Neutral Density

Can The End of “Net Neutrality” also be the End of Piracy?

Who do I Hate More, the FCC or Comcast?

This past Tuesday, the US Court of Appeals in the DC Circuit sided with cable and broadband giant Comcast over the FCC, seriously challenging the idea of “Net Neutrality.” The idea of neutrality, something I used to think was a good idea, is that the internet doesn’t belong to anyone in particular – so ISP’s should simply let people do whatever they were going to do with their service, treating all information as ones and zeros being pushed down the splash-mountain pipeline of the internet, landing on our monitors with a satisfying rush of data. Whoopee.

So if the ISP is sending emails (very small files), or spam (also very small files generally), or… Say… Full movies (extremely large files), they were not allowed to charge the user any differently. That was what the Federal Communications Commission (FCC) basically told all ISP companies. And as the pipes of broadband have widened over the years, so have the sizes of files going through them – and they ain’t home movies either.

So I suppose the question, from the evil-sucky-meanie-pants corporation is this: Why should we not charge people more if they’re using Bittorrent file sharing sites and we know it? Comcast (who is in the process of purchasing NBC) has a solid reason to want content – and therefore their income stream – protected. So could this be a step closer to the evils of someone owning the “series of tubes,” or is it the first nail in the coffin of piracy? And if it assaults the media pirates of the world, what freedoms do the law-abiding among us have to lose?

Personal Freedom or Ass-Raping? A Cautionary Tale

Firstly, let me say that I obviously have a bias here. When I’m lucky, I am paid to be a content creator. And as such, I believe that I have been the victim of piracy, specifically with my feature film (the unfortunately-titled-but-I’m-still-proud-of-it “Alien Raiders“).

A little story – I posted the trailer for my feature directorial debut on youtube on July 28, 2008, then set about trying to drive traffic to the youtube page so people would watch it. By December, I was ecstatic that I’d gotten around 5,000 hits on my straight-to-video horror flick. I was also quite satisfied with myself that after convincing Warner Brothers to allow me to take the film on the festival circuit that none of my screeners had been pirated – a real fear. Then one day in December 2008, I started getting a lot of comments on the trailer and I noticed that we’d more than doubled our roughly 5K hits in ONE DAY. And newly-posted comments were talking about something called “aXXo.” aXXo, I learned, was the alias of a movie pirate or pirates who ripped DVD’s as they came out and posted them online for free. I already knew about bittorrent – it’s a method by which a movie is ripped into a gajillion pieces and sent over the internet. Unlike the fully-defanged napster.com, there is no centrality to where the files are accessed, so nobody’s at fault. And by “at fault,” I mean there’s no one person to shut down.

It should be noted that Bittorrent’s sidestep from the Napster peer-to-peer exchange to the completely anonymous one they use, in my opinion, is Bittorrent’s first admission of guilt, or at least knowledge that what they’re doing is essentially illegal. If it wasn’t illegal, they wouldn’t have to fragment and decentralize the golden node from which all content flows. But more on their knowledge of their own guilt below.

(NOTE: when I wrote this, I was wrong about Bittorrent and I apologize. As Sadie Tucker’s response below explains and I have verified, Bittorrent is a 100%-legal protocol for moving large files around the internet more efficiently. I should have made the distinction clear between Bittorrent and those who use it to move rather large legal files around and the media pirates who use Torrent streams illegally to distribute material that’s not theirs to release)

So on that day in late December (two months before the street date of “Alien Raiders”), when my hits began doubling pretty much daily and the comments were things like “aXXo FTW!” my first thought was “oh fuck, somebody pirated one of my festival screeners and WB’s going to send the legbreakers to my house! Run! Run coward, run!” But I soon found out that what had ACTUALLY happened was that “Alien Raiders” had been released in Japan in late December, and on that very day the film was pirated. I called Dan Myrick, my executive producer to narc out the bad guys so WB could shut down the torrent. His response was “don’t worry, that happened to all of our titles.” Indeed, it had.

This began a vision quest I had into the pros and cons of piracy from the filmmakers’ point of view. First the pros:

  • People are watching your film.
  • Lots and lots of people are watching your film, so shut up and bask in the eyeballs.
  • You made the film so people would watch it, right? Shut up then, because lots and lots of people are watching your film, jerky.

Then, the cons:

  • I don’t get to make movies because I’m awesome and talented or because lots of people watch them, I get to make them because they make money for someone.
  • The main age group who would consume a film like “Alien Raiders” is demographically similar to the group who would steal it.
  • A generation who first started dicking around with computers in the wake of Napster has grown up to believe that they are free to steal content off the web, because there will be no repercussions.
  • Of the 500,000 or more who have downloaded my movie off of a torrent site, it can be argued that some of them might have bought, rented, Netflixed, or legally downloaded it. But with a consequence-free option to steal it anonymously, they chose to spend no money on the product.

