People just keep creating stuff -- books, movies, music, you name it... so it's (more than) a full-time job to keep up with all the cool new stuff. How do we classify music into hip-hop, heavy metal or Krautrock? What can we learn from mapping all these seemingly separate media genres? People and machines are working together to cobble together categorization systems that try to keep up with the flood of new content. Here are just a few examples.
Try as I might, I can’t shake the feeling that 2014 is the year we lose the Web. The W3C push for DRM in all browsers is going to ensure that all interfaces built in HTML5 (which will be pretty much everything) will be opaque to users, and it will be illegal to report on security flaws in them (because reporting a security flaw in DRM exposes you to risk of prosecution for making a circumvention device), so they will be riddled with holes that creeps, RATters, spooks, authoritarians and crooks will be able to use to take over your computer and fuck you in every possible way.
While I am quite frequently in agreement with Cory, I'm at least marginally more optimistic than he is about the eventual result here. Putting DRM into HTML is monumentally stupid, and he's right that it will create massive security and legal liabilities for almost everyone. But the history of DRM has shown, over and over again, that it gets broken to bits in minutes once released, and even if there is legal liability involved in such things, it always happens. It will happen again here, and there will be "patches" made pretty quickly. It will be a tremendous waste of resources on pretty much everyone's part, but I'm not convinced that it will be effective in making things that much more unsafe.
That said, the larger point that Cory raises reminds me of the key point that I'm still at a loss to understand here. Why the W3C and others who support this proposal seem to be so willing to kowtow to Hollywood on this. Yes, as Cory explains, it's really Netflix driving the bus here, but it's the Hollywood studios that are out there telling Netflix they need DRM:
And it’s basically all being driven by Netflix. Everyone in the browser world is convinced that not supporting Netflix will lead to total marginalization, and Netflix demands that computers be designed to keep secrets from, and disobey, their owners (so that you can’t save streams to disk in the clear).
But here's the thing: the internet wasn't built to be the next broadcast medium for big Hollywood blockbusters. It was built as a computing and communications platform. That's what made it special and it's why so many people have flocked to it. It's why it's "the internet." Hollywood came late to the party and has been trying to redesign the web in its own image ever since -- and that means locking it down so it's more about a broadcasting model, in which the "professionals" in Hollywood get to determine what you, the peons, get to do.
But there's a reason Hollywood so desperately wants to control the internet: because all the people are here. And that's an important point. Hollywood (and, by extension, Netflix) need the internet much more than the internet needs Hollywood. Sure, the Hollywood folks like to claim that the reason the internet is so popular is because of professional content, but there's little to no evidence to support that. Yes, people like to have access to that content, but it's never been the driving force for why people want to be online.
And we've seen this game before. The record labels demanded DRM from online music stores for years... until they realized that this was a complete waste of time and money for no benefit. And they finally agreed to what the public wanted: no DRM. There's no reason for the W3C to make this same mistake. The studios and Netflix can resist all they want. They can stick with their proprietary Silverlight players no matter how annoying and technologically backwards they might be. But, in the end, they'll come around to better, more open technologies like HTML5 because that's where the people are and that's what the people want.
So, the W3C has a serious choice to make here, and it's been betting on the wrong horse. Sure, Netflix will resist HTML5 for a while. Because that's what it feels it needs to do. But it won't last. Because it can't. History has shown over and over again that companies will eventually follow the will of the public and it will happen again here. There's no reason to go through a stupid, shortsighted and wasteful process of DRMing everything, only to see it cracked and broken within hours of being launched. Just drop the DRM, focus on building a system that better provides what the public wants... and Hollywood and Netflix will get there eventually as well.
The trick apparently -- and I know, this is crazy -- is to Make Good Movies. Shocking, I know.
"Going down the list of studios, they all had great movies that kept people coming back to the theaters all year long," said Nikki Rocco, president of distribution at Universal
What a concept.
Of course, some will argue that the box office is only a part of the industry's revenue -- and that's absolutely true. Of course, to argue about declines in home video revenue is pretty disingenuous since the industry fought incredibly hard to block that revenue stream from ever existing. Besides, as with the box office, we're seeing that when studios (gasp!) produce good content and make it easy and convenient to watch at home for a reasonable price and without painful restrictions, audiences seem to jump on board.
