Reader Matt Perryman points us to a bizarre story down in New Zealand, which he claims is all over the news. Apparently, a local movie, called Boy, has been a huge success -- having the third most successful box office of a New Zealand film ever. Not bad, right? But, months after the film has been out in the theaters, it's now been leaked to the internet, and suddenly the media frenzy is about just how much this is "costing" the filmmakers. No evidence (at all), is presented. They just claim that a leak like this will cost a million dollars. Even more amusing, at the time these reports came out, they said that the movie had only been downloaded 200 times. But, if you look at the comments on that article, a ton of them are thanking the publications for letting everyone know the movie was available for download. Of course, many of the commenters are also pointing out that they don't live in New Zealand, and there was no way for them to see the movie otherwise... meaning that those downloads aren't losses at all. But, it seems the reporters never bothered to mention that rather important fact.
TorrentFreak asked independent film director Sam Bozzo to comment on his experiences having his two most recent films leaked to BitTorrent. The stories in both cases were different. The first film, Blue Gold: World Water Wars was released normally, and then leaked online. The second, his documentary Hackers Wanted was shelved after internal disputes -- but has now leaked to BitTorrent. Originally it was an old cut that was leaked, but now Bozzo's "directors' cut" has been leaked, and Bozzo seems fine with it. In fact, he claims that if you make a good film, having it leaked to BitTorrent can only help. It's only bad if your film isn't very good:
In a nutshell, I believe the only films that are hurt by torrent sharing are mediocre and bad films. In contrast, the good films of any genre only benefit from file-sharing. Due to this, I feel the current file-sharing trend is a catalyst for a true evolution in filmmaking...
That's quite a statement, since so many in the movie industry disagree. But Bozzo does a good job backing it up by explaining his own experiences. In fact, he admits when he first found out that Blue Gold was available online he was "enraged and terrified I would never make my money back," because of this. But he has since changed his mind, in part because he figured out how to embrace it:
I contacted the uploader of my film and asked she spread a message of support with the torrent, asking for donations if a viewer likes the film and explaining that was a self-financed endeavor. The result? I received many donations and emails of support from those who downloaded the film, but I furthermore believe that viewers spread the word of the film to their non-torrent-downloading friends and that DVD sales increased due to the leak. For me, the torrent leak was ultimately "free advertising", and I am the only truly independent documentary filmmaker I know making his money back this year.
He also responds to the usual complaint from filmmakers that even if unauthorized downloads might lead to more theater attendance, it must harm DVD sales, by highlighting, yet again, how obscurity is a much bigger "threat" than "piracy":
With "Blue Gold" already available on DVD in North America, UK, Japan, and Australia, the initial fear of a filmmaker is that each person who downloads a torrent would have instead paid to buy or rent a DVD if the torrent were not available. I feel this is false for many reasons. For an independent film like mine, most torrent users would have never heard of my film if not for the torrent. Unlike a large blockbuster film, I had no advertising money to spread the word of the film, so the torrent leak provided another outlet to hopefully create a viral campaign of word-of-mouth. The main point, though, is that this only worked because the film is a solid good film (for the target market at least), so word of mouth could only help the film.
The next obvious question is what about all those Blockbuster films that the MPAA and Hollywood like to pretend represent the pinnacle of movie making? He notes that it's probably wrong to worry about DVD sales, because if people are watching the movies on their computer, it's probably best to compare it to a situation like Netflix's streaming service, and again, notes the value of exposure over dollars:
In this case, I feel it is important to compare file sharing not with DVD-purchases or rental, but with streaming a film via Netflix's Watch Instantly and also with inviting friends over to watch a film in a group. In neither of these situations does a film make any money. Most are surprised to learn that Netflix pays only a fixed fee to the distributor for the number of years they may offer a film, regardless of whether that film is streamed once or a million times in that time period.
Yet anyone I know on Netflix's Watch Instantly platform, including me, is thrilled to be there. Why? The exposure. The more people who see the film, the more will likely love it and want to buy it for their collection. When you invite a group of friends to your house to watch a DVD, do you charge them? One person bought one DVD, and ten watch it free, but if the film is good, hopefully a few of them will buy a DVD for themselves, or at least spread positive word.
And from there he makes the key point:
Good filmmakers are not afraid to have their films seen, they fight to have them seen. They pay thousands of dollars for the "honor" of screening them for free at film festivals, so why not embrace screening them for free online with no "submission fee" required?
