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Investigation | The Pirate in All of Us: The Digital Sin Nearly Everyone Commits

Photo of Eric Kohn By Eric Kohn | Indiewire October 29, 2010 at 3:55AM

In the current era of media consumption, movie piracy is the digital sin that everyone commits. Even if a few pure souls never give into the lure of procuring unlicensed content from the web, they have friends that do. Regularly.
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In the current era of media consumption, movie piracy is the digital sin that everyone commits. Even if a few pure souls never give into the lure of procuring unlicensed content from the web, they have friends that do. Regularly.

While millions of viewers worldwide scour the Internet for openly circulated, often shoddy versions of new releases, the debate about the morality of that activity has branched out to the furthest reaches of film culture. Just this month, a heated debate flared up on the avant-garde listserv Frameworks about the merits of UbuWeb, a website containing hundreds of experimental works, including streaming videos of many films unavailable anywhere else. Since launching in 1996, UbuWeb (usually just called Ubu) has gained prominence in academic circles for making certain rarities easily accessible. However, the site freely posts materials without always seeking the permission of its owners, and though it removes videos upon request, some people deem the entire operation illegitimate. One Frameworks contributor called Ubu's modus operandi "disrespectful"; others eloquently rose to its defense.

Eventually, founder Kenneth Goldsmith posted a detailed response on the site. "If we had to ask permission, we wouldn't exist," he wrote. "Because we have no money, we don't ask permission. Asking permission always involves paperwork, negotiations, lawyers, and bank accounts. Yuk." Confessing that the approach was "the wrong way," Goldsmith nevertheless argued, "we've been able to pretty much overnight build an archive that's made publicly accessible for free of charge to anyone."

The curated offerings on Ubu are indeed quite rich, comprising a diverse archive of historically significant cinema ranging from a classic Dadaist achievement of Marcel Duchamp to a quartet of films by Marina Abramoviç. That's not enough to please the whole field. "These opt-out sites are wrong for many reasons," said Dennis Doros, co-founder of Milestone Films and an active member of the archival community. "They assume that since they make these films available for free, it isn't hurting anyone. On the contrary, with the market so tight these days, many independent films are bypassed by distributors when we see they are so readily available." The bad quality doesn't help. "People judge films by their experience," Doros said. "Seeing them in such bad visual and audio quality really does prejudice their perception of a film. The audience may not be willing to take a chance when the film does become legally available."

Goldsmith remains unperturbed by the grumblings. "Those comments are very natural," he said. "These changes must be challenging for the medium of film, which is so gorgeous in its optimal state." Goldsmith takes an idealistic stance in response to complaints about video quality. "The crummy copies on Ubu hopefully drive folks to pay for proper resolution and distribution from proper distributors," he said.

The micro-feud surrounding Ubu sits on a vastly different plane from the piracy issues plaguing Hollywood. Yet the dialogue showcases a continual unease throughout every facet of the industry about the availability of movies on the Internet, particularly when they cost nothing. With piracy more popular than ever, many insiders have begun expressing a growing fear that the movie business will face the bleak fate that met the recording industry of America, which lost millions of dollars while vainly attempting to clamp down on illegal downloads by suing fans. Avant-garde filmmakers usually don't have millions of dollars at stake, which is partly why sites like UbuWeb have managed to flourish. None of that placates a seasoned distributor like Doros. "We don't have the resources to combat illegal sites," he said. "When it's on our level, individual filmmakers and producers get hurt."

Movie piracy is almost as old as the medium itself. French filmmaker Georges Méliès, a special effects pioneer, suffered major financial strain when his famous 1902 sci-fi effort "A Trip to the Moon" made the rounds in bootleg form. (It was circulated by Thomas Edison, among others.) Back then, the individual frames bearing watermarks that connoted studio ownership could be easily clipped out. Today, advanced technology employed by studios makes it easy to locate video content illegally ripped from DVDs, but the millions of torrents regularly shared on peer-to-peer sites easily slip out of sight. With sites like The Pirate Bay and isoHunt, users create the network, which means the audience is essentially the distributor. It's easier to chase down someone who downloaded a movie than to figure out how it got there in the first place.

A scene from Kathryn Bigelow's "The Hurt Locker."