It's almost as if... the problem has never been "piracy" but the fact that the studios have spent years resisting providing consumers with good alternatives...
We've discussed many times before how, in the digital age, you no longer really seem to own what you've "bought." Instead, you're getting a temporary license, and at times that means that the copyright holder and partners can remove it. In a story making the rounds this week, it appears that Amazon pulled the film Prep and Landing 2 just in time for Christmas! The issue came up when Bill Jackson settled down to watch the video -- which he "bought" last year -- with his two kids, aged two and eight. It didn't work and he contacted Amazon to find out what was up. Despite the fact that when he paid the $3, he was told it was to allow him to "watch and re-watch as often as you like" Amazon told him that Disney had asked them to pull it, and they did so:
Amazon has explained to me that Disney can pull their content at any time and 'at this time they've pulled that show for exclusivity on their own channel.' In other words, Amazon sold me a Christmas special my kids can't watch during the run up to Christmas. It'll be available in July though!"
Amazon did give him a $25 credit as an apology, and then when the story started making news, Amazon changed its story claiming it was something else:
Amazon blamed the removal on "a temporary issue with some of our catalog data" which it says has been fixed, adding that "customers should never lose access to their Amazon Instant Video purchases."
"Should" never lose access is quite different from "will" never lose access. Just the fact that Amazon has the power to take back what you've bought should be a pretty big concern for those who think that they're actually buying what they've been told. As some have noted, Amazon's terms of service appear to give it the right to do exactly what the original version described:
Availability of Purchased Digital Content. Purchased Digital Content will generally continue to be available to you for download or streaming from the Service, as applicable, but may become unavailable due to potential content provider licensing restrictions and for other reasons, and Amazon will not be liable to you if Purchased Digital Content becomes unavailable for further download or streaming.
While it is true that buyers can download copies and this only impacted the streaming versions, it still seems rather troubling that people who thought they were buying something found out that they weren't. This is one of the many reasons why people are so concerned about these kinds of offerings. They know that you're no longer really "buying" anything, but getting a (very) limited license.
Just last month, we talked about two studies released by Hollywood. The first was one from the MPAA itself, which (as happens all too often) focused heavily on blaming Google for its supposed problems in monetizing the online world. It used some highly questionable methodology to suggest that people doing searches ended up downloading unauthorized flicks. This was released in coordination with a Congressional hearing on copyright, in which the message pushed by the MPAA's sister organization, the RIAA, was "what we really need is for Google to help us return to our former glory." Oddly, that same day, NBC Universal released the second version of its own "piracy" study, which aimed to show how "big" the problem was. However, as we noted with both this and the original version of that study, when you look at the data, it shows pretty clearly that the "problem" is one that Hollywood has made for itself. That is, when good, convenient and reasonably priced offerings hit the market, an awful lot of video watching moved to those authorized offerings. It's when those offerings were missing entirely that the amount of unauthorized access seemed to shoot up.
Inspired, in part, by the thinking about these studies and claims, Jerry Brito from the Mercatus Center teamed up with Eli Dourado and Matt Sherman to launch a new site called piracydata.org, which attempts to collect (and visualize and -- most importantly -- make available) data that shows whether or not the most "pirated" works each week are available for legal access. It's still at a small sample size so far, but the initial results don't speak well to Hollywood's claims that it's adapted to the digital era.
The Walking Dead was pirated 500,000 times within 16 hours despite the fact that it is available to stream for free for the next 27 days on AMC's website and distributed in 125 countries around the world the day after it aired. Our industry is working hard to bring content to audiences when they want it, where they want it, but content theft is a complex problem that requires comprehensive, voluntary solutions from all stakeholders involved.
Now, if you're not the MPAA and so tied up and confused by unauthorized access, you might look at that information and realize that putting it on AMC's website was probably the mistake. That's not where people look for stuff these days. Yes, they made it free, but they didn't make it convenient, meaning they didn't put it in a form that some portion of consumers want, and watching it directly on AMC's website appears to take a large group out of their natural flow. That's something that Hollywood could learn from, but it never does. It just points the blame finger.
