amazon has done with Prime, as well as increasing video streaming competition from Disney, NBC Universal, Warner Media/Discovery, etc.), the deal isn't that surprising.

I do wonder, however, if this deal brings Amazon a step closer to turning its back on the open internet. I mean, we already had Netflix join the MPA and start overreacting to piracy after being a good internet steward for many years. At this point, it seems like it may only be a matter of time until Amazon goes down that path as well -- though I'd hope they think better of it.

That said, it is notable that MGM is not a member of the MPA. It somewhat famously left in 2005. So maybe that helps keep Amazon on a path of actually supporting the open internet, and remembering the rest of its business (and how much it relies on an open internet). Still, watching how much the internet and the entertainment business has converged over the past decade or so suggests that we might finally get a realignment on these issues. It would be nice if that came with Hollywood finally recognizing the open internet is not the enemy, rather than the new tech players turning their backs on the open internet... but I'm not at all confident that's how this will play out.

Filed Under: content, copyright, internet
Companies: amazon, mgm, mpa, mpaa, netflix

High School Teacher's Copyright Suit Against Netflix Gets Dismissed Because Coincidence Isn't Protectable

from the class-dismissed dept

Of all the areas that result in copyright lawsuits that never should have been filed, it surely must be ignorance of the idea/expression dichotomy that is the most common. That link will take you to a litany of posts about copyright fights in which one party sues another over elements of a creative work that are themselves not protectable. The basic explainer goes like this: the specific expression of a work, or even the specific expression of unique thematic or character elements, can be protected by copyright, whereas mere general ideas cannot. This is why Batman is a copyrightable character, but that copyright cannot be used to sue the hell out of anyone that writes a story about an insane rich person who wears a cape and cowl while fighting bad guys. Idea versus expression.

It's crazy just how many lawsuits get filed by full grown adult lawyers who don't seem to understand this. One recent example is a lawsuit brought by a high school English teacher against Netflix over the latter's series, Outer Banks. The suit was tossed at the motion to dismiss stage, with the court reasoning that the majority of the 40-plus claims of infringement amount to either non-protectable ideas, or allegations that amount to mere coincidence that has nothing to do with copying anything at all. On the first of those:

In a 25-page opinion, U.S. District Judge Timothy C. Batten Sr. said Kevin Wooten’s 2016 book “Pennywise: The Hunt for Blackbeard’s Treasure!” had a significantly different plot, characterization, mood, pace and settings than the Netflix original.

“To be sure, both works involve shipwrecks and treasure hunts,” Batten said. “But to analyze their plots at such a high level of abstraction would render every work involving a hunt for buried treasure susceptible to copyright infringement.”

It's a useful high-level takeaway on the majority of issues with the lawsuit, but it's worth noting that the court did in fact do a deep dive on each of the claims made. Not all of them amount to generic story ideas such as the above. While the actual plotlines and characters are very, very different -- a different number of main characters, different treasures being hunted for by those characters, different outcomes, etc. -- , some of the claims detailed out in the dismissal are downright absurd.

As a preliminary matter, many of Wooten’s purported similarities either do not exist or are “random similarities” that “could be found in very dissimilar works.” Beal, 20 F.3d at 460 (quoting Beal, 806 F. Supp. at 967 n.2). For instance, he argues that “both Works clearly sought to invoke an avian theme at the mausoleum.” [19] at 14. He points out that in his novel, Nathan and Ben find a clue hidden in the wing of a bird statue at a mausoleum. He argues that this plot device is substantially similar to the protagonists’ discovery in Outer Banks of a clue labeled “For Bird.” But the bird reference in Outer Banks is merely a callback to the nickname John B’s father gave him as a child. The fact that the word “bird” is present in both narratives is entirely innocuous and of no significance in an infringement analysis.

It goes on from there, including where the court looks at the actual main characters of each work, claimed by Wooten to be substantially similar, and concludes:

In sum, the characterization in the novel is in stark contrast to that of the series. The Outer Banks characters are complex, with narratives that cause the viewer to at times sympathize with even the most nefarious individuals. In the novel, on the other hand, the naïve Pennywise twins and their uncle serve as prototypical hero figures while Darwin acts as a classic villain.