As for bad films? Well, he points out those are harmed by file sharing, because the negative word of mouth gets around much faster, leading people to avoid both the theatrical and DVD releases. But, he notes, for years, Hollywood has preyed on opening day box office numbers to define what is and what is not a good film, when the reality is those numbers are a factor of marketing and advertising:
Distributors of bad and mediocre films depend solely on a paying audience's misconception that they are paying to watch a good film, when they are not. Via mass marketing, trailers, posters, and paying high fees to star actors, distributors of bad films are betting all their money on one thing; getting as many people to pay to see the film the opening weekend in a theater before that disgruntled, unsatisfied audience tells all of their friends to avoid their bad film.
If you think logically just a second, it's ridiculous to judge a film's quality at all from the opening weekend, because nobody has seen the film yet to judge it! The opening weekend only demonstrates how much money was spent on advertising and the stars. That's it.
Believe it or not, all that is in just the first half of the article. Bozzo goes on to make a number of additional good points about why the legacy players hate BitTorrent -- not because it's "stealing" from them, but because it's upsetting their old way of tricking people into giving them money for bad movies. It's a great read. Someone should send it to Hurt Locker producer Nicolas Chartier, though I'm pretty sure I know how he'd respond...
"I love it. I like the movie so much I'm going to show it online, on the web, I'm going to pirate the first 13 minutes of the movie."
Since then he's made a number of similar statements in his Twitter feed, suggesting that he's going to broadcast those 13 minutes straight from the theater at the premier. Of course, as THR points out, this is all a publicity stunt by Lionsgate, previewing the first 13 minutes of a film -- something that a bunch of films have done in the past, especially when a studio doesn't think the film will get very good reviews. THR's chiding is silly, complaining about how calling this "piracy" is some sort of insult to people in the movie industry:
Probably not so awesome for anyone who works in the worldwide antipiracy community. Or the people who have been laid off recently from the studio home video divisions because sales have plummeted in part due to rampant online theft.
As if the film wouldn't find its way online otherwise? As if the problem has something to do with this more efficient distribution system, rather than an inability of the industry to adapt.
However, what I found really telling about the whole thing isn't the "poor choice of words," but how the industry appears to have this total double standard on the issue. One day it will claim that camcording a movie is absolutely destroying the industry, and that tough new laws are needed to put people in jail... and the next day it will play up the fact that its going to bogusly pretend to "camcord" one of its own movies and release it (or, the first few minutes of it) online. Like Viacom insisting that YouTube is destroying its business, while surreptitiously trying to upload its own videos in a way that looked "pirated," the industry says one thing and does another all the time.
We recently had a discussion about the legalities of fan fiction, and how some authors were adamantly against the concept (even if their views were on shaky legal grounds). While it is true that certain derivative works can be stopped, that also doesn't mean it's a smart thing, from the perspective of cultivating fans. Reader Eilieen now points us to the news of a fan-made film that builds on Joss Whedon's Firefly TV show and Serenity movie:
"Browncoats: Redemption was made by the fans for the fans," director Michael Dougherty explained to Wired.com by e-mail. "But we view this as an independent film; we had Firefly fans travel from all over the U.S. to volunteer their time as extras and other supportive roles in its production. Without them, this film would not exist, and it will only be successful with their continued help and support."
Unfortunately, the article at Wired totally leaves out the question of whether or not the copyright holders know about this particular fan film, and if they're okay with it. Plenty of movie makers -- such as George Lucas -- are perfectly happy with fan flicks, even to the point of encouraging them. But, in this case, it's not clear if this is, in any way, sanctioned. While the filmmakers say they're doing this for charity, that still suggests they're hoping to make some money from the film to give to charity -- which often is the trigger that sets off Hollywood lawyers.
Whedon, for his part, has always been good about cultivating super-loyal fans, and at the same time, of experimenting with smart business models. But, not everyone associated with Firefly/Serentiy have always been so sharp. Back when Universal Studios tried to market Serenity via its biggest fans, the lawyers at Universal (apparently kept separate from the marketers) tried to demand licensing fees from the fans that the marketing department was urging to promote the film.
Looking over the site of the movie itself, it does suggest that they were able to secure permission from everyone necessary -- including both Universal and Fox (who ran the TV show) along with Whedon himself:
So here's how it is, we've reached out to FOX, Universal Studios, Joss' agent at CAA, and even Mary Parent who is now at MGM. Everyone we've dealt with has been extremely helpful and completely blown away the stereotype of what the Hollywood experience is like. And much to our surprise, we even have the blessing of Joss Whedon himself. We've reached out to both Fox and Universal to get a greater understanding of the legal permissions we needed to make this a reality and we set out to complete it. And thanks to mighty fine Browncoats like yourself...we have.