Now the people who advocate piracy will say that the free downloads of my movie didn’t really cut into the bottom line of its profitability, and in fact helped to publicize it more. Either way I can’t prove damages so it’s a moot point. Maybe that’s true but what I do know is that 2009 was the first year since the advent of home video that home video sales went DOWN. I know that the home video market overseas has virtually dried up in countries like Japan and Spain, and that film producers are no longer able to use “foreign presales” to raise money to make movies as they have in the past. The bad economy is also to blame, but box office is actually up – not spectacularly up, but in accordance with how much it tends to go up annually. So have people stopped watching movies at home, or have they simply stopped paying for them?

And I must admit here that I am not guiltless. In the heady days of Napster (1999-2001), I would spend all day on that site looking for every obscure song I ever heard once but didn’t know where to find on CD. On a dial-up connection, it could take 30 minutes to download a single song, and weeks of my life went down that rabbit-hole. When iTunes hit the scene with a legal and better way to do it, I switched and never looked back. Like a lot of people, I saw the value in being able to find and download content as I saw fit to do it, but I was not afraid to pay actual money for the privilege. And no, I’ve never downloaded a single movie, not even my own.

And in the days when I was Napster-crazy, even as I defended my actions, deep down I knew free file sharing was stealing. As I suspect most of the Pirate Bay-type people probably know, even though they defend what they do.

The Argument Against Content Piracy as Theft

I’m all for academics and eggheads, but I have to say that the argument against piracy  fails to connect the dots between their ideal world where “information wants to be free” (either an unintentional misunderstanding or an intentional misinterpretation of what Stewart Brand said at the first Hacker’s Conference in 1984) despite some enticing logic. It’s basically a Libertarian stance twisted to the point of breaking, and it even has a political movement behind it. That movement is called – no kidding – The Pirate Party. I will not bore you with their manifestoes and creeds, but it all boils down to this: They believe all information should be free – that’s free as in “no cost,” not free as in “available.” That when you copy a DVD and put it on Bittorrent or other file-sharing sites, that the original is still there to be sold, so the original value of the product is not lost. Finally, they believe that it is more important to have individual liberties in the digital world than for the evils of government and commerce to surveil anyone on their home computers. And since the millions of thefts currently taking place are done from the safety and comfort of each users’ home – that any policing of intellectual property is a violation of free speech and personal freedom.

And by the by, the people who support this movement like BoingBoing co-editor and sci-fi novelist Cory Doctorow don’t care one bit if they bring down the system with them, in their crusade to “free” all “information.” Doctorow outlines his his ideas about why big-budget movies are outmoded here, explaining to us plebes and what the future of media holds for us. In the world where Doctorow’s ideas take hold, instead of big-budget movies (or indie movies, see below), we will all become content creators for one another for free. He says, “it may not be as pretty, but at the rock-bottom prices that some of this stuff gets made for, it’s viable to make a slightly crummy-looking YouTube video that’s the exact, perfect video for you and 38 other people who are kinked just like you.”

Thanks Cory, I’ll get right on that.

So we’re all content creators (I guess you’re reading my blog, eh?), and we’re all content consumers, and we should all be allowed to the buffet for free all the time to consume whatever we want. What, then, does have value? In my opinion, the real losers here are indie films and filmmakers, which have already begun to disappear from the landscape not unlike music video directors in the late 1990’s. Why? Piracy can’t replicate the scale and bombast of the theatrical experience, so if you like seeing movies in theaters – especially big-budget Hollywood movies with sizable marketing budgets – that experience is safe. It’s the little movies that get released on home video only, or the indie gems that play a few select cities then go to DVD or Blu-Ray to find an audience. The middle and working class of movies. That’s what we’re probably going to lose first.

The Pirate argument boils down to believing that if technology allows you to steal something, and it doesn’t destroy the original, then it’s not really stealing. I would argue that when you buy a DVD or Blu-Ray disk, you’re not buying it for the flat plastic coaster or the utility of the textiles in the casing – you’re purchasing an experience. An experience that someone has made with their resources and they own it. It’s for the creator to decide if it should have a Creative Commons license attached to it or if they want to charge you $100K for the privilege of watching – and experiencing it. And it’s for you to decide if you want to pay what they’re charging, and if you’re not, then you don’t get that experience. Experience of whatever you want is not a right, which is why I don’t get to walk into a movie theater and sit in an empty unsold seat whenever I feel like it.