However, the data continues to be fairly overwhelming that the "piracy problem" is a problem of Hollywood's own making. It could solve it if it wanted to, by focusing on making more content more widely available in more convenient ways and prices. Yet, instead, it wants to blame everyone else and order them around to "fix" a problem of it's own making.
This should go without saying at this point, but as government continually try to censor stuff, the internet just kind of mocks them. New Zealand censors have apparently decided that the horror flick Maniac -- a Cannes Film Festival selection that is starring Elijah Wood -- is just too damn scary for New Zealand sensibilities, and banned it. However, as TorrentFreak notes, banning the film seems to have only resulted in it getting downloaded a ridiculous amount in New Zealand. Of course, if New Zealand censors hadn't been so squeamish and actually allowed the movie to play in the country, the filmmakers would actually be making money. Instead, they get none of it. Of course, you also have to wonder how much extra publicity New Zealand censors gave to this movie by declaring that it was too scary for Kiwis to watch.
For almost a decade, we've been dealing with variations on the question an executive from NBC Universal once asked me during a panel discussion about copyright: "But how will we keep being able to make $200 million movies?" As we've explained over and over in the years since, that's a ridiculous question. Would anyone in the tech industry ever ask "but how will we continue to make our $5,000 computers?" Of course not, because the focus is on making something profitable that's good and serves a need. Focusing on the cost is exactly the wrong way to go about things. That doesn't mean that no movies should cost $200 million. If you can come up with a movie that can make more than that in response, then sure. But Hollywood seems built not around figuring out how to make something profitable, but by following a formula. And part of that formula is "every summer we release some big budget, action-packed ~$200 million films that we call blockbusters" and that's the focus.
Except, when you follow a formula that says "we do this because this is what we do" rather than "how can we create something that people will like and will bring in more money than we spend?" (Yes, I recognize this is simplifying things, like skipping over Hollywood accounting, where films are designed to "lose money" even as the studios make money on them).
"That's the big danger, and there's eventually going to be an implosion – or a big meltdown," Spielberg said. "There's going to be an implosion where three or four or maybe even a half-dozen megabudget movies are going to go crashing into the ground, and that's going to change the paradigm."
With extremely weak domestic ticket sales over the weekend for “R.I.P.D.” and “Turbo,” Hollywood has now sustained six big-budget duds since May 1, the start of the film industry’s high-stakes summer season. The other failing movies have been “After Earth,” “White House Down,” “Pacific Rim” and “The Lone Ranger.”
Each of those films was well over $100 million to make, with a few breaking that magical $200 million. A big part of the problem? These movies are all just formulaic retreads of the past -- playing on the stupid idea that "well, we need a $200 million movie, so how do we make one?"
Studios have also tried to sell most of these as “original,” which in Hollywood-speak means not a sequel or a remake. In reality, movie companies have largely just reassembled familiar parts. “Pacific Rim,” which featured giant robots, seemed to share DNA with “Transformers.” “The Lone Ranger” was “Pirates of the Caribbean” in Old West drag. “R.I.P.D.” was “Men in Black” lite.
Meanwhile, the movies that are doing well are the lower budget films.
Moviegoers are pushing back. The No. 1 movie in North America over the weekend was “The Conjuring,” a period haunted house film that cost Warner Brothers $20 million to make and received stellar reviews. It took in $41.5 million, according to box office estimates compiled by Hollywood.com.
Of course, Hollywood folks will point out that you never really know how a movie is going to do, and it's something of a crapshoot. Indeed, but in that case aren't you better off testing your luck with 10 $20 million movies rather than dumping $200 million all into one boring retread?
Again, the idea is not that there should never be $200 million movies -- but it's long past the time that Hollywood focused on "how to make $200 million movies" which leads to an awful lot of formulaic stuff that the public appears to be sick of watching. Instead, it's time to focus on how to make good profitable movies. That usually doesn't involve following a formula, but rather finding quality content, and figuring out how to make it efficiently, not how to keep ratcheting up the budget just to fit it into some pigeonhole about what a "summer blockbuster" has to look like.
Last year, we wrote about one of the more ridiculous copyright claims we'd seen to date (which is saying quite a lot), in which the estate of author William Faulkner sued Sony Pictures over the Woody Allen movie Midnight in Paris. The issue? Owen Wilson's character, at one point, misquotes (with credit) a Faulkner quote. Here's how the estate itself described it in the lawsuit:
In describing his experiences, Pender speaks the following lines (the "Infringing Quote"): "The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."
