I completely agree that studios should focus on making good movies for less money in addition to the blockbusters that audiences clearly enjoy. However, I disagree that "it's not what we see. We see Hollywood being more timid, but rarely actually translating that timidity into focusing on more products with lower budgets and compelling storytelling." That generalization is overly broad, and provably false.
Paramount Pictures, for instance, has invested roughly $1-$2 million per year to produce 20-30 micro-budget films each year (compared to the 10 or so big-budget movies they release each year). The budgets for the films often don't exceed $100,000, and the films are not always slated for traditional theatrical distribution. If they are released, Paramount has rethought how they can be marketed and distributed inexpensively using digital distribution, grass-roots marketing campaigns, and midnight screenings, among other strategies. The head of Paramount's film group had this to say of the endeavor: "This gives us the ability to find new voices, new ideas, and potentially new movies to foster the most outrageous kinds of thinking." Paramount's CEO reaffirmed this new way of thinking: "This is about fostering new talent and finding filmmakers around the world."
I think it's important to give credit where it's due, and to not make hasty generalizations. Paramount started this effort in 2009 and has since continued to make blockbusters at the same time. To say that major studios won't/haven't focused on making good movies for less money is to ignore the real and ongoing efforts of major studios like Paramount.
If you have evidence that the article I referenced is "false," I would love to see that evidence and learn more about these issues. In addition, if you have sources which show that studios actually receive the first two months of "profits," I would be very interested in seeing that evidence as well. Even if it were true that studios keep the first two months of "profits," it seems like you concede the point that box office revenues do not reflect the amount of revenues studios actually bring in (instead, it is some percentage of that). That in and of itself seems relevant to a discussion of Hollywood accounting.
One thing that I hope Mike will recognize in these "Hollywood Accounting" stories is that box offices revenues are *not* revenues actually recognized by studios. Generally, 50% or more of those astronomical box office figures go directly to the exhibitors (i.e., the theater owners). Thus, while box office revenues are referenced by studios for purposes of calculating certain percentages owed to participants, it is important to realize that the studio isn't splitting up the box office revenues... it's likely splitting up less than 50% of that amount. I'm not sure that this is distinction is made clear to readers in this article.
An other perspective from the above cited article:
"Consider, for example, Touchstone's Gone in 60 Seconds, which had a $242 million box-office gross. From this impressive haul, the theaters kept $129.8 million and remitted the balance to Disney's distribution arm, Buena Vista. After paying mandatory trade dues to the MPAA, Buena Vista was left with $101.6 million. From this amount, it repaid the marketing expenses that had been advanced—$13 million for prints so the film could open in thousands of theatres; $10.2 million for the insurance, local taxes, custom clearances, and other logistical expenses; and $67.4 million for advertising. What remained of the nearly quarter-billion-dollar "gross" was a paltry $11 million. (And that figure does not account for the $103.3 million that Disney had paid to make the movie in the first place.)"
Bullshit. As noted, tons of us presented alternative solutions, even to the point of offering redlined suggestions and bill recommendations.
Mike,
You have a very public forum on which to post your own alternatives to SOPA or a redline of the bill that would address your concerns. Why not propose those solutions or alternatives here?
if you look at the same Nielsen reports going all the way back to 2006, they show music sales going up each year
The Nielsen percentages you cite aren't based on track-equivalent albums (TEA), which is what the 2011 1.6% figure is based upon. The 2009 TEA sales percentage was -8.5%, 2008 was -8.5%, 2007 was -9.5%, and 2006 was -4.9%.
In the meantime, we're still curious if this shutdown of Limewire has resulted in any increased sales.
"Bucking a years-long trend of decline, U.S. music sales continued this year's upward swing, rising 1.6% through May 8, according to Billboard analysis of Nielsen SoundScan data."
Because of course, you are entitled to these tv shows, and any denial of your entitlement should allow you to break the law (and, incidentally, support sites that are not as discriminate as you are). Got it.
But here's the big question: assuming we accept this massive dropoff in P2P file sharing, was there a corresponding jump in music sales?
"Taylor Swift enjoys ‘Speak Now’ album sales after Limewire shut down: Swift’s triumph in the sales chart is one of the first success stories of music artist after Limewire.com’s big shut down last week."
But here's the big question: assuming we accept this massive dropoff in P2P file sharing, was there a corresponding jump in music sales?