And as filmmakers, we don’t have art galleries, we don’t sell the original, we don’t have concerts and swag to sell consumers. We’re a little more like writers in that our final product is the thing we sell. Doctorow, the various Pirate Parties, and people who support piracy say that they’re just doing what the technology allows, our economic model has to change. Which it will, I suppose, but only because law enforcement is doing nothing to stop illegal downloading.

For the Love

I hereby invite anyone who believes the cause of the pirates is good to come visit me on a set. They can hang out by the trailers, they can eat some crafty, they can meet the actors, they can see the sweaty grips, electrics, art dogs, etc. and  witness first-hand how much labor goes into creating the ones and zeros that they assume “want to be free.” The only condition to my invitation is that I want them to say something to everyone’s face on the day, while we’re all devoting our precious lifetime to making this perishable good called content. The thing I would love it if the piracy-siding individual to say is that this – “all your labor, all your brain power and creativity ultimately makes something which has no value because the end product isn’t a textile or a building or a crop of food, just a digital code. Ipso-facto it wants to be free.”

Again, I’m unclear what is supposed to cost money in the Pirate Party’s or Doctorow or aXXo’s world – but for a group of people who don’t want copyright to staunch innovation, they seem to overlook the fact that their efforts will kill the act of creation itself by robbing it of its profitability. Are we in the horse-drawn-carriage business at the dawn of the motorcar? I would like to hope not, as that would mean that Doctorow is correct, signaling the death-knell of indie film and an age when all we will have for entertainment are kitten-hits-dude-in-the-nuts videos on youtube for 38 fans.

I’m not in this for the money, never have been. I suppose I’m one of the lucky people who gets paid to do this from time to time. That being said, there are hard costs, sweat equity, actual things purchased and destroyed in the process of making a film. And the hope is that I can use my skill-set, whatever it is, to earn a living just like anyone else. Unlike musicians who can afford to make their recordings a loss-leader for their tour, movies are the sole end product filmmakers create and to give them away – and I don’t mean to make a copy for yourself under Fair Use or to show it to a handful of people at your house or something – is to distribute my film which robs me of the ability to distribute it myself for money. So, sorry Pirate Party and all of you on Bittorrent, you’re part of the problem and despite your academic sidestepping, and I think you know it.  If you want to live in a Utopia where all media is free in your environment, you’re also going to have to live in a Dystopia where there isn’t as much media in the first place, and the quality of that media is inevitably going to suffer. Perhaps the evil, corporate progress made this week by Comcast is the first step towards preventing that from happening.


16 comments on “Neutral Density

  1. Hiya
    Interesting Blog post, and I have a couple of quick comments right off the top of my head.
    first, about BitTorrent.
    The .torrent protocol wasn’t invented by or for pirates of films. software or of the high seas.
    It was invented by a software designer who was frustrated a the slow, old fashioned means of transferring data (legal or otherwise)
    In fact torrent files are used by many software companies and content creators to transfer files that were bought and paid for. The files are not, as your post mistakenly claims, splt into pieces as a “sidestep from the Napster peer-to-peer exchange to the completely anonymous one ”
    but simply because it’s a more efficient mean of transferring data.
    The same is true of the statement that this “breaking up” of files represents “Bittorrent’s first admission of guilt, or at least knowledge that what they’re doing is essentially illegal. If it wasn’t illegal, they wouldn’t have to fragment and decentralize the golden node from which all content flows”
    It had nothing to do with anonymity in the first place, so the argument is invalid.
    and BitTorret isn’t the problem here, the programmer (a “content creator”I may add) was not and is not in any way allied or associated with media “piracy”.
    What people do with his creation is no more his fault than the whole thing is Microsoft’s fault or Apples for making computers accessible to regular Joe’s.
    So blame the pirates if you will, but leave the creator of the torrent protocol out of it.
    On the subject of video sales being down there are some very sketchy and conflicting numbers and when rentals, Blu Ray sales and DVD purchases are all aggregated there is compelling data to show that like the box office, numbers are up. Way up.
    The motion picture industry in America is even better at creative accounting – as many in the industry can attest- than at churning out mindless summer blockbusters. And if there is any drop in video sales, a shaky proposition out of the gate, might I suggest it’s because of these selfsame crappy blockbusters – lets face it, who wants to see the latest action movie, or superhero epic more than once? I wonder if sales are down on films with smaller budgets and less explosions.
    Finally, and this is going to be cut short because this is already longer than I’d intended, your espousal of the “pirates” philosophy is essentially a straw man argument in that you have presented a false argument and then argued against that instead against any real views from the other side.
    Okay. whew
    Once again thanks for the well written and interesting post. I’ll be looking forward to reading more (and reading your tweets as well – it was Twitter that led me here)in the future.
    have a great day.