Without trying to, the motion to dismiss doubles as something of a literary review, albeit one rather unkind to Wooten's novel.

The real point of all of this is that what should be common sense ought also to be better understood among attorneys willing to file copyright lawsuits on behalf of clients: you cannot copyright general ideas, tropes, nor the obvious story elements that grow from either. Treasure hunts are as tropish as they come, frankly, and attempting to silence an entirely unrelated creative work simply because of "avian themes" and the like is nonsensical.

Filed Under: copyright, idea expression dichotomy, kevin wooten, outer banks
Companies: netflix

FCC's Carr Thinks 'Big Tech' Should Subsidize His Pals In 'Big Telecom'

from the do-not-pass-go,-do-not-collect-$200 dept

Way back in 2005, former AT&T CEO Ed Whitacre whined incessantly about how Google was getting a "free ride" on his company's "pipes," and that they should be charged an additional toll (you know, just because). As we've discussed countless times in the years since, Whitacre's argument made absolutely no sense, given that Google not only pays plenty for bandwidth, but the company owns billions in international and oceanic fiber runs, data centers, and network infrastructure. Despite making no sense, this idea that Google was some kind of free ride parasite and should be throwing millions in additional money at telecom giants has been a talking point for global telecoms for years.

While the feeble argument had taken a vacation for a while after the net neutrality debate, it popped up again this week in a clumsy, logic-optional op-ed over at Newsweek by FCC Commissioner Brendan Carr. In it, he argues that we should do away with existing flawed but important low-income and school broadband subsidy programs like E-Rate, and instead have "big tech" pay for everything:

"It is time to fundamentally rethink how we fund our high-speed networks. That is why I am proposing a third way. We should start requiring Big Tech to pay its fair share. Big Tech has been enjoying a free ride on our internet infrastructure while skipping out on the billions of dollars in costs needed to maintain and build that network. Indeed, one study shows that the online streaming services provided by just five companies—Netflix, YouTube, Amazon Prime, Disney+ and Microsoft—account for a whopping 75 percent of all traffic on rural broadband networks.

So, as we've noted the last fifty times this flimsy argument has been trotted out, streaming video giants like Google, Amazon, and Netflix pay millions of dollars for connectivity. Not only that, they run vast fiber routes that stretch around the planet and operate their own massive content delivery network hubs to ensure it's all delivered as efficiently as possible. For Christ's sake, Google is an ISP. The fact their popular video products make up the majority of overall internet traffic is an utterly meaningless stat in this context, thrown in there by Carr (or more likely his intern) to make his argument sound semi-coherent and scientific.

But the reality is these companies aren't getting anything even vaguely resembling a "free ride." When it comes to the heavily regionally monopolized US telecom market, nobody gets a free ride. Consumers, schools, and enterprise customers alike often pay some of the highest prices in the developed world for bandwidth thanks to limited competition and regulatory capture. But for literally 20 years the telecom industry has employed a rotating crop of sock-puppets and dollar-per-holler experts who employ the "free ride" argument for one reason: big telecom wants an even bigger handout.

It looks like the GOP tried to make this lame argument go viral yesterday, but be well aware, this is an AT&T message being parroted through the mouth of their most trusted, captured regulators:

That's not to say we shouldn't be reforming our existing and often quite broken subsidy programs. But something Carr (coincidentally, for sure!) forgets to mention is that if anybody is getting a free ride in this equation, it's regional telecom giants. They've received countless billions from taxpayers over the years for networks that always mysteriously wind up half deployed. Time after time after time after time, "big telecom" nabs billions in subsidies, regulatory favors, tax breaks, and other perks in exchange for half ass, half completed fiber networks.