"Album sales for the five-week period ending March 21 totaled 31.95 million units, up 4.5 percent from the corresponding period in 2010, and digital downloads were up 12.7 percent to 130.1 million units, marking the first time since 2004 that music sales have experienced a year-over-year gain of this length, according to Nielsen SoundScan."
Every single one of the allegedly infringing works listed in the affidavit, were in fact authorized by a representative of the artist. They were protected speech, and the government shut it down ex parte.
You're confusing the issues. If the songs were in fact authorized by the copyright owners (which they weren't), the website owner would argue that there was no copyright violation in the first instance. There is no need to resort to a First Amendment defense unless there is an underlying act of copyright infringement (which you argue there was not).
The affidavit appears to make it clear that it believes that these sites are guilty of direct criminal copyright infringement, rather than any sort of contributory copyright infringement.
A direct quote from the warrant: "a civil seizure warrant is authorized under 18 U.S.C. 2323(a)(1)(A)-(B) and 981(b) because the SUBJECT DOMAIN NAMES are property used and intended to be used to commit and facilitate the commission of criminal infringement of copyrights."
Why is it clear that they believe the sites are guilty only of direct criminal copyright infringement?
And the site appears to be full of embedded videos and links to other sites. Not unlike Techdirt, really.
You do realize that you shifted the conversation to something entirely different, right? You stated earlier that you couldn't find the sites at all, but now you seem to admit that you can find them, and that they contains links. And now you're talking about the liability for the links. I'm not chasing you down that rabbit hole.
If you genuinely believe that then you presumably believe that any website linking to copyrighted content for fair use can have their domain seized. If not, why not?
You're doing it again. You misstated my position, I corrected you, and now you've shifted the conversation again by inventing another argument I never made.
At most they are guilty of contributory infringement, which would be highly contentious in light of the encouragement by the rights holders.
You again erroneously assume that the majority of music, movies, and other files linked to on these sites were licensed by the owners or otherwise legal. They weren't (and still aren't). These sites induced copyright infringement on a large scale (double check the sites if don't believe this). There was more than enough evidence to seize the domain names, and there is nothing preventing the site owners from continuing their activities on another domain. If they want the old domains back, they are free to argue that their content is all fair use, licensed, etc. in court.
Perhaps when you can explain the points above, then add on the issues about the first amendment, then I can agree to disagree. In the mean time I am compelled to keep asking questions. If you really want to placate me then you could admit that whatever you believe the legalities to be, some of those domains should not have been seized.
I'm not here to "placate" every concern, idea, or thought you have with respect to the constitutionality of domain name seizures. I simply set out to correct an incorrect statement of law which is that an email from a record label employee constitutes a digital distribution license on behalf of a record label, magically making any and all distribution of those files legal.
Unfortunately I can't check this, because the domains were seized.
You can find the sites still, because their content still resides on the servers, including all of their forum and blog content. This site has highlighted the fact that many of the sites simply purchased new domain names. And as was discussed above, a simple Google search will take you to these new domains.
Regardless, I don't get how you can claim that what was in the affidavit doesn't matter at all.
I never said it didn't matter at all. I said that it was relevant to the standard of proof necessary for the seizure.
What is the point of the affidavit including any examples if they don't have to be evidence of actual infringement?
Back to my original point, they are infringing. An e-mail from a record label employee does not consitutes a valid content distribution license. Even if you disagree with this point of law, a judge could easily find the standard for the seizure was met given these facts.
Whatever technicalities you care to argue over, as Mike has pointed out, you are defending the indefensible.
Things are rarely so black and white, especially when it comes to issues of constitutional law. We disagree, and that's okay.
If the only content on the site is the stuff their agents sent...
That wasn't the "only" content on the sites... not even close. Torrent-finder.com did not provide links to movies submitted by the studios. The blogs and sites were used overwhelmingly to post unlicensed content. If the site owners go to court to fight the seizure, they will have to show that the content was in fact licensed (or otherwise legal). Even in the remote case where files were sent by label employees, they will not prevail in doing so.
Your understanding is incorrect. I saw the emails in question. Not only that, but they were sent to sites whose widespread known MO was to post links to the downloads themselves. The promoters knew exactly what they were doing, and played up the fact that these songs were available to download in a promotional manner.
I don't know that a label employee sending a file to a blog owner "known" (by whom?) to distribute files is enough to constitute a content distribution license on behalf of the record label. The blogs would have to prove(in court) that they had an implied license with someone who was an authorized agent of the label, and thereby had the power to grant digital distribution licenses on behalf of the organization. Proving as much would be exceedingly difficult.
