April 2, 2012

Abhorrent Torrent: Weathering Film Piracy in Stormy Times

From Josh Fox's <em>Gasland</em>, a favorite for illegal downloads because it addresses a controversial issue. Courtesy of Josh Fox

"Ahoy, hornswaggling pirates! Get me film booty out of yer bung hole or you'll sleep in Davy Jones' Locker." That's about the best threat most independent filmmakers think they can make against illegal film pirates.

I have just finished my monthly task of Googling myself, and have found over 11 million hits.  Okay, 13,000 hits for me, 11 million for my documentary See What I'm Saying: The Deaf Entertainers Documentary. This is not ego-surfing or a vanity search, but rather a seek-and-destroy missive for my distributor to send cease-and-desist letters to the dozens of illegal torrent files, bittorrents, streaming sites and unauthorized sellers. Considering that we're a tiny independent documentary that was self-distributed in theaters, I'm as amazed as I am annoyed.

Even with my intense dislike of pirates (except for Johnny Depp and Captain Morgan), the misappropriated Stop Online Piracy Act (SOPA) and its sister bill, the Protect Intellectual Property Act (PIPA), are not the way to go. Thankfully, Congress shelved the bills by press time of this story. SOPA would not have achieved its intended goals to stop illegal use of content, but would have wreaked havoc on the Internet by shutting down sites that had unauthorized content. The concepts of SOPA and PIPA are as antiquated as trying to police copy machines from duplicating copyrighted images.

Massive online protests against the antipiracy bills sent a strong message to Congress that the majority of folks are against these bills. This helped sway a few co-sponsors of the bills to drop their support, including Sen. Marco Rubio (R-Fla.) and Reps. Lee Terry (R-Neb.) and Ben Quayle (R-Ariz.) Three advisers to President Barack Obama have major concerns about the bills. "Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small," said the officials, including White House cyber-security czar Howard Schmidt. 

Even though its construct is faulty, SOPA is an attempt to stop illegal use of protected content. "Copyright infringement is a huge problem in the [entertainment] industry," says Susan Margolin, co-president of New Video, "And it's only growing in reach. It's a problem we have to deal with every day."

New Video distributes documentaries such as Gasland, Autism: The Musical and The Wild Parrots of Telegraph Hill, as well as my documentary See What I'm Saying: The Deaf Entertainers Documentary. Tracking down film pirates is a full-time job for the legal team at New Video, and takes tremendous effort. "We have a good response rate from our cease-and-desist letters," Margolin explains. "But when you take one site down, others pop up. It's like a game of Whack-A-Mole."

Deaf entertainers featured in Hillari Scarl's <em>See What I'm Saying</em>, which has been pirated online

Sommer Hixson, the director of media relations at New Video, notices that the illegal torrent sites come in waves. "There are specific times when more [illegal activity] comes in than usual for a certain title," she says. "It's like a fire that spreads when a film becomes digitally available." Margolin adds that a film like Gasland will become a favorite for illegal downloads when the subject is in the news, especially when the film covers a controversial subject such as fracking. Distribution consultant Peter Broderick once said, "I'd be offended if my film wasn't pirated," implying that a film has to be pretty far off the radar for pirates to ignore it. Both Margolin and Hixson are unsure how much this illegal activity eats into sales. Even though they acknowledge that torrents help create awareness for a film, it sometimes hurts legitimate promotion, which can diminish sales.

Margolin doesn't look too fondly on these pirates. "Filmmakers work hard to create their works and should receive revenue. If a filmmaker chooses to share their work for free, then that should be their choice, not someone else's."

My monthly Google search unearthed strange amalgamations of my work, including an early draft of my film's poster and a free download on a "documentary film review" site that includes other documentaries such as Restrepo, Babies and Joan Rivers: A Piece of Work. Another illegal site paired my PG-13 film with Swedish porn. Nice.

The entertainment industry estimates it loses billions of dollars in revenue, royalties, jobs and opportunities each year due to piracy. On January 20, 2012, a day after civil protests over SOPA and PIPA were in full swing with various Internet blackouts, the FBI seized Megaupload, an international enterprise based on Internet piracy. Seven people connected with Megaupload were charged. They have been accused of causing $500 million in damages to copyright owners and of making $175 million by selling ads and premium subscriptions.