    • Thank you for your correction on the Torrent issue. I will leave my incorrect assertions in the blog post (rather than re-edit them to make myself appear smarter) but I think the only correction I need to make is that the Torrent file-sharing system obviously appealed to those who would pirate material, so they moved from a centralized system to one that cannot be shut down at a single node. Torrent has every right to exist for legal means, but we all know that it is used to transfer illegal copies and used frequently.

      At the funeral of a a friend of mine who was in “Alien Raiders,” a mutual friend walked up and told me how much he loved the film, that he’d bittorrented it that week. I was flabbergasted at his honesty, really – he just walked up and told me that he’d stolen my movie at our dead friend’s funeral.

      I chided him and he agreed to put the movie in his Netflix Queue.

      I only bring this up to point out that obviously many of the people using this technology in an illegal or unethical way don’t even see the violation in it.

      One final thing, and look back at my post for info on this – Box office is slightly up, consistent with box office trends year-to-year based on inflation, etc. Also, 3D is bringing in money to the box office. What’s down? DVD sales. Please find me the data that shows that they’re up and I will happily eat some crow on this, as my movie was released on DVD and it would be great to know that sales or rentals are up. And as far as I know, the MPAA would love to tell people that the numbers are all up because they are little more than a lobbying arm of the motion picture industry and as an organization the MPAA as such has doesn’t make more or less money if an individual film does well.

      I know my local Borders cut the DVD section in half, and two Blockbuster Video stores and a mom-and-pop video store near my house are now no more. Netflix is slightly to blame, but they’ve been around for a while and Redbox hasn’t really taken hold in LA that I know of. Overseas is more dismal, where there is even less law enforcement than there is here.

      Thanks again for your response!

      • Bit Torrents have been around almost as long as Peer to Peer programs. I don’t think BT’s are necessarily to blame for all of the woes the movie and music industry has been suffering. Sure, if you account for the economic climate, that would explain some, but not all, of the drop-off Blockbuster and other stores have been experiencing.

        But ultimately, I’m gonna have to lay most of the blame for this one squarely on the industry. Nevermind the fact that CD’s and movies are retardedly more expensive than they used to be, but on top of the the quality of that media has been rapidly declining since then. It got to the point where spending $40 to see a movie or buying a $15 CD was just too much of a gamble. I think it’s safe to say that advertisers know what they’re doing. They can sell just about everything without any obstacles getting in the way, including the truth. Fact of the matter is, my money is precious to me. And I’m not about to waste a bunch of it on a falsely advertised movie or a CD in which I will only enjoy two tracks.

        That’s where iTunes got it right. Try before you buy. Sure it’s still easier to download stuff for free than to pay a buck for a song. But speaking from experience I can say that nearly everything that I’ve downloaded and then watched/listened to… if it was quality, and I enjoyed it… I would usually purchase a legit copy. I even did that with your crappy goddamn movie! 🙂

        I’m all over the place with my points here, and I know I can’t use myself as an example for every pirater out there. But to me, this is a fight that the MPAA or FCC or RIAA will never win, because the point remains that all of those industries are still raising their prices without raising the quality of the product as well.

        So until, I’ll just stick with my BitTorrents. And if the industry decides to get it’s shit together, maybe I’ll start paying for things sight unseen again. But I doubt either of those things will happen.

      • Steve,

        You are setting up a false right/wrong argument here — something that I accused Ben of doing as well. Your options aren’t “pay for something sight unseen” or pirate it. Between trailers and clips posted online, critic and peer reviews, you should be able to get a strong sense of whether you will like something before buying without needing to see it all.

        Where I agree with Ben is that there simply is no justification for illegally downloading a film. Just because you want it a certain way doesn’t mean the creator or distributor is obligated to deliver it that way. It might make the most fiscal sense to do so, but it isn’t an obligation to you as a movie watcher. Your option is to simply not buy overpriced DVDs and/or DRM crippled video files and go watch something else.

        My argument is that trying to stop the pirates is an exercise in diminishing returns. Not everyone is a pirate and not everyone who pirates would otherwise buy a file, no matter how cheap the cost, and creating complex obstacles to that only hurts legal consumers and ultimately content creators themselves.

        Basically, pick your battles and understand the real motivation of your supposed allies, because Comcast doesn’t give a grade-a crap about your pirated movie and that’s not at all why they want to fight net neutrality.

  2. I agree with Sadie that you have a bit of a straw man argument going on here, which makes it difficult to respond because I’d essentially have to dance around not defending it while challenging you.

