It’s hard to imagine that the people involved with this endeavor are failing to see what’s really going on here. But on the off chance that they don’t, I’ll explain. As an introduction, The Hollywood Reporter offered us this exclusive scoop earlier this week:
The war against movie piracy is getting downright explosive. We’ve