As has been discussed before, however, the agent used the few examples in order to meet the requisite standard of proof for the seizure only. A reviewing court need not confine itself to the few examples listed in the affidavit.
Have these emails been disclosed to the public online, by the way?
If it is authorized content, it cannot possibly be infringing - and materials that are not infringing are absolutely, positively protected by the First Amendment
Has it been shown that the labels authorized the website owners to distribute the songs on the Internet, as opposed to merely sending a track for a blog owner to review? My understanding was that a copy was sent to certain bloggers so that they might post a positive review of a new album/song, not so they would distribute it online.
I was saying the suggestion via the [citation needed] that music today sucks is elitism
I made no such suggestion. In fact, I don't think music today sucks. I merely asked you to identify the source for your contention that there is more "good" music today "than ever before."
You made a stupid comment, pretending there were no such filters
Again, I did no such thing. I have no doubt that there are other filters. I merely asked you to identify the "good filters" you were speaking of. Why do you misrepresent my positions? Perhaps inventing arguments is your way of justifying childish responses?
I would say the business of owning content has indeed been outdated.
If it is "outdated" it is not because consumers no longer enjoy or desire the content produced by these businesses. While their product is extremely popular in the marketplace, it is only because of widespread, illegal activity that you deem these companies "outdated." The mere fact that piracy exists today does not mean that it will continue unregulated forever, and that those who depend on sales for their livelihood are all a part of an outdated business model.
To put it another way, I would agree with your position if the majority of consumers decided to support artists who create, fund, and distribute their music online for free (and sell ancillary products, tour, etc. to make money). In that circumstance, record labels would be driven out of the market by a legitimate competitor. However, it is more than a little problematic to say that a market participant is "outdated" when their business model produces a wildly popular product in the marketplace. As I've said before, it isn't the business that's broken, it's the locks on their door.
Ah hypocrisy at work. Moreover, since when is supporting a position with evidence elitism?
I call them "friends." Might help to find some. :)
Do the personal jabs make your think your positions are stronger? You seem to do this a lot on this site. If anything, they make you look like a playground bully and detract from your (often strong) points. Let's debate the merits of the issues, shall we? Of course friends will make recommendations. Does that mean that the traditional filters (labels, studios, publishers) don't do a vastly superior job at identifying, developing, and promoting works that the public at large values?
Um. So then they're not overwhelmed by all the supposed "crap" on the internet, are they?
You're missing the point. The noise increases for consumers if we don't care that the traditional big filters (labels, studios, publishers) are driven out of business by piracy. Those traditional filters also play a crucial role in non-digital contexts, such as markets where computers and/or regular Internet access isn't available. Therefore, if we are considering what is best for "society" and the "public" it is important to consider those markets as well.
(untitled comment)
Paramount Pictures, for instance, has invested roughly $1-$2 million per year to produce 20-30 micro-budget films each year (compared to the 10 or so big-budget movies they release each year). The budgets for the films often don't exceed $100,000, and the films are not always slated for traditional theatrical distribution. If they are released, Paramount has rethought how they can be marketed and distributed inexpensively using digital distribution, grass-roots marketing campaigns, and midnight screenings, among other strategies. The head of Paramount's film group had this to say of the endeavor: "This gives us the ability to find new voices, new ideas, and potentially new movies to foster the most outrageous kinds of thinking." Paramount's CEO reaffirmed this new way of thinking: "This is about fostering new talent and finding filmmakers around the world."
I think it's important to give credit where it's due, and to not make hasty generalizations. Paramount started this effort in 2009 and has since continued to make blockbusters at the same time. To say that major studios won't/haven't focused on making good movies for less money is to ignore the real and ongoing efforts of major studios like Paramount.
Source: http://online.wsj.com/article/SB10001424052748704193004574588583589732034.html
http://latimesblog s.latimes.com/entertainmentnewsbuzz/2009/12/paramount-to-launch-microbudget-movie-division.html
Re: Re: Box Office Revenues
If you have evidence that the article I referenced is "false," I would love to see that evidence and learn more about these issues. In addition, if you have sources which show that studios actually receive the first two months of "profits," I would be very interested in seeing that evidence as well. Even if it were true that studios keep the first two months of "profits," it seems like you concede the point that box office revenues do not reflect the amount of revenues studios actually bring in (instead, it is some percentage of that). That in and of itself seems relevant to a discussion of Hollywood accounting.