Not only does Carr intentionally avoid mentioning the telecom industry's long and obvious history of taxpayer fraud, waste, and abuse, he attempts to flip everything on its head and suggest only large tech companies are the beneficiaries of "corporate welfare":

"Ending this corporate welfare is more than fair. It is consistent with the network compact that has prevailed since the earliest days of the Ma Bell telephone network. Historically, the businesses that derived the greatest benefit from a communications network paid the lion's share of the costs. For instance, the fees that businesses paid for local and long-distance calls provided the key funding stream to build the traditional telephone network."

Big tech has ample issues that need addressing, but that's not really what's happening here. What's happening here is the telecom lobby is trying to piggyback on valid complaints about Silicon Valley giants just so they can grab a chunk of their ad revenues. Revenues AT&T, Comcast, Verizon had friend have coveted for years. The problem is we're talking about broadband, and when it comes to broadband as it pertains to "free rides," the problem is these telecom giants themselves.

Carr must have forgotten about how AT&T got a $42 billion Trump tax cut in exchange for big promises of boosted network investment and jobs that never happened. Not only did they not happen, AT&T has laid off an estimated 54,000 employees since 2017. I think folks are smart enough to see through Carr's arguments here. After all, this is a guy that has never seen a giant telecom merger, handout, regulatory favor, or subsidy he didn't like. He's about as clear of a captured regulator as you're likely to see in the wild, and the idea he's interested in genuine reform given his track record should be laughed at.

Telecom giants like AT&T have always lusted after the immense advertising revenues Silicon Valley has enjoyed, and have always somehow believed they're owed a slice of those revenues just because much of this traffic touches their own networks. But "big technology companies should pay us billions in additional dollars for no reason" has never been a real argument. It's just a flimsy telecom monopolist pipe dream repeatedly propped up by captured regulators and corrupt politicians who lost the plot years ago.

So why is it popping up suddenly now? My wager is telecom lobbyists want to provide their trusted DC allies with talking points to help them justify their opposition to Biden's $100 billion $65 billion broadband plan. Messaging along the lines of: "spending money to expand broadband competition isn't really necessary! Wouldn't it just make more sense to have Google, Netflix and Amazon throw billions of dollars at AT&T for no reason?" But Google, Netflix, and Amazon are already paying for it. We're all paying for it. Over, and over, and over again. And the reason we're still paying for it in 2021 is because too few DC officials have the courage to stand up to regional telecom monopolists in the first place.

Filed Under: brendand carr, corporate welfare, digital divide, e-rate, fcc, free ride, subsidies
Companies: at&t, facebook, google, netflix, verizon

Netflix Starts Cracking Down On The Diabolical Menace Of Password Sharing

from the priorities-priorities dept

Back when Netflix was a pesky upstart trying to claw subscribers away from entrenched cable providers, the company had a pretty lax approach to users that shared streaming passwords. At one point CEO Reed Hastings went so far as to say he "loved" password sharing, seeing it as akin to free advertising. The idea was that as kids or friends got on more stable footing (left home to job hunt, whatever), they'd inevitably get hooked on the service and purchase their own subscription. Execs at HBO (at least before the AT&T acquisition) have stated it doesn't really hurt these companies' bottom lines in part because, much like with traditional piracy, there's no guarantee these users would actually subscribe if they lost access.

In the last year or two, as Netflix's dominance grew, the company's position on the subject unsurprisingly started to toughen. And last week, the company began testing a system that would nudge password sharing subscribers to get their own account:

"...some viewers attempting to use somebody else's account are now being stopped by a screen that says, "If you don't live with the owner of this account, you need your own account to keep watching."

Netflix confirmed the new feature, which is getting a limited rollout at this time. "This test is designed to help ensure that people using Netflix accounts are authorized to do so," a Netflix spokesperson said. In order to continue watching, the viewer is given the option of either verifying their identity (with a texted or emailed code to the account's owner), or opting to "verify later," which gives the viewer an unspecified additional amount of time to continue watching and later confirm they are a valid account user.

Granted there's a little tone deafness here, given the fact we're in the middle of an historic health and economic crisis. But the shift was likely inevitable. A lot of Netflix's initial, more consumer-friendly attitudes (like oh, the company's support for net neutrality) have mysteriously disappeared as Netflix has shifted from pesky upstart to dominant player (Netflix had 203.67 million subscribers as of the end of 2020).