As a result, indie companies irked by piracy have gone after regular denizens in the habit of downloading movies. In May, the production company behind "The Hurt Locker" filed suit against a whopping 50,000 people for downloading the Oscar-winning movie, which barely made more than $16 million at the box office despite its awards season stamp of approval. (Last month, a South Dakota judge denied the producers' request to obtain the names of alleged downloaders accused of using an Internet service provider based there, but the vast network of lawsuits continues.)

Voltage Pictures, the production company behind "The Hurt Locker," is one of many indie studios employing the services of a man named Thomas Dunlap, a lawyer at the Washington D.C.-based lawfirm Dunlap, Grubb & Weaver. His first client was the much-derided genre filmmaker Uwe Boll, but after trips to Cannes and the American Film Market, Dunlap found many other companies interested in joining the pursuit. He says the majority of people approached about illegal downloads agree to pay a $1,500 settlement, and likes to point out that within a week of media reports surrounding the "Hurt Locker" lawsuits, torrent downloads of the movie dropped eighty percent. "Most people know it's not right to download something for free," he said, echoing his clients' frustrations: "The smaller film studios aren't flush with money. We get tons of requests each week, but unless there's a high level of infringement, there isn't much we can do."

Of course, Dunlap himself has apparently struck gold, tapping into a perceived frustration shared by many studios and giving them a way to vent. "Unless downloading goes away, it looks like this will go on indefinitely," he said, sounding energized and maybe a little enthusiastic about the possibility. Some pundits have cried foul, pointing out an unnecessary victimization of average Joes simply taking advantage of a distribution mechanism readily available to them. "We're concerned that some of these 'copyright trolls' are gaming the legal system," said Rebecca Jeschke, a spokesperson for the Electronic Frontier Foundation. "They're cutting corners to make a profit without concern for folks who might be trapped in an unfair lawsuit."

Some studios have embarked on a more advanced response. "We realize education is a huge piece of the puzzle to broaden awareness and understanding of digital theft," said Vicki Solomon, the senior vice president of anti-piracy and theatrical distribution for Sony's legal affairs group. According to Solomon, piracy has become increasingly problematic for films in Sony Pictures Classics's library, but "it affects everyone in this business. Billions of dollars are lost each year to digital theft."

Producers involved in prosecuting downloaders also emphasize the big picture. "For me, it's a global issue," explained Barry Sisson, a producer of "The Station Agent" and "Familiar Strangers" and whose company, Cavalier Films, hired Dunlap's firm. "When it becomes socially acceptable to steal the art we create, we run the risk of losing our industry." He first became interested in suing downloaders after encountering filmmakers at Sundance with blasé outlooks on piracy. "Some of them said they didn't care if people stole their movies," he said. "They said that was part of the world and we needed to embrace it. Then I asked if they thought it could destroy the industry. Even if you're not an evil capitalist, you deserve to be rewarded for your art." Sisson has no sympathy for torrent users. "The only reason they do it is because it has become socially acceptable," he said. "They don't even think about it as stealing. I think they should be tracked down as thieves."

But doesn't "they" mean, you know, everyone?

According to official figures, twenty-four hours of video are uploaded to YouTube every minute. In other words, it would take about a hundred years to watch a day's worth of new videos back-to-back. Putting things in context for movie buffs, YouTube spokesperson Chris Dale calculates those figures out to 150,000 ninety-minute movies posted each week. "We can't possibly police the site," he said. "If we had a million employees, it still wouldn't be enough." YouTube users can't upload videos longer than fifteen minutes, but that doesn't stop people from posting movies in bits and pieces. To catch these and other infringements, the site employs a sophisticated content ID software that it initially rolled out in 2007. The software automatically flags unlicensed content so the owner can immediately respond, a system that many users find inconvenient, especially those operating under the assumption that they're protected by fair use.

Unlike the chaotic realm of torrents, though, YouTube presents the opportunity for copyright holders to take control of their works when they appear on the site, rather than lashing out at individual users. One of the more famous cases was the festive "JK Wedding Entrance Dance," an amateur video posted in 2009 that featured Chris Brown's year-old single "Forever" as a wedding march. Rather than take down the video, which went viral in less than two days, Sony Music Entertainment instead chose to overlay an advertisement on top of the video urging viewers to buy the single. Within weeks, "Forever" became the fourth most-downloaded track on Amazon and the fifth on iTunes. "That's an example of a content owner wanting to be forward-thinking," said Dale. "They understood that videos are sometimes uploaded without the intention of violating a copyright."