    What I will say is that striking down net neutrality will not do one single thing to deter piracy, but it will badly hurt entrepreneurs and independent content creators who won’t be able to pay Comcast to allow their customers to access their content. People who want to pirate content will pirate content and that’s that. People made copies of VHS tapes back in the day, circumventing macrovision, and they cracked and burned copies of DVDs and traded them and now they trade Blu-Ray movies on bit torrent. Tomorrow, they’ll build some other system to pirate content because that’s what they do, and nobody will ever build a fool proof system to stop them because it’s always easier to break into something than it is to build an impenetrable defense.

    Make no mistake — Comcast isn’t against net neutrality to protect content, they are fighting to control your pipeline to the internet, to be able to charge Apple, or YouTube, or Neptune Salad to allow their subscribers to access your site/content.

    I would suggest that rather than cling to the old system, which will, just like the record industry, fall apart, indies should be exploring new ways to make money using the advantages this technology does offer. It’s not perfect and there’s no model to follow yet, but we are living in a transitional time and that means many more possibilities for indies than when the gatekeepers were strong and the old system ruled.

    Here’s a filmmaker who is trying a different model with some success, perhaps not entirely sustainable but it’s an ongoing project: http://www.techdirt.com/articles/20090824/1723375986.shtml

    • I actually don’t agree that I have a straw man argument as I don’t believe I’m caricaturing the pro-piracy stance – I’ve gone to great lengths to understand it, and I think it’s a foolish position to take as a media creator that piracy is inevitable, so we should just accept it and move on with our lives. There are actually laws against media piracy, they simply aren’t being enforced. If we just choose to lay down our weapons and let the pirates do whatever they want, then you and I are both out of a job.

      The difference between the creepy guy on the corner selling a DVD of the newest theatrical release and people like aXXo is that the creepy guy still has a profit incentive, aXXo has another agenda entirely. People like The Pirate Party and Cory Doctorow would choose how your content which you paid to create is distributed, and that’s where I draw the line.

      And I’m not pro-Comcast here, I just side with Comcast more than I side with people who believe its their god-given right to steal content someone else paid for and distribute it. I’m glad that the law on any level is willing to poke holes in the argument that intellectual property rights are more valuable than one’s right to freely pirate whateverthefuck you want.

      Also (and I’m a fan of “Sita Sings the Blues” incidentally, having seen it at a film fest), it doesn’t look like Nina Paley is getting very close to the break-even point with her film having grossed about $40K. AND she says that she would prefer someone else handle the distribution. I only know one filmmaker who’d rather self-distribute by himself than have a distribution entity handle the specifics, and he has yet to break even on a very modestly-budgeted project.

  3. Great blog post, and great responses from your readers. Comcast and the other cable monopolies aren’t out for anyone but themselves. The difference with Comcast is that they’re about to become content providers. So unless you’re working for them, you might see yourself squeezed out anyway.

    As far as piracy goes, I think Mike hit it on the head. Creators are going to have to find a new business model that works. The print industry, particularly periodicals, are dealing with that right now. They’re not dealing with pirates so much as people accustomed to getting free information on the internet, but it amounts to the same thing. You can lament the changes and injustices that are going on, or you can start looking for ways to adapt. Enforcement of existing laws, in this case, just doesn’t seem practical. The entertainment industry isn’t in trouble because of pirates; they’re in trouble because their business model is no longer viable.

    As a writer, I have a lot of anxiety about publishing and piracy, but I know two things: There is a demand for good writing; There are people willing to pay for it. This is true of books, movies, music, comics, etc. The trick is finding out how to get our product/art/whatever into the hands of those people.

  4. Just to be clear, I’m not condoning piracy, nor am I suggesting that everyone simply walk away from the issue, but when you lump people like Cory Doctorow (who I think has gone completely off the rails lately with his rants) and pirates, you are casting too wide a net.

    Pirates are simply attempting to justify their illegal activity, whereas Doctorow actually practices what he preaches, releasing free, unrestricted digital copies of his books, even the ones in-print. He is actually a creator making the case for free culture, not a pirate looking to justify illegal activity.

    My point about adapting is this: While you may have jumped on the iTunes bandwagon early on, I did not, because I did not want to be locked down to only apple products due to the DRM that was included. If I buy a song, I want to play that song on any device I own, whenever I want. As you said, I paid for the experience, not the format.

    Now the studios are going down the same route. Want to buy a movie digitally? Get one at the iTunes store if you plan on only buying Apple products for the rest of your life because that file won’t play on a non-Apple device.

    Want to burn that file to DVD and watch it on your TV? Sorry, buddy, better go buy an Apple-TV to watch it that way, or else go buy it again on DVD. But wait, am I buying the format or the experience?