That said there is one plus side to the shift. As these users are shoved toward creating their own accounts, those users are being nudged to sign up for entirely new accounts with two-factor authentication:

"There seems to be a misunderstanding that sharing passwords with known individuals is not dangerous,” says Jake Moore, a cybersecurity specialist at security firm ESET. “The truth is that we shouldn’t be sharing passwords, and adding multi-factor authentication will help this process remain better protected.”

Some of Netflix's positional shift is courtesy of the traditional cable sector. Cable companies like Charter Spectrum (and its CEO Tom Rutledge) have spent years lamenting password sharing as the worst sort of villainy and a form of piracy (it's very much not). Rutledge and his fellow band of password sharing pearl-clutchers have been cooking up an organization whose entire function is to apply pressure on streaming providers who've been lax on password sharing, since that is, as everybody knows, one of the very top issues facing America today.

Filed Under: password sharing, reed hastings, streaming
Companies: netflix

Georgia Towns Sue Netflix In Flimsy Bid To Nab A Slice Of The Pie

from the good-luck-with-that dept

A handful of municipalities in Georgia have filed a lawsuit (pdf) against Hulu, Netflix, and other streaming providers in a ham-fisted bid to saddle customers with cable franchise fees. Such franchise fees were common in the cable TV era. In large part because such cable providers had a physical presence in local municipalities. They utilized public rights of way, hung their coaxial cable on city-owned utility poles, often had local offices or broadcast hubs, and in some instances provided public access television.

As a result, traditional cable companies struck local franchise agreements requiring they pay the local community for the right to access public property and resources. Since streaming providers (usually) have no physical presence in the states they're doing business, those fees didn't transfer over to the streaming industry. Enter these Georgia towns, which filed a lawsuit not only claiming that traditional cable companies haven't been paying the money they owe, but that streaming providers like Hulu and Netflix should also be paying up:

"Gwinnett County, Brookhaven and Athens-Clarke County are seeking an injunction to keep these video service providers from operating in their municipalities until they acquire the necessary franchises, agree to pay franchise fees in the future and compensate the plaintiffs for the unpaid fees for past service dating back to July 1, 2007 as well as legal fees.

The total amount owed to these municipalities if they win the case could be much more than $5 million."

The towns are leaning heavily on a Georgia law named the Consumer Choice for Television Act. The Act was updated in 2007 to require that "video services" pay the town or city a quarterly franchise fee to municipalities in areas where they use the local internet service provider’s broadband facilities to deliver content. The problem, of course, is aside from local content delivery network hubs (CDNs), the municipalities in question aren't really doing anything that warrants getting a slice of this revenue. That's not stopping them, apparently:

"While competitors such as Charter Communications, Comcast and Cox have paid franchise fees in compliance with this law, DirecTV, DISH, Netflix, Hulu and Disney have neglected to apply for a franchise or pay franchise fees since this law went into effect on July 1, 2007, the court filing claims."

This isn't the first effort of this type. Towns in Nevada, Texas, Indiana, and Ohio have been trying something similar. Companies like Netflix, as you might expect, aren't particularly impressed:

"These cases falsely seek to treat streaming services as if they were cable and internet access providers, which they aren’t,” a Netflix spokesperson told The Verge. "They also threaten to place a tax on consumers that the legislature never intended, and we are confident that the courts will conclude that these cases are meritless."

While there's always the chance the case could be heard by idiot judges, I think Netflix is probably right. That said, most of these municipalities have every right to be annoyed, and this is more complicated than just "mean old municipalities are being greedy."

Cities have long been solidly screwed by the telecom and cable industry, which in the early aughts effectively gutted most local (town, city level) franchise agreements. Basically, phone companies like AT&T and Verizon, looking to get into the TV business, whined incessantly about how unfair it was to have to do things like expand broadband and TV service evenly, provide a few public access TV channels, and give local municipalities fair compensation for using city utility poles and public rights of way.