Internet piracy is a growing trend that has plagued the entertainment industry for years. Torrentfreak.com reported that Star Trek was the highest-pirated movie in 2009 with over 10 million downloads and BBC Newsbeat reported that illegal film downloads in the United Kingdom were up 30 percent in 2010.

Steve Zidek, who has worked as the director of intelligence for the Motion Picture Association of America (MPAA) and as an intelligence analyst and staff officer at the NATO Office of the Secretary of Defense, states, "It takes a long time to investigate each suspect, and between 18 months and three years to prosecute these criminals. We have to use our resources carefully and go after the big guys first." He went on to explain that piracy is very reactive and that it is hard to get ahead of the game. "The IRC [Internet Relay Chat] is a way that thieves coordinate content on offline discussion channels and participate in illegal fire-sharing." In something that could serve as a film storyline itself, US intelligence spies pose as users to infiltrate groups, gather intelligence and sway turncoats to become informants. Zidek estimates that an average of 20 to 30 individuals in the United States and approximately 50 international pirates are prosecuted each year.

This only represents about 10 percent of all film pirates that are out there. Better progress has been made on camcorders that illegally record films in theaters. This criminal activity now has an 80 percent prosecution rate. Forensic evidence such as watermarking films, infrared technology and good intelligence has knocked down 60 percent of all camcorder piracy, which is a problem in many countries. The New York Times reports that France has implemented the "Création et Internet," or a three strikes policy, which states that any customer who receives three infractions connected with illegal downloading will be disconnected from the Internet. Unfortunately, this drives the most determined thieves to go deeper and darker with assumed identities on new sites.

So what can be done? Margolin suggests that filmmakers and their distributors should be vigilant. "Check Google daily, especially the first six months of a film's release, send out cease-and-desist letters and follow up on letters that were sent." She estimates that one-third of all of New Video's cease-and-desist letters receive confirmation of illegal content being deleted or dismantled.

Steve Zidek, the president of Genufi, a company that provides content protection and management, recommends controlling your infrastructure from the beginning with new distribution models to safeguard against illegal downloading. Craig Winter, the CEO of Genufi, thinks filmmakers, studios and distributors should be more positive. "Treat piracy as an opportunity for incentives and team integration," encourages Winter. "Creative, business, marketing and technology executives should be working together on strategies and cross-promotional angles. Figure out what you can do that the pirates can't."

Even though I hate strangers who stream my entire movie for free on unauthorized sites, I am flattered when my copyrighted images, such as my movie poster, are used for promoting events in the deaf community. Even though I would ideally like to give formal permission for every use, the time and expense it would take to police my work is simply not feasible. Instead, I offer incentives for viewers such as the opportunity to meet the subjects in my film and for buyers to go through the proper channels to license the film, such as sending our teacher's study guide and educational supplemental DVD to accompany the film for educational licenses.

 "Don't try to get [your film] off the Internet. Monetize it on the Internet," says Winter. "Most torrent customers are just consumers looking for a deal. Give them one that the pirates can't match."

Many distributors complain that they can't compete with free. "How do you know?" challenges Winter. "That's a myth. Give fans exclusive access to celebrities in your film, a private chat session with the director or a free dinner at a local restaurant. This encourages consumers to do the right thing by buying legitimately and coming out ahead with perks. The biggest issue in the industry is not understanding how the Internet works."

Winter notes that having a strong online presence pushes piracy to the fringe. His suggestions include buying keywords such as your film name followed by "torrent" to redirect traffic to your site, offering film member benefits, partnering with businesses to offer discounts in a bundling package or providing privileges for fans who buy or stream through legitimate means. Both Winter and Zidek encourage bundling and cross-marketing efforts, such as getting a coupon to local or chain businesses with every movie ticket or DVD bought. This model takes advantage of sales/conversion rate analytics (how many visitors translate into buying customers) and sales metrics.

While filmmakers, as artists, may be averse to this sort of technical jargon, if we want to stay competitive with our work, it behooves us to learn about the logistics of downloading and marketing, or else hire a company such as GenuFi to do the work.

"US District Attorney Preet Bhara said in a statement following a June 2010 federal crackdown on nine websites that had been making movies available illegally, "If your business model is movie piracy, your story will not have a happy ending."

 

Hilari Scarl is a director/producer living in Los Angeles. Contact her at www.hilariscarl.com.

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