by Content Cafe — February 25, 2021
Each month we hear from industry insiders in Australia and abroad to get their take on content piracy. Is content protection improving? How do we stop piracy? How does Australia compare to the rest of the world? These are some of the questions we'll be exploring with leaders across the content industry.
I am the CEO of CreativeFuture, a nonprofit coalition of more than 560 companies and organisations and over 260,000 creative individuals encompassing film, television, music, photography, software, and book publishing in the United States. We work closely with members of our creative communities to promote the value of creativity, expand digital access to legitimate content, and protect the fundamental right of creatives to determine how their works are seen, heard, and distributed.
As an executive, I have been at the forefront of independent film for more than three decades, including as Co-President of Paramount Classics and President of Fine Line Features. I have made and/or distributed more than 100 films, from Dirty Dancing to Mortal Kombat and Don Juan DeMarco and The Centerfold, to smaller films like Shine, Gummo, You Can Count on Me, Virgin Suicides, and Hustle & Flow.
We are in the middle of awards season here and I am a voting member of the Academy of Motion Picture Arts and Sciences, so I am knee-deep in watching potential Oscar® films right now. Some of my favourite films this year are The Outpost, Nomadland, News of the World, and The Father. But there are many noteworthy films. It’s been difficult this past year because the theaters have been closed, so films you might ordinarily have heard about are going unnoticed. This is truly unfortunate, and happily the growth of legitimate internet streaming services has helped to save the day for many films. And, as we all know, there is some truly great television!
Piracy – and in particular, streaming piracy – is without question the biggest threat facing the creative industries today. Digital piracy has the power to destroy livelihoods and shutter businesses. The U.S. motion picture industry is dominated by small businesses with 87% of entertainment companies employing fewer than 10 people. Piracy siphons the revenues that support these businesses to the tune of billions of dollars per year. A U.S. Chamber of Commerce study found that streaming piracy costs the U.S. economy at least $29.2 billion in lost revenue each year, and between 230,000 and 560,000 jobs.
And keep in mind that all this data was collected before the pandemic. Since the coronavirus outbreak, piracy has been on the rise, gutting an industry that has already been decimated by venue closures and production shutdowns.
Other than destroying jobs and decimating companies? I would say the harm it does to innovation and development. I have witnessed firsthand how piracy has undermined creatives’ ability to get their projects funded, to take risks, and to keep producing the daring, thought-provoking works that make our world so vibrant. Piracy is bad for business but it’s also terrible for our culture.
In the U.S., our biggest challenge is a badly outdated law from 1998 called the Digital Millennium Copyright Act (DMCA), which is the main reason why massive internet companies like Google and Facebook are not held accountable for the overwhelming volume of piracy occurring on their platforms.
When the DMCA was enacted in 1998, Google was in beta, and Facebook, Twitter, Instagram, and YouTube did not exist. The consumer internet was still in its infancy, and Congress wanted to make sure this new industry could flourish, so it passed laws like the DMCA, which includes safe harbors that remove platforms’ liability for infringement by their users. The DMCA, then and now, requires websites to remove infringing content when notified by the copyright owner – so long as the platforms do so in a timely fashion, they are not liable for the harm.
That sounds reasonable in theory, right? The problem is that when the DMCA was passed, internet usage levels were a bare fraction of what they are today, bandwidth was limited, networks were slow, file sizes were huge, and no one could have contemplated the mammoth need for enforcement resources that today’s internet requires.
Two decades later, all of that has changed by orders of magnitude. The creative community sends over 900 million takedown notices every year to Google alone for copyright violations. Google recently processed its 5 billionth takedown request from copyright holders. Many internet companies, both legitimate and illegitimate, have built their businesses around mass infringement – turning a blind eye to the “repeat infringers” and widespread piracy that they rely upon to drive traffic to their platforms. They treat notice-and-takedown as an annoying but acceptable “cost of doing business.”
To be fair, Congress could not have possibly envisioned that creatives would have to send nearly a billion notices a year to Google when they fashioned this law, nor expected these internet platforms to become the behemoths that they are today. But that is why the law is in urgent need of revision. Until it is updated to properly reflect the scale of our new streaming reality, piracy will remain a massive problem.
I wish I could give Australia a big hug for all you are doing to fight piracy! I will have to settle for hugging Creative Content Australia’s chairman – and my dear friend – Graham Burke the next time I see him. CCA is doing an amazing job educating audiences about the dangers of piracy not only to the creative industries but to consumers as well. And the research you do is tremendously important to groups like mine, who write obsessively about this and need all the facts and statistics we can get from other countries to help reinforce our arguments.
Your work is helped, I’m sure, by a government that seems to be prioritising this problem and the need for Big Tech accountability in general. Again, I have to give props to Graham here, who has done great work in articulating the scale of the problem to your elected officials and helping them understand the existential threat it poses to the film and television industry in Australia. Your country was also an early adopter of judicial site-blocking measures aimed at piracy sites (something still not available in the U.S.) and I have relished Australia’s ongoing, and increasingly successful, effort to force tech companies to pay for journalism shared on their platforms, since they benefit immensely from “sharing” it.
These companies should not reap the financial benefits from other people’s content when they don’t acquire a license or guard against piracy, and Australia is a leader in the fight to fix these problems.
When I was running Paramount Classics (from 1998-2005), we were aware of piracy, but not to the extent that we are today. From Hustle & Flow to a small Korean film called The Way Home, our films were being pirated. But we could do only one thing about it – make a call to the MPAA’s (now the MPA) law enforcement division to report bootleg DVDs on the street. Digital piracy using BitTorrent? It took digital theft to an entirely new level. And now streaming piracy? The damage keeps growing.
There are always thrilling innovations happening in the creative space, from VR to jaw-dropping interactive art installations. On the business side, billions of dollars are being poured into making new streaming content, which I believe is good for the creative communities in the long run – and I do not see that trend slowing down any time soon.
I am also excited about the recent passage of two big pro-copyright laws here in the U.S. The Protecting Lawful Streaming Act (PLSA) has, for the first time, made the massively harmful, large-scale illegal streaming of copyrighted material subject to felony prosecution. It is targeted at the real criminals and it will be effective in curbing large scale piracy. And the Copyright Alternative in Small-Claims Enforcement (CASE) Act establishes an alternative small claims tribunal for creative individuals and small businesses to protect themselves from infringement without having to use the costly and cumbersome federal court process. Both laws give creatives improved opportunities to protect their work in the internet era.
But honestly, it is difficult to look past the devastating problems we are facing right now, in this present moment. The future I am most excited about is one where we can all gather again and experience great art together. I just want to go to the movies again.