So, over-emphasizing the real occasions where city leaders made unreasonable demands, they lobbied to shift most franchise control to the state level, claiming this would result in greater efficiency, more competition and lower prices. The problem: because state legislatures are more efficiently corruptible by AT&T, Verizon, and Comcast lobbyists, most of these new state agreements by and large screwed cities over, gutted most consumer protections, obliterated local franchise revenue, neutered most of the benefits more local agreements provided (like even broadband deployment), and resulted in state-level agreements that were little more than telecom legislative wish lists.

In the end, cities lost authority and income while facing no shortage of new, costly challenges (like climate change, infrastructure erosion, and COVID). But while it's understandable that municipalities are pissed in the wake of getting railroaded by the telecom sector and losing revenue, trying to claw back this income from streaming providers that have little to no actual presence in these areas doesn't make a whole lot of sense.

Filed Under: cable tv, franchise fees, georgia, streaming
Companies: hulu, netflix

The Mystery Of The Copyright On Sherlock Holmes' Emotions Goes Unsolved Due To Settlement

from the unsolved-mysteries dept

Since this past summer we have been writing about a bonkers lawsuit brought against the makers of a Netflix movie, Enola Holmes, by the Conan Doyle Estate. The stories of Sherlock Holmes are, of course, largely in the public domain now, although roughly 10 tales still haven't reached the expiration date of their copyright protection. The film does not tell any of those protected stories. Instead, it tells an original story, focused on Holmes' sister, Enola. To make its copyright claim, the Estate instead suggests that Enola Holmes shows a Sherlock who has feelings and empathy, among other details, and therefore runs afoul of the character copyright as Sherlock didn't show such features until those still-protected stories were written. Also, something about Sherlock developing a liking towards dogs. Yes, seriously.

Well, Netflix moved to have the case dismissed, going in quite hard on the details of the Estate's claims. For starters, in Enola Holmes, um, no dogs. Added to that, the motion provides ample evidence of Sherlock having feelings and empathy prior to the protected works and that such ideas are not protectable anyway. The rest of us, meanwhile, waited patiently to see if the mystery of whether or not you could break copyright in this way could actually succeed in court.

Sadly, we'll never know, as reportedly Netflix and the Estate have reached a settlement.

Is a more emotional Sherlock Holmes protected by copyright? Although that's dubious, the mystery remains technically unsolved as Netflix, Legendary Pictures, and others associated with Enola Holmes have come to a settlement with the Conan Doyle Estate. On Friday, the parties stipulated to dismissal of a lawsuit in New Mexico federal court.

In response [to the suit], the producers blasted the suit as an "attempt to create a perpetual copyright," arguing in a motion to dismiss that generic concepts like warmth and kindness don't fall under protection.

The Conan Doyle Estate never took the chance to respond. Undoubtedly, its negotiating leverage would be stronger having defeated a dismissal motion, but the heirs to the author surely have their reasons for taking whatever they could in settlement.

As per usual, the details of the settlement were not released publicly. And while I'm sure readers here are sick and tired of hearing me complain about such opaque settlements, it is immensely frustrating when we get questions about protectable copyright elements where it would be nice to have some clear court rulings to not get any. Given what the Estate was up against based on the merits of its attempt to create perpetual copyright, it's hard to imagine it made out particularly well in the settlement, but for now all we can do is guess.

Filed Under: copyright, derivative works, enola holmes, sherlock holmes
Companies: conan doyle estate, netflix

Disappointing: Netflix Decides To Settle With Chooseco LLC Over 'Bandersnatch' Lawsuit

from the sigh dept

Well, it's been quite a stupid and frustrating run in the trademark lawsuit between Netflix and Chooseco LLC, the folks behind Choose Your Own Adventure books from our youth. At issue was the Black Mirror production Bandersnatch, in which the viewer takes part in an interactive film where they help decide the outcome. The main character is creating a book he refers to as a "choose your own adventure" book. Chooseco also complained that the dark nature of the film would make the public think less of CYOA books as a result. Netflix fought back hard, arguing for a dismissal on First Amendment grounds, since the film is a work of art and the limited use or reference to CYOA books was an important, though small, part of that art. The court decided that any such argument was better made at trial and allowed this madness to proceed, leading Netflix to petition for the cancellation of Chooseco's trademark entirely. This story all seemed to be speeding towards an appropriately impactful conclusion.