That's slightly cryptic, but it sounds like all the legal permissions were granted, and perhaps this fan film will go ahead with all the official blessings. While it's silly that such a permission-based culture is necessary, just to make a film celebrating something that people love, at the very least, it's nice to see some Hollywood folks recognizing that fan fiction and fan films aren't inherently bad things.
It's actually a patent infringement lawsuit, but unlike most patent infringement lawsuits, the company suing, Medien Patent Verwaltung (MPV), claims that it actually met with Warner Bros. and "disclosed the technology" to the company. While I have to admit that I find it quite amusing to see Warner Bros. accused of "pirating" its "anti-piracy" technology, when you look at the details, it seems like a typically ridiculous patent scenario, with some random company suing for patent infringement over something another company came up with independently.
Making things even more amusing? In the lawsuit, MPV mis-identifies its own patent, incorrectly using the title of a patent.. held by Warner Bros! MPV's patent 7,187,633 is titled "Marking of a data medium material for information intended for reproduction." Warner Bros., though, has a different patent, 7,206,409, titled "Motion picture anti-piracy coding." But in the filing... MPV refers to the title of its own patent as "Motion picture anti-piracy coding" and never mentions Warner's actual patent by that name. Ooooops. Oh, and the WB patent? Filed before MPVs...
We've covered the ongoing fight over copyright termination rights lately, as it's quickly becoming a big deal. While the whole concept shows part of how messed up copyright law has become, one element included to help artists (rather than just big companies) when copyright terms were extended, were opportunities for the original artists or their estates to "terminate" the assignment of copyright to a company. The details are highly technical and a bit of a mess, and the entertainment industry has worked hard for years to try to bury termination rights (most famously when the RIAA had a Congressional staffer -- who was hired just months later to a high-paying RIAA job -- slip some text into a bill in the middle of the night that took termination rights away from musicians, until musicians freaked out and Congress backtracked). Even so, the big entertainment industry companies have been fighting against every attempt at artists or their estates reclaiming their copyrights for years. The most famous case was the case over Superman's rights -- which concluded last year with the estate of Jerry Siegel winning back certain rights (while letting Warner retain other Superman-related rights).
The lawyer who represented the Siegel estate, Marc Toberoff, has been pushing content creators and their estates to understand (and make use of) termination rights for a long time. And it's no surprise that we're now seeing new efforts under way from musicians and others, including comic book artist Jack Kirby. Kirby, not surprisingly, is also represented by Toberoff, who isn't just representing these artists in helping them get back their copyrights, but he's apparently set up his own production studio to help make use of those copyrights once he helps the artists get them back.
Apparently, Warner Bros. (a frequent target of Toberoff) has had enough and has decided to sue Toberoff personally, claiming that... well... basically that he's a jerk and a savvy business person, which I didn't quite realize was illegal. Specifically, they seem to be claiming that Toberoff "manipulated" the creators of Superman, having them hand over a large percentage of the rights to the character if he was able to successfully manage the termination. Part of Warner's complaint is that Siegel and Shuster had apparently signed agreements promising not to exercise their termination rights, but as I'm sure Warner's lawyers know (they must know this, right?), you cannot contractually give up your termination rights, or all entertainment industry companies would require that in their standard contract.
Frankly, reading through the complaint -- which you can read below -- it looks like Warner is attempting to retry the Superman termination rights case that it already lost:
While I still think there are all sorts of problems with termination rights in copyright law, and have no doubt that Toberoff had plenty of reasons beyond helping artists get back their copyrights in agreeing to represent these artists, it is somewhat amusing to see Hollywood flail around so desperately to try to keep absolutely monopolistic control over these rights. Of course, if the copyright law that was in place when Superman was created was still in place, the character of Superman would no longer be covered by copyright at all today, but would, instead, be in the public domain. So, forgive me for feeling little sympathy for anyone involved in this tug of war over who gets to exploit the creation for more money.