The Infringing Quote is taken from a passage in the William Faulkner book "Requiem for a Nun" ("the Book"), where it reads: "The past is never dead. It's not even past." ("the Original Quote").
Yes, they sued, and claimed that having that quote in the movie infringed on Faulkner's copyright. Thankfully, the court wasted little time disabusing the estate of its rather laughable view of copyright law, doing a fair use analysis, and making it clear that this use qualifies as fair use. At points, the judge is clearly flabbergasted that the Faulkner estate even brought such a ridiculous lawsuit:
The court is highly doubtful that any relevant markets have been harmed by the use in
Midnight. How Hollywood's flattering and artful use of literary allusion is a point of litigation,
not celebration, is beyond this court's comprehension. The court, in its appreciation for both
William Faulkner as well as the homage paid him in Woody Allen's film, is more likely to
suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any
effect at all.
Similarly, the court found it to be obviously transformative:
These factors coupled with the miniscule amount borrowed tip the scales in such heavy
favor of transformative use that it diminishes the significance of considerations such as
commercial use that would tip to the detriment of fair use. It is difficult to fathom that Sony
somehow sought some substantial commercial benefit by infringing on copyrighted material for
no more than eight seconds in a ninety minute film. Likewise, it is evident that this eight second
clip serves as a thematic catharsis or apex in plot to neither Requiem nor Midnight.
Unfortunately, there is one problematic aspect to the ruling. Sony asked for the case to be dismissed both because of fair use and because of de minimis use -- which is a separate legal doctrine, which suggests tiny snippets can be used without permission, having nothing to do with fair use. This has some importance, because of the (incorrect, in my opinion) argument made by some courts, that fair use is merely "a defense" to infringement, rather than a right. This makes little sense if you read the actual statute but it is how some courts have interpreted fair use.
Unfortunately, the court refuses to do an analysis on de minimis use separate from fair use -- suggesting that de minimis use only counts as a part of fair use. This is not how it's supposed to be. De minimis and fair use are two separate issues, but the court treats de minimis as a part of the fair use analysis:
Both parties have posited non-circuit authority for the doctrine of de minimis non curat
lex and its applicability to copyright infringement. The Supreme Court states that “the venerable
maxim de minimis non curat lex (“the law cares not for trifles”) is part of the established
background of legal principles against which all enactments are adopted, and which all
enactments (absent contrary indication) are deemed to accept.” ....
The parties agree that the doctrine is part of the initial inquiry of whether or not the use is
infringement in the first instance, as opposed to the fair use inquiry, which is an affirmative
defense. The Fifth Circuit recognizes the de minimis doctrine in the context of infringement
cases, but it has not specifically enunciated its proper place in the infringement analysis....
To conclude this preliminary discussion, the court considers both the substantial
similarity and de minimis analyses in this case to be fundamentally related, and wholly
encompassed within the fair use affirmative defense. Therefore, the court will utilize the fair use
factors in making a determination on the de minimis and substantial similarity issues. Moreover,
this circuit's precedent addressing the use of a de minimis analysis in copyright cases is largely
undeveloped, and the court is reluctant to address it, except within the context of Sony's
affirmative defense, fair use.
I can understand why the court chose to do this. Since it has no reason to make it clear that a de minimis analysis can or should be separate from a fair use analysis, it doesn't bother. It's just unfortunate, since it would be nice to have another ruling that makes it clear that de minimis use is more than just a defense, and goes well beyond the limitations of fair use.
Not this again. Back in 2011, we first discussed why it was silly that some people got upset that someone rich and famous would use Kickstarter, as if the platform was only allowed for unknown artists. That was about Colin Hanks, the son of Tom Hanks, financing a documentary via the site. Since that time, the argument has popped up a few more times, including when Amanda Palmer used the site, when Bjork tried to use the site and when the Veronica Mars movie was funded via the site. Most recently, it's been aimed at quirky actor/filmmaker Zach Braff for his Kickstarter project, called Wish I Was Here. Braff set a goal of $2 million, which was raised very quickly.