But reality has apparently turned us to the wrong page of the story. Netflix and Chooseco have reached a settlement, predictably short on details save for one very specific area.

On Monday, at a status conference before U.S. District Court Judge William Sessions III, the parties revealed that they had reached a settlement. While terms weren't released, the parties did tell the judge of one slightly unusual condition — the judge's February 2020 opinion denying Netflix's dismissal motion would have to be vacated. Sessions agreed to the demand. He chose to pretend he never questioned whether Netflix's film was explicitly misleading.

I'll admit that last bit has me a bit flummoxed. I haven't run into this sort of thing previously, where a case is settled and a previous order by a judge refusing dismissal of said case is vacated. I have pinged a couple of lawyers and have gotten mostly shrugs. The most I can say about it from digging around is that Netflix may not have wanted some precedent-setting ruling like this officially on the books for one reason or another.

The rest of the settlement details are not for public consumption. Without those details, it's difficult to know just who won out here, though it's notable that Chooseco appears to be keeping, and even expanding, it's trademark rights on "Choose Your Own Adventure." I could speculate that the threat to the mark was enough to get the company to mostly back off Netflix.

But that's the frustration here, honestly. Netflix raised some important First Amendment concerns in its defense, concerns that deserve a day in court. For now, at least, this one dumb lawsuit is over.

Filed Under: 1st amendment, bandersnatch, black mirror, choose your own adventure, free speech, trademark
Companies: chooseco, netflix

Netflix Gets Cute Using DMCA Notices To Take Down Tweets Critical Of 'Cuties'

from the too-cute-by-half dept

Cuties, the stupid non-controversy against Netflix that simply will not go away. The film, which won awards at international film festivals, centers on a pre-teen and is a coming of age story about a young lady growing up in both a strictly conservative upbringing combined with living in the hyper-sexualized Western culture. While the whole story is about this juxtaposition, Netflix rather stupidly promoted the film using images that focused on the latter. The result was chaos, with large swaths of Puritan-Twitter screaming about boycotting Netflix entirely and one pandering prosecutor in Texas bringing an indictment against Netflix for promotion of lewd visual material depicting a child.

With everyone very quickly lighting themselves on fire over an award winning film, Netflix sat back and calmly explained what the film was about and why it had... just kidding, Netflix is now out here issuing DMCA takedowns for those tweeting critiques of its decision to distribute the film.

Netflix's takedown requests, which are still rolling in today, seem only to have targeted tweets that described the film negatively, although some more than others.

"IMAGINE A CHILD SEEING THIS #Cuties #Netflix #CancelNetflixCuties," one message read. "WARNING CONTAINS EXPLICIT CONTENT," another similar message said. "Go ahead and try to justify how this film is an appropriate representation of 11 year olds. I'll wait. #CancelNetfilx."

Some of the dozens of tweets Netflix issued DMCA claims against used clips from the actual movie, TorrentFreak reports, in which case Netflix's claims are understandable. However, many of the tweets in question shared the film's trailer, which is widely and publicly available on YouTube for anyone to view or share.

DMCA takedowns of trailers, as we've explained before, never make sense. Ever. Ever ever. What Netflix is doing instead is lay bare its intentions behind these takedown notices, which are obviously centered on attempting to censor critical commentary around its decisions surrounding the film. This becomes especially apparent when put in the context for how and for what Netflix has, in the past, bothered issuing DMCA takedowns.

TorrentFreak notes that the cluster of claims is unusual for Netflix, which has sent roughly 300 DMCA claims to Twitter in the past month, half of which centered on tweets related to Cuties. Before Netflix started targeting Cuties tweets, most of the claims it sent were related to accounts known for distributing pirated content.