    I’d love to watch Where the Wild Things Are on my Netflix streaming, which I happily pay for, but Warner Brothers won’t release it. In fact, they won’t even let Netflix rent the DVD now for a month or two after it’s release. Yes, it’s their right to do that, but it’s completely stupid to think that denying people the ability to see your content when and where and how they want isn’t going to result in a black market forming — that’s just the way people are, whether it’s Levis and Beatles records in the Soviet Union or that new release on bittorrent. I’m not saying give up, I’m saying adapt. You can go fight the pirates, which is a losing game in my mind, or you can adapt — come up with new ways to make money, distribute your film and get paid.

    My reference to Nina Paley wasn’t that she figured it out, but that she is trying to adapt to the new opportunities and issues facing content creators.

    I spent an enormous amount of time in 1999 sending takedown notices to eBay for auctions of pirated Blair Witch VHS tapes. I worked with Artisan to try and get the movie, which had been transferred to digital format, off many peer-to-peer servers on college campuses all over the US, and whatever came down was instantly replaced. I was a rat on a wheel going nowhere and in the end, I don’t think that piracy hurt Blair Witch at all. In fact, the word-of-mouth it created may have been much more beneficial.

    Now, I’m not saying that every pirated movie gets the same result, and I’m NOT justifying piracy. I just think it’s a waste of time trying to fight a battle that ultimately can’t be won when you could be innovating for the future.

    Check this out: http://www.openindie.com/

    Again, not saying it’s the magic solution, but it is an attempt to figure out a new and better way.

    As for Comcast, again, it’s not a matter of side with Comcast or side with the pirates. The pirates are doing a miniscule amount of damage to indie filmmakers compared to what eliminating net neutrality will do. Supporting one doesn’t mean you are taking a stand against the other.

    • Not to belabor this, Mike, but I am lumping Doctorow in with the Pirate Party, not “pirates” per se (like aXXo, for instance). But the Pirate Party (various ones around the world) and Doctorow have shockingly similar agendas. The whole “ideas want to be free” thing taken to a fairly anarchist/libertarian extreme.

      This entire argument boils down to an arm wrestle between two values. Which matters more – my right to ownership or your right to privacy, and depending on which side of the argument one finds one’s self, that’s the important value. And I suppose that the one that wins in this match (for me) is the one which was infringed upon first. And although I see the comparison, I think that the differences between bootleg VHS tapes in 1999 and P2P file sharing today is less than equal.

      I began this post musing about who I hate more, Comcast or the FCC. I think that what both organizations do is not entirely within my value system. But the internet can’t be the wild west forever, someone eventually moves into every space and imposes order. Between the FCC, giant corporations, or millions of people who want everything for free I know I at least prefer the first two over the third.

  5. First — I did also say that in addition to the VHS tapes on eBay it was ALL OVER the p2p networks. Literally hundreds of people have told me that they first saw it in their college dorm months before it came out, so while the numbers of people on it have grown, the core issue remains.

    I disagree that it is an either/or situation, however, and I’m stunned you would choose to give up your privacy if it were an option. How about this: Wal Mart decides that people have been shoplifting from them, so they create a system that lets them track the whereabouts of every packaged goods item everywhere. What you buy, where you and the products are, how much you paid for it and how you paid, everything that can be gleaned from it sent to a central database that they assure us all is secure and won’t be hacked into, and it’s just so they can prevent some people from shoplifting.

    How far are you willing to go? Can the MPAA put cameras in your house to make sure you are only watching content you’ve paid for. Promise none of that footage will leak to YouTube, seriously, pinky swear it.

    I know you haven’t proposed that, but it’s a slippery slope and I’m not willing to give an inch on that front, even if it MIGHT financially benefit me in some ways. That is just wrong on all accounts, and my response is figure out how to protect your property without infringing on my right to privacy. Two wrongs don’t make a right, simple as that.

    Do you have hard data on how many people use p2p networks to steal? Seriously, I imagine the number is much much smaller than you think. DVD sales have gone down because people have options — Netflix, Redbox (which is HUGE in many places), Amazon unboxed, iTunes, Hulu (which has movies), Cable on demand, etc. Plus, people are naturally moving away from ownership. Why buy a blu ray when in a few years it will be a hassle to figure out how to even play it, ala VHS? You can’t pin most of that change on file sharing, no matter how much the MPAA would like to.

    The internet is not the wild west, there is order, and there is a way to go after pirates and if that’s how you want to spend your time you can do that, but I’m not giving you my rights to make your job easier, no more than I would expect to be able to take all your personal data without your permission to be able to assault you with marketing messages.

