I admit it – when I heard that the MPAA was sending someone to SXSW to sit on the “The Future of Darknets: Can Hollywood See The Light?”, my first thought was, “That’s gonna be fun.” You know, fun in the way that root canals happening to someone else are fun. Fun, fun, fun.
And it was. I have a sick sense of humor that way. As Kevin Smokler said the next day, “There’s a street fight a-brewin'”.
Let me set the scene: the panel was hosted by J.D. Lasica, author of Darknet: Hollywood’s War Against The Digital Generation. Panelists included Kori Bernards of the MPAA, Mark Ishikawa from BayTSP, Ian Clarke, creator of Freenet, Heather Champs from Flickr (who was mad as hell about the DMCA, a perfect mood for the panel), and Dave Toole of Outthink. Oh, and a room packed with tech geeks, media consumers, and filmmakers. These groups were not mutually exclusive.
So, yeah, it starts with Ishikawa explaining BayTSP’s role in anti-piracy enforcement for the major motion picture studios. Thanks to enforcement, incidences of piracy are dropping, more or less. Feature film piracy has dropped, music has fallen, but television series piracy has increased. Well, you know, the studios have gone hog-wild releasing old series on DVD. It was bound to happen that more TV would be let into the wild.
The industry’s approach to anti-piracy and copyright education continues, in large part, to be litigation. This despite the general agreement among panelists that most consumers don’t fully understand the ins and outs of copyright law. Suing your customers is rarely a good business plan, especially when it’s done in a way that makes for unflattering headlines. Later in the session, Ishikawa cited as proof of consumer awareness the “I Agree” legal agreements many of us (him included) click on without reading. I disagree.
I have strongly and (sometimes) eloquently defended the motion picture studios’ anti-piracy efforts. I believe in the anti-piracy effort. Piracy is a huge problem; Bernards put the number at approximately $5.4 billion. The attitude that you’re only hurting a major corporation is wrong. The pain flows up and down the entertainment industry food chain.
It has been said that there aren’t enough lawyers to sue every consumer on the planet. The entertainment industry will die trying — and that’s the problem. The entertainment industry is killing itself. Champs noted, after stating that Flickr had been served with an overly large DMCA notice, that most of the people who infringe copyright on the Flickr site do so out of ignorance. People want to play by the rules; the rules simply don’t make sense anymore.
One audience member noted the complex web of issues surrounding the act of clearing copyrighted media for remixing (or fair use). The task is daunting — in the “Unfair Use” article linked below, a filmmaker went through the process of trying to clear (acquire permission) a five-second clip of The Simpsons. Now, I think five seconds of a television show on a screen in the background of a shot constitutes fair use. Filmmaker Jon Else (Sing Faster) tried to do the right thing — Fox wanted $10,000, which is the documentary rate. Which is out of bounds.
I’ve [Jim Feeley] heard Else tell this story a couple of times. Each time someone listening asks why he didn’t just follow the fair use doctrine. And I’ve had many discussions with other producers and writers about fair use. Some think fair use is a well-defined and accepted means of using copyrighted work for criticism, news reporting, commentary or research. Alas, here’s what the U.S. Copyright Office has to say: “The distinction between fair use and infringement may be unclear and not easily defined.”
We live in a world where the rules are not clear and constantly shifting. Documentary filmmakers overspend on clearances because it’s not a standardized process. The studios, as I’m fond of noting, are not charities. But the entertainment industry is often overly aggressive about protecting copyright. There is no judgment being applied. It’s like having a zero-tolerance policy that punishes a girl for taking Midol for cramps. The industry (I’m talking motion picture, music, and publishing) has an opportunity here to make even more money if they apply logic and fair pricing.
Because — and I believe this fully — people do not object to paying for media. iTunes has proven that with enough accessibility (key) and the right price (also key), people are happy to enter into a commercial transaction.
Another audience member gave the example of having a legitimate HBO subscription. Unfortunately, he’s in Austin right now, working, and while TiVo picks up The Sopranos, he can’t watch it. Now, recall, he’s paid for the right to watch this show. And it’s a situation where he’s unable to watch it. Factor in the press’s tendency to “spoil” surprises. It’s no small wonder that he wants to see the program, doesn’t want to pay twice. He made a legitimate point: is it really piracy if you’re accessing something you have paid to access, even if you’re accessing it in a different manner?
This is the world we’re living in. The MPAA recently violated its own rules by infringing on the copyright for the documentary This Film Is Not Yet Rated. Bernards argued that there were underlying legal issues, and possibly that’s a valid point. But rules are rules, and it appears the MPAA broke theirs. Appearance matters, especially when you’re the good example.
Though some of the filmmakers in the audience pushed the issue that they deserve to be paid for their work — and Clarke, possibly misstating his point, indicated that there is a free aspect to copying from the Internet — the audience wasn’t talking about piracy. They were clearly focused on the issue of fair use, fair system, and personal choice. They don’t want to be restricted by DRM. They don’t want to be forced to buy ten songs when one is enough. They don’t want appointment TV. And they’re not playing that game anymore.
There was a strong feeling from the majority of the audience that the system is broken — what was the industry doing to fix it? There was a lot of anger toward the entertainment companies in that room. Right now, consumers and artists are making their own noise. They’re moving beyond the traditional media. This is something that entertainment giants aren’t equipped to handle — mostly because they’re not listening to anyone outside their sphere. Old media is killing old media.
In my next post, I’m going to apply this idea to the state of radio today.