Box Office Revenues
Source: http://www.slate.com/articles/arts/the_hollywood_economist/2005/05/gross_misunderstanding.html
An other perspective from the above cited article:
"Consider, for example, Touchstone's Gone in 60 Seconds, which had a $242 million box-office gross. From this impressive haul, the theaters kept $129.8 million and remitted the balance to Disney's distribution arm, Buena Vista. After paying mandatory trade dues to the MPAA, Buena Vista was left with $101.6 million. From this amount, it repaid the marketing expenses that had been advanced—$13 million for prints so the film could open in thousands of theatres; $10.2 million for the insurance, local taxes, custom clearances, and other logistical expenses; and $67.4 million for advertising. What remained of the nearly quarter-billion-dollar "gross" was a paltry $11 million. (And that figure does not account for the $103.3 million that Disney had paid to make the movie in the first place.)"
Re: Re:
Mike,
You have a very public forum on which to post your own alternatives to SOPA or a redline of the bill that would address your concerns. Why not propose those solutions or alternatives here?
(untitled comment)
if you look at the same Nielsen reports going all the way back to 2006, they show music sales going up each year
The Nielsen percentages you cite aren't based on track-equivalent albums (TEA), which is what the 2011 1.6% figure is based upon. The 2009 TEA sales percentage was -8.5%, 2008 was -8.5%, 2007 was -9.5%, and 2006 was -4.9%.
(untitled comment)
"Bucking a years-long trend of decline, U.S. music sales continued this year's upward swing, rising 1.6% through May 8, according to Billboard analysis of Nielsen SoundScan data."
Source: Billboard
Re: Re: Re: Re:
(untitled comment)
"Taylor Swift enjoys ‘Speak Now’ album sales after Limewire shut down: Swift’s triumph in the sales chart is one of the first success stories of music artist after Limewire.com’s big shut down last week."
http://www.popherald.com/limewire-taylor-swift-speak-now-album/1609
(untitled comment)
"Album sales for the five-week period ending March 21 totaled 31.95 million units, up 4.5 percent from the corresponding period in 2010, and digital downloads were up 12.7 percent to 130.1 million units, marking the first time since 2004 that music sales have experienced a year-over-year gain of this length, according to Nielsen SoundScan."
-Source: http://www.grammy.com/blogs/music-sales-up-for-five-straight-weeks
Re: Re: Re: Re: Re: Re: Re: Re: Re:
(untitled comment)
Every single one of the allegedly infringing works listed in the affidavit, were in fact authorized by a representative of the artist. They were protected speech, and the government shut it down ex parte.
You're confusing the issues. If the songs were in fact authorized by the copyright owners (which they weren't), the website owner would argue that there was no copyright violation in the first instance. There is no need to resort to a First Amendment defense unless there is an underlying act of copyright infringement (which you argue there was not).
(untitled comment)
A direct quote from the warrant: "a civil seizure warrant is authorized under 18 U.S.C. 2323(a)(1)(A)-(B) and 981(b) because the SUBJECT DOMAIN NAMES are property used and intended to be used to commit and facilitate the commission of criminal infringement of copyrights."
Why is it clear that they believe the sites are guilty only of direct criminal copyright infringement?
Re: Re:
You do realize that you shifted the conversation to something entirely different, right? You stated earlier that you couldn't find the sites at all, but now you seem to admit that you can find them, and that they contains links. And now you're talking about the liability for the links. I'm not chasing you down that rabbit hole.
If you genuinely believe that then you presumably believe that any website linking to copyrighted content for fair use can have their domain seized. If not, why not?
You're doing it again. You misstated my position, I corrected you, and now you've shifted the conversation again by inventing another argument I never made.
At most they are guilty of contributory infringement, which would be highly contentious in light of the encouragement by the rights holders.
You again erroneously assume that the majority of music, movies, and other files linked to on these sites were licensed by the owners or otherwise legal. They weren't (and still aren't). These sites induced copyright infringement on a large scale (double check the sites if don't believe this). There was more than enough evidence to seize the domain names, and there is nothing preventing the site owners from continuing their activities on another domain. If they want the old domains back, they are free to argue that their content is all fair use, licensed, etc. in court.
Perhaps when you can explain the points above, then add on the issues about the first amendment, then I can agree to disagree. In the mean time I am compelled to keep asking questions. If you really want to placate me then you could admit that whatever you believe the legalities to be, some of those domains should not have been seized.