    Also, again because you keep moving to an either/or arguement, I want to reiterate that refusing to give up my privacy in no way condones or supports or suggests agreement with pirates or their philosophies or the Cory Doctorows of the world.

    • So just to be clear, you’re comparing hundreds – let’s say maybe a thousand… To get absurd, let’s say five thousand? – pirated VHS tapes of a buzzworthy movie headed to theaters to 500,000 downloads of “Alien Raiders” (a guess based on the number of views of my youtube trailer that aXXo linked to the file, but I suspect the number is higher). And whereas “Blair Witch” was a must-see sensation, the equivalent of AR 10 years ago wouldn’t have registered on a pirate’s radar. And while movies like “Wolverine” apparently can absorb the loss or even use it to their advantage, smaller movies are rapidly disappearing from the landscape because they simply aren’t profitable for distributors (who can’t recoup costs) and producers (who can’t find distributors).

      So the plan for indie, or just smaller films is “find a new business model because it’s not worthwhile to fight it.” It would be one thing if the audience for these films just disappeared, but the consumption is up and as you point out there are more ways to find content today than ever before, which SHOULD be a boon for indies but it’s not working out that way.

      As for the invasion of your privacy, there needs to be a non-invasive way to track the torrent sites. Currently youtube has an algorithm that can detect any registered work on someone’s page and either shut it down or advertise and revenue-share. Granted, that’s when you plant your cactus in their flower bed. But if there were a similar way to detect copyrighted material on the internet as it’s being transmitted (before it reaches you and the privacy of your computer), a similar deal could be struck.

      But just as you give up your rights to privacy when you drive around with stolen goods in the front seat of your car where anyone (including the police) can see it, I think there’s a due-process way to suss out the pirates and strike down the piracy. It’s just that no international legal body has been willing to play whack-a-mole with the piracy advocates thusfar.

      I’ve always been an advocate of neutrality, as I’m a law-abiding person who doesn’t use the internet to steal other people’s property and don’t want to be punished because others see piracy as their right. And no, I don’t want content owners to track my every move, but there is obviously some middle ground between abdication and fascism. The genie of digitally downloadable content is obviously out of the bottle and we need to figure out how to make THAT work in a way that profits the content owners, because (for movies anyway) free ain’t working.

      • I’m comparing hundreds of people telling me they pirated Blair to your 1 person. It’s all anecdotal, but a correlation can be made.

        I seriously doubt half a million people downloaded AR. How are you calculating that? There isn’t a 1to1 ratio of views to downloads, as nobody watches every movie they see the trailer of online. I would imagine your trailer would have had to be viewed 30 million times at least to claim half a million downloads.

        Te correlation of views to taking action is miniscule – online ads often earn .03% click through rate and even fewer move to action so I’m curious how you get to half a million downloads, which would make AR one of the most viewed indie films in years.

      • The problem is that my 1 person (aXXo is rumored to be a bunch of people but whatever) chose to distribute my film in a faster, more efficient, and completely unauthorized method which illegally violated Warner Brothers’ copyright. And I should point out that BWP started from a very few circulated VHS festival screener copies as well. I can’t prove that 500,000 people saw AR (or downloaded and didn’t watch, or downloaded, watched a little of, and turned off, etc.), you can’t prove that a million didn’t. It’s untrackable, and unlike people making VHS copies and mailing them around, there are no hard costs aside from the purchase of 1 DVD to the pirates. And after aXXo, it was picked up by all the torrent sites, and to this day if you do a search for “Alien Raiders” on Twitter you will find torrent streams that have pirated it and think it’s valuable enough to tell people now, a year and a half later, where to steal the movie.

        If you’re arguing that piracy has always been as bad as it is now, I disagree. I don’t think that there’s an argument that being torrented helped my movie, or any STV movie for that matter as that market has dried up over the last two years while theatrical films held steady and broadband increased.

        You’re right that it’s conjecture how many people stole any movie on torrent (or similar) sites. But it’s not conjecture that it’s hurting the business. And obviously the business needs to adjust its model to allow for digital copies yet to prevent illegal digital copies – a pretty fine line. In other words, the business needs to adjust its model because nobody will enforce copyright in a practical way so as to discourage its routine violation. READ: The law-abiding people (either producers or consumers) will necessarily have to suffer and adjust because of the law-violating people. And as long as content is delivered on any kind of digital medium (DVD, Blu-Ray, Netflix Streaming, iTunes, VOD, etc.) people will steal it and make it available for free, violating copyright. I don’t see any other way to tourniquet the bloody stump than to either:
        a) Just assume that indie filmmakers are not going to be able to earn a living at this, given that the “Sita”-type $40K model doesn’t pay for hard costs of even the lowest-budget feature and a better one is not about to emerge. If it’s not a giant spectacle in 3D with a $20M+ marketing budget, there’s just no point in trying to own the content you pay to create. So follow Cory Doctorow down the “38 people kinked like you” rabbit-hole and make content for nothing.
        b) Make piracy (which is still against the law) inconvenient-as-hell for the casual user, as the hardcore pirate like the hardcore hacker is always going to find a way to steal whatever they want.