And so the Streisand Effect kicks in. By trying to bury criticism, the public becomes all the more aware of that criticism. By trying to censor a controversy that was probably juuuuuuust about to go away, instead it gets recycled back into the news cycle.

Netflix, tech company as it is, should absolutely know better. Reliant on the First Amendment as it is, it should absolutely not be taking actions like this that tamp down speech. And given that Netflix is not entirely without blame for the controversy in the first place, it sure would be nice if the company demonstrated skin thick enough to take a little heat now and again.

Filed Under: criticism, cuties, dmca, overreaction, streisand effect, takedowns, trailer
Companies: netflix

Texas Grand Jury Indicts Netflix For 'Lewd Exhibition' Of Children In Its Movie 'Cuties'

from the child-beauty-pageants-expected-to-remain-unaffected dept

It seems impossible that 2020 could get any stupider. But here we are, watching in bemusement as a showboating prosecutor talks a grand jury in a tiny Texas county into indicting an online streaming service for… let's check the record… "promotion of lewd visual material depicting child."

Here's "liberty loving conservative" (and state rep) Matt Schaefer's tweet, which contains a snapshot of the indictment.

Here's what the tweet says above the indictment photo:

Netflix, Inc. indicted by grand jury in Tyler Co., Tx for promoting material in Cuties film which depicts lewd exhibition of pubic area of a clothed or partially clothed child who was younger than 18 yrs of age which appeals to the prurient interest in sex

Go ahead and jump to the replies if you enjoy watching a bunch of people who don't understand the First Amendment or state law cheer on this showy act of futility.

The indictment [PDF] states that Netflix broke the law by distributing the film "Cuties" via its streaming service. Jurisdiction is presumably proper because even Tyler County residents can subscribe to the service. If you're not familiar with "Cuties," it's a coming-of-age film dealing with a Sengalese preteen who begins to emulate the sexualization of other females while growing up as a Muslim in Paris, France. It won awards at the Sundance Film Festival and flew under the radar until Netflix began its promotion of the film, which centered on the more questionable depictions of underage girls engaging in hyper-sexualized behavior.

All hell broke loose for a few weeks last month. Calls to boycott Netflix filled social media services and a number of US politicians decided this was the thing they should be spending their time on as thousands died from COVID, businesses closed forever and unemployment remained high.

Here's just some of the legislative-level furor that followed Netflix's release of the film.

Senator Bob Hall (R-Canton) swore to file a bill that would outlaw pedophilia in the state constitution, Texas Attorney General Ken Paxton joined two other state attorney generals in a letter asking Netflix to remove the film, and U.S. Senator Ted Cruz (R-TX) asked U.S. Attorney General William Barr to investigate the company for “the filming of minors engaging in sexually explicit conduct.” State Rep. James White (R-Tyler) likewise wrote Paxton asking for an investigation into the film.

Now that we're all caught up, let's look at the indictment and see if we can find the fatal flaw:

"Knowingly promote[d] visual material which depicts the lewd exhibition of the genitals or pubic area of a clothed or partially clothed child who was younger than 18 years of age at the time the visual material was created, which appeals to the prurient interest in sex, and has no serious literary, artistic, political, or scientific value…"

Anyone can get an indictment. This much is known about grand juries. But securing a conviction is going to be a hell of a lot more difficult. The prosecutor is going to have to convince a judge (and possibly a jury) that a film that won awards at an international film festival contains no "serious literary or artistic value." That's even harder to argue under the Miller test erected by the Supreme Court, which says the work as a whole has to be considered in terms of artistic merits, not just the cringier parts that prompted backlash all over the internet. That should be enough to nullify the criminal case Tyler County DA Lucas Babin is bringing against Netflix.

There's some pandering going on here, but it originates in the prosecutor's office. This will score points with the kind of people willing to award points for performative wastes of public funds. No one else will be affected. "Cuties" will enjoy another few days of internet infamy, along with its US distributor. But no one's going to jail because Netflix distributed this movie, no matter how much one prosecutor wants it to happen.

Filed Under: cuties, documentary, indictment, moral panic, texas
Companies: netflix