And that's when some people got angry. Just as before. But it's a small group of people. There are at least 36,000 people (i.e., those who have funded the project so far) who did not get angry. Why? Because they like Braff and want to support him. I'm curious if the people who are attacking Braff for using Kickstarter ever have watched one of his TV shows or seen a movie he was in. Because, in that case, they'd be paying the same sort of thing... but most of that money would be going to a giant corporation, rather than to the actor himself. So what are they complaining about?
Frankly, he's more defensive in that video than he needs to be. He's got nothing to be defensive about. He notes, accurately, that he's long been known as someone who engages deeply via social media, especially Twitter and Reddit where Braff has been active for years. He also talks about his own obsession with Kickstarter, and how great it was to get the various updates on projects he'd funded, and how he hoped his fans would enjoy getting updates about the movie making process. And, yes, he's backed a bunch of projects himself, including the Aaron Swartz documentary.
For the life of me, I can't see a single logical argument for why people are upset about this, other than (a) they don't like Braff or (b) they're jealous of him. Neither seems like a particularly compelling reason for why Braff, or any famous person, shouldn't use the platform. The two most common arguments seem to be "he's rich and should fund it himself." But that's stupid. First off, he's probably not quite as rich as you think, and second he's made it clear over and over again that the budget is much higher than the amount he's raising and he's putting in an "ass-ton" (his quote) of his own money as well. Also, if you think that, don't fund him. No sweat off your back. For his fans who like him and want to support him, so what? The second argument is that this means he gets the money instead of some struggling filmmaker. However, as he himself has pointed out, the data suggests something entirely different:
I have something every detractor doesn’t have: the analytics. Most of the backers of my film aren’t people on Kickstarter who had $10 and were deciding where to give it, and then gave it to me instead of someone else. They came to Kickstarter because of me, because of this project. They wouldn’t have been there otherwise. In fact, a lot of people who didn't know about Kickstarter came and wound up giving money to a lot of other projects too. So for people to say, 'That’s ... up; you’re stealing money from documentaries' is just not a sensible argument.
All he's doing is the same thing we've been arguing for years is the business model of the future: connecting with fans and giving them a reason to buy. Braff has done exactly that, and has built up a huge and loyal following who are really excited about this project. As we pointed out when Amanda Palmer raised $1.2 million on Kickstarter or when Louis CK made over $1 million by selling direct off his site, the fans who are buying in aren't disturbed by how much money is being made. For the most part, they seem thrilled to be a part of something amazing.
I think that's the key thing that the detractors simply don't understand. This is about two key things: being part of an experience and a community. It's not about "a movie," but about much more than that. And, even specifically around "the movie," people should be supporting what Braff is doing, because funding it this way means that it's going to be Braff's vision for the movie, rather than a giant Hollywood studio. A few months back, Jonathan Taplin, a filmmaker and defender of the old system, told me during a debate that no real filmmaker would ever use Kickstarter. At the 40 minute mark, he goes on a condescending rant saying sarcastically that "major filmmakers" could never possibly use Kickstarter because "the average" film only raised $10,000. But the average is meaningless for something like this. Furthermore, he goes on and on about (his friend) Martin Scorcese getting to do a movie he wants, and how that would never work via Kickstarter. But we're seeing over and over again the exact opposite. When a star with a big following uses something like Kickstarter, it gives them more ability to make the movie they want without outside interference.
Now we're seeing, quite clearly, that "major filmmakers" can use Kickstarter to do interesting things, and somehow, I get the feeling that it's the same sort of people who insisted they couldn't possibly make it in the first place who are now complaining that they are...
The common refrain coming out of the MPAA and RIAA over the past few years has really focused on "jobs, jobs, jobs!" This is a message that often works with Congress. If you can convince Congress that "jobs" are at risk, they go scrambling to protect those jobs, even if the economy would be much better off with obsolete jobs going away, and better jobs taking their place. That said, the MPAA and RIAA have a long history of making up ridiculous claims about the number of people employed in their industries, as well as the number of supposed "lost jobs." So it's rather noteworthy to see that the good folks over at ZeroHedge have pointed out that, according to the Bureau of Labor Statistics (BLS), jobs in the motion picture and sound recording industries hit an all time high in December.
Funny that. I thought that they were losing jobs like crazy, and that without SOPA those jobs would just keep disappearing. Hmm...