        Am I being reductive? You tell me what the third way is, as maybe it’s the salvation of the smaller indie film world. I would truly TRULY love to know what it is. I will say that few people are going to finance a film without an understanding that there is SOME way to recoup costs, so experimentation in the “new models” of how to make indie film viable will be slow in coming.

        My point with b) is that there will always be pirates, and we can’t eliminate the constitution to track them – but there is also a generation of people for whom piracy is just how they get content these days. It’s part of culture, and THAT is the problem. I believe people steal the content because it’s convenient to do so and nobody stops them. And as per the Pirate Party’s (and Doctorow’s) stance, it’s not stealing because you can still sell the DVD, as if the plastic disk was the point. Just like with advertising, we’re not in the business of selling plastic disks, we’re selling an audience. And that audience is choosing convenient no-stakes larceny because it makes the most sense.

        Even the “Sita” director makes the actually-reductive “it’s just 1’s and 0’s” argument, referring to DVD, Blu-Ray, and 35mm prints as the “container” which is the thing you sell and I think that’s bullshit. Why? The “container” business is going away right now and we all know it. In a matter of years, there will be no “container” except maybe theatrical (but no 35mm print) or VOD (but no tape), and you’re not going to recoup hundreds of thousands or even millions of dollars selling T-Shirts and coffee mugs. She’s lucky that she’s made as much as she has, but more than half of it was “donations.” And furthermore, I don’t understand why Pirates and (in her case filmmakers) think 1’s and 0’s are somehow valueless. It’s not the inherent value of the components of a digital code, it’s how they’re arranged in infinitely complex ways. And I hate to say it, but that’s all we have in an internet culture. So if your job has you parked behind a computer all day, your job is just shuffling around 1’s and 0’s. Should all information-workers do their jobs for free?

        The lesson to learn from Napster/Limewire/iTunes is that people want content delivered this way, so it should be done. Also, DRM doesn’t work. I personally think that illegal content providers are the ones who need to be taken down, not illegal content consumers (though they are often one in the same) – but I also think something has to be done to make it a pain in the butt to pirate copyrighted material illegally. This CAN be done at the ISP level, and although Comcast doesn’t have my best interests heart, they do have to abide by the law, something aXXo, Pirate Bay, etc. don’t have any obligation to do, and they will stream my content so long as it earns them money.

      • I was comparing the hundreds who told me they downloaded Blair to your one who told you they downloaded AR. Blair was on p2p networks even back then, and every college student in the country had fast easy acces to It, even easier than configuring a bitorrent client.

        The key word you used was “convenient.”. It’s actually more convenient to illegally download a movie right now than to buy it with the closed off, confusing, and restrictive systems currently in place, including iTunes.

        As a business model for the future, figure out how to distribute your content online so that it is easier to buy than pirate (and this means complete portability for the file) an people will buy. Emusic, Amazon MP3, and iTunes unrestricted prove this.

  6. One more thing — Net Neutrality is NOT a privacy issue, I went there because you did in your previous comment, but net neutrality is about regulating the flow of data, to stop certain kinds of data from coming to you even if you request it. The method of determining that violates privacy and that is one way to fight it (and it has been held up in the past — advertisers aren’t allowed to mine your web cookies and other data to target you as an individual without your permission. In fact, there are laws against advertisers even emailing you without your permission (CAN-SPAM). Hasn’t stopped illegal spam though, has it? That’s because only the above board marketers follow the law, and the spammers use technology to get around it.

    Net Neutrality is about controlling which content providers get access to Comcast subscribers and that is terrible for entrepreneurs, for indies, and for consumers. What happens when Comcast blocks the main channel for people to legally stream your movie because the studio refuses to pay Comcast a premium to allow their subscribers to access that particular service?

    Don’t throw the baby out with the bathwater. If you want to argue that the MPAA should be allwed to monitor our internet usage to look for pirates then do that, but don’t conflate it with net neutrality wich goes way beyond simply stopping pirates and has negative long term affects for many industries, not just movies and music.

  7. […] Bay a giant lawless open sea from which to steal content from filmmakers (read my previous ranting blog post for a longer […]

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