Some studios have tried similar tactics. Lionsgate, which partnered with YouTube in 2008, automatically claims any clip of its AMC show "Mad Men" that runs under two minutes and basically monetizes it. "I would argue that the most progressive content owners are the ones who say they appreciate users uploading clips from a promotional perspective," said Dale.

A scene from AMC's "Mad Men."

Sometimes it's not so easy for users to prove the promotional value of the footage they post. The site notoriously disregards claims about constitutional rights. "There's something very Cold War/Eastern bloc about YouTube's interactions with its users," said film critic and filmmaker Matt Zoller Seitz, whose video essays analyze scenes from other films. He cited one particularly infuriating occasion when the site ignored his e-mails -- after blocking a video essay on "The Hurt Locker," of all things. (The completed essay, co-authored by Michael Joshua Rowin, currently lives at BlipTV.)

Seitz bought a bootleg version of the film in Chinatown when the studio refused to make screener copies available to press, and told Bigelow about it when he had the opportunity to interview her. "She laughed and said, 'That's awesome,'" Seitz recalled. "It's been my experience that filmmakers never mind. Even if it was illegal to do what I do -- and it's actually not, despite what entertainment companies want us to believe -- the filmmakers would be so excited that anybody gave a damn about their work and took it seriously that I doubt they'd object."

Along with the filmmakers willing to accept piracy as free publicity, some working on the cheap have successfully exploited the bootlegging trend. One of the better known examples: After building up a fan base for his 2007 animated feature "We are the Strange," which played at Sundance, California-based animator Mike Belmont released the movie on Bittorrent and posted it to YouTube, relying on fans to buy merchandise and DVDs.

"I don't think the torrents for 'We are the Strange' were very popular since it was on YouTube," said Belmont. "It was me saying, 'I have confidence that the films I'm creating are unique and valuable, so even if people are able to view them for free, they will still purchase the DVD,' and they did. I still get DVD royalty checks every month to this day." He said he was "pretty flattered" when a major torrent group released his film. "That means more today than a paltry three-city theatrical release in the U.S.," he said. Belmont plans to release his next animated feature the same way in 2011. "I'm going micro again, as it's the only way for me," he said. "Filmmakers have been complaining about lack of control forever. If you can't afford to release your film for free, you spent too much money on it."

Belmont's assertions sound less radical with each passing year. The idea of a "gift economy" has been traced back to the Stone Age, but current industry standards run counter to its structure. Only filmmakers willing to risk working outside the box (along with Belmont's film, Nina Paley's free digital release of "Sita Sings the Blues" in 2009 provides another strong example) can mess around with the prospects of this model.

For most of the industry, the war on piracy continues, but the pirates seem unlikely to relinquish their habits anytime soon. Just last week, the website TorrentFreak posted the ten most-downloaded films from BitTorrent. The top three -- "Wall Street: Money Never Sleeps," "Resident Evil: Afterlife," and "Red" -- are still in theaters, along with "The Social Network," which took spot number nine.

The studios behind these mega-marketed blockbusters probably don't have much to worry about, but films in extremely limited release face a separate challenge. When Milestone released its superb restoration of Charles Burnett's little-seen "Killer of Sheep" in 2008, Doros says he found more than 80,000 illegal downloads of the movie on a handful of sites. "I think everybody in the business will agree that home movie sales have finally felt the same impact from illegal torrent and streaming sites as the music business felt during the Napster era," he said, referring to the initial download craze at the beginning of the decade.

If anything, then, the massive library of older films posted by various organizations on Archive.org (otherwise known as the Internet Archive) suggests a healthier model in which rights owners play an active role in deciding when their content appears. (On a much larger scale, that's exactly what legal streaming sites like YouTube, Hulu, Dailymotion, MUBI, and Snagfilms do on a regular basis.) One step safer than Ubu, Archive.org never posts something without permission. Film collector Rick Prelinger began uploading his library to Archive.org ten years ago and touts its value. "Archive.org isn't like the torrent trackers that offer everything," he said. "The world of film and video distribution has become an anthill. There's too much media being made and far too many makers. We need to do everything we can to get our work seen."

Meanwhile, audiences will keep watching -- by whatever means they can.

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