CinemaNow was one of the dreadful early Hollywood attempts at offering streaming videos online. Pretty much since it launched it was considered a joke that no one used. However, Best Buy last year announced a "partnership" with the latest owners of CinemaNow, Sonic Solutions, and have now announced that they've also bought the name CinemaNow. Best Buy has now announced it will be using the name for a new movie download service still powered by the same tech as the old CinemaNow. Got that? Of course, the press is saying will compete with Netflix and Blockbuster's streaming offerings -- and the stock of both companies took a hit. But, it's difficult to see what's all that compelling about this new service. Unlike the popular "all you can eat" models, Best Buy's will be $4 per movie download with $15 for full "purchase." Those prices seem quite high, especially when you can find used DVDs for half that or less. Plus, why bother going to Best Buy for all of this?
Best Buy is hoping to rent digital flicks for $4, and sell permanent downloads for roughly $15 apiece. Those prices aren't all that different from what Blockbuster and Amazon.com have been trying to do for several quarters -- and those companies haven't exactly set the digital realm on fire.
Bulls will argue that Best Buy has certain chain-specific advantages. It can promote the service within its stores, and bundle home theater systems with pre-paid rentals.
So how is Best Buy's scorecard on that front? The company teamed up with TiVo for a strategic alliance last summer, yet the DVR pioneer continues to shed subscribers. Best Buy acquired Napster two years ago, yet Best Buy is still an afterthought in digital music.
Sure, Best Buy sells a ton of DVD and Blu-ray discs. Now, it can tack on digital copies through CinemaNow, and all will be perfect... right?
What's that? Wal-Mart teamed up with Time Warner four years ago to do this with the DVD release of Superman Returns, and it was retail kryptonite? Uh oh.
Basically, this seems like yet another case of "well if we offer service combined with a big brand, people will just have to use it," rather than any look at coming up with at truly compelling offering.
With Hollywood getting the right to break your TV and DVR thanks to the FCC's granting of a waiver to let them use selectable output control to stop DVRs from recording certain movies, the MPAA insisted that this was a huge win for consumers. Why? Because it meant that the Hollywood studios would rush to put movies on TV earlier than ever before. Except... apparently, that's not actually the case. Despite the victory, no studios have stepped up to make use of the new ability to stop your DVR from recording, because they're scared about how the movie theaters will react to greater competition. Of course, the theaters are notoriously unwilling to allow any threat of actual competition from home viewership to encroach on their turf, even if it could actually help theaters.
But, uh, the whole argument that supposedly convinced the FCC to give the Hollywood studios this waiver was that they would make use of it to give consumers more access. Quoting from the FCC's decision:
This offering will allow the homebound, parents with young children, and others who simply want to stay in for the night to choose a
new entertainment option that they may value highly....
[On] balance, grant of MPAA's waiver request will provide a benefit to those who have the appropriate
equipment and would like to view movies in their homes in an early release window that outweighs the
limited impact on consumers with legacy devices....
So, a large part of the basis of the FCC approval was that it would increase content availability to homes. But that's not happening. Does that mean the FCC will admit that the entire basis for the approval was wrong?
Oh, and my favorite part is how the MPAA is playing this. Acting MPAA boss Bob Pisano put out the following statement when the FCC's announcement was made on May 17th:
"This action is an important victory for consumers who will now have far greater access to see recent high definition movies in their homes. And it is a major step forward in the development of new business models by the motion picture industry to respond to growing consumer demand..." (emphasis added)
So, gee, what does Pisano have to say, just a few days later when it turns out that none of that is true?
When asked about the studios' plans late last week, Bob Pisano, the president of the Motion Picture Association of America, said, "I can't tell you that, because I don't know." To comply with antitrust law, he added, "we stay out of business-model decisions."
Uh huh. So, let me get this straight. He argued -- successfully -- to the FCC, that granting this waiver to break people's TVs and DVRs would certainly create new business models and allow much more content to be available earlier. But, when it comes to actually supporting that, he claims that the MPAA "stays out" of business model decisions? So, how could he possibly have promised such "new business models" to the FCC in the first place?
The MPAA and Hollywood in general have been very, very strong supporters of stricter and more restrictive copyright laws pretty much as far as they can go. Jack Valenti, for many years the head of the MPAA, has famously declared both that, if it were up to him, copyright would last "forever minus a day" and that fair use was not part of the law. But, of course, time and time again, we see that strongest defenders of copyright law often find that they get a bit upset when it constrains them as well. Eriq Gardner has the story of the rise in lawsuits over Hollywood remakes from the estates (or others who purchased the copyrights later) of authors claiming infringement over movies. The main case that resulted in the article is really quite impressive in the number of layers deep that the whole thing goes.