I'm not here to "placate" every concern, idea, or thought you have with respect to the constitutionality of domain name seizures. I simply set out to correct an incorrect statement of law which is that an email from a record label employee constitutes a digital distribution license on behalf of a record label, magically making any and all distribution of those files legal.
(untitled comment)
You can find the sites still, because their content still resides on the servers, including all of their forum and blog content. This site has highlighted the fact that many of the sites simply purchased new domain names. And as was discussed above, a simple Google search will take you to these new domains.
Regardless, I don't get how you can claim that what was in the affidavit doesn't matter at all.
I never said it didn't matter at all. I said that it was relevant to the standard of proof necessary for the seizure.
What is the point of the affidavit including any examples if they don't have to be evidence of actual infringement?
Back to my original point, they are infringing. An e-mail from a record label employee does not consitutes a valid content distribution license. Even if you disagree with this point of law, a judge could easily find the standard for the seizure was met given these facts.
Whatever technicalities you care to argue over, as Mike has pointed out, you are defending the indefensible.
Things are rarely so black and white, especially when it comes to issues of constitutional law. We disagree, and that's okay.
Re: Re: Re: Re:
That wasn't the "only" content on the sites... not even close. Torrent-finder.com did not provide links to movies submitted by the studios. The blogs and sites were used overwhelmingly to post unlicensed content. If the site owners go to court to fight the seizure, they will have to show that the content was in fact licensed (or otherwise legal). Even in the remote case where files were sent by label employees, they will not prevail in doing so.
Re: Re:
I don't know that a label employee sending a file to a blog owner "known" (by whom?) to distribute files is enough to constitute a content distribution license on behalf of the record label. The blogs would have to prove(in court) that they had an implied license with someone who was an authorized agent of the label, and thereby had the power to grant digital distribution licenses on behalf of the organization. Proving as much would be exceedingly difficult.
As has been discussed before, however, the agent used the few examples in order to meet the requisite standard of proof for the seizure only. A reviewing court need not confine itself to the few examples listed in the affidavit.
Have these emails been disclosed to the public online, by the way?
(untitled comment)
If it is authorized content, it cannot possibly be infringing - and materials that are not infringing are absolutely, positively protected by the First Amendment
Has it been shown that the labels authorized the website owners to distribute the songs on the Internet, as opposed to merely sending a track for a blog owner to review? My understanding was that a copy was sent to certain bloggers so that they might post a positive review of a new album/song, not so they would distribute it online.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Ooootie Call.
I made no such suggestion. In fact, I don't think music today sucks. I merely asked you to identify the source for your contention that there is more "good" music today "than ever before."
You made a stupid comment, pretending there were no such filters
Again, I did no such thing. I have no doubt that there are other filters. I merely asked you to identify the "good filters" you were speaking of. Why do you misrepresent my positions? Perhaps inventing arguments is your way of justifying childish responses?
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Ooootie Call.
If it is "outdated" it is not because consumers no longer enjoy or desire the content produced by these businesses. While their product is extremely popular in the marketplace, it is only because of widespread, illegal activity that you deem these companies "outdated." The mere fact that piracy exists today does not mean that it will continue unregulated forever, and that those who depend on sales for their livelihood are all a part of an outdated business model.
To put it another way, I would agree with your position if the majority of consumers decided to support artists who create, fund, and distribute their music online for free (and sell ancillary products, tour, etc. to make money). In that circumstance, record labels would be driven out of the market by a legitimate competitor. However, it is more than a little problematic to say that a market participant is "outdated" when their business model produces a wildly popular product in the marketplace. As I've said before, it isn't the business that's broken, it's the locks on their door.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Ooootie Call.
Ah hypocrisy at work. Moreover, since when is supporting a position with evidence elitism?
I call them "friends." Might help to find some. :)
Do the personal jabs make your think your positions are stronger? You seem to do this a lot on this site. If anything, they make you look like a playground bully and detract from your (often strong) points. Let's debate the merits of the issues, shall we? Of course friends will make recommendations. Does that mean that the traditional filters (labels, studios, publishers) don't do a vastly superior job at identifying, developing, and promoting works that the public at large values?
Um. So then they're not overwhelmed by all the supposed "crap" on the internet, are they?
You're missing the point. The noise increases for consumers if we don't care that the traditional big filters (labels, studios, publishers) are driven out of business by piracy. Those traditional filters also play a crucial role in non-digital contexts, such as markets where computers and/or regular Internet access isn't available. Therefore, if we are considering what is best for "society" and the "public" it is important to consider those markets as well.
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