Basically, Viacom (of course, a very strong defender of copyright) is being sued by an outfit called the American Rights Management Company, which claims to hold the copyright on a Damon Runyon story, Madame La Gimp, that was written in 1929. That story was later made into the movie Lady for a Day directed by Frank Capra. A few years later, Capra made yet another movie, also based on the same Runyon story, but this time, the movie was Pocketful of Miracles. About a decade ago, Jackie Chan made a remake, which was just called Miracles, which resulted in a lawsuit and a settlement. The issue now is another movie, which does appear to be either "loosely based on" or "inspired" by one or more of those predecessors, but made for an Indian audience in Bollywood, called Sing is Kinng. Follow all that? Here's the lawsuit:
The complaint lays out the similarities in the story structure and plot -- though, notably not the actual dialogue. If copyright really were about the expression and not the idea, then it's difficult to see how this is infringing, but as we've learned, when it comes to stories, courts seem to only pay lip service to that whole idea/expression dichotomy (despite it supposedly being a key element in keeping copyright law from violating the First Amendment).
While I do feel that Viacom should absolutely be free to make this movie (and others should be free to make their remakes as well), I do have to admit it's rather amusing to see Viacom and its strong pro-copyright stance potentially come back to bite the company.
Oh, and separately, it should be noted how ridiculous it is that the original Runyon work is still under copyright. When the copyright was registered -- as was required in 1929 -- the maximum the copyright could have lasted would have been 56 years. That was the "deal" that the US government made in exchange for the monopoly right, the work would go into the public domain by 1986, at the latest. By any measure, the work should be in the public domain. Of course, as we know, in 1976 we got ourselves a new copyright law and in 1998 copyright was extended again -- ridiculously applied retroactively. This is a breach of the agreement originally made, which had the deal extended without any benefit to the other side (the public). Oh yeah, and while copyright law today says copyright law is "life plus 70 years," you might think that this means Runyon's work should be in the public domain. After all, the man died in 1946 -- some 74 years ago. But, you'd be wrong. Because his works were published between 1923 and 1963 (and the copyright was renewed), it gets 95 years of protection from the publication date... meaning it doesn't go into the public domain until 2025 (assuming -- and it's probably a big assumption -- that there are no more copyright extensions).
Hmm. So if the MPAA hadn't fought so damn hard for copyright law changes and copyright extension, this particular work would have been in the public domain decades ago. But, thanks to the MPAA's efforts -- and Viacom is a major player in the MPAA -- it's covered by copyright for at least another 15 years. Oops.
Apparently, the producers of the Oscar-winning movie Hurt Locker haven't paid attention to what's happened on the internet over the past decade. Despite the massive levels of backlash against the RIAA for its "sue consumers" strategy, the folks behind Hurt Locker are preparing to sue tens of thousands of people for unauthorized file sharing of the movie. Apparently, they've signed up with the relatively new operation US Copyright Group, that is trying to copy the strategy used by ACS:Law and Davenport Lyons in the UK, where they send out thousands upon thousands of "pre-settlement" offers to get people to pay up. This process has lead to condemnation from politicians (who have called it a scam) and lawyers being barred from practice and being disciplined by regulatory boards.
But, apparently, that's of no concern to Hurt Locker's producers, or to Thomas Dunlap, the lawyer behind this scorched earth sue 'em all campaign. They may learn -- quite quickly -- about the backlash suing your biggest fans can cause. It's hard to think of a strategic move that will make things worse than this particular move. Have they not noticed what happened to Metallica after that band tried to sue its fans? Lots of people were interested in the movie after it won the Oscar, and plenty of people have been renting it. Yes, lots of people have been downloading it and sharing it as well, but that's not going to stop one way or the other. But in attacking people who want to watch your movie not just with legal threats, but with a full on lawsuit is ridiculous on any level. I actually had Hurt Locker in my rental queue, but there's no way I'm renting it now. I have no desire to support movie makers who would go to such ridiculous lengths for no good reason.
In the meantime, Dunlap and US Copyright Group are now claiming that 75% of ISPs have "cooperated fully." That's a very different story than we heard back in March -- at which time only one ISP had cooperated, and others seemed pretty skeptical. In fact, in that original case, the fact that ISPs cooperated was even more questionable after it came to light that the copyright in question was not registered in time. If it's true that most ISPs are cooperating and handing over IP address info, based on such sketchy proof, that would be a dangerous precedent. What happened to ISPs insisting they would never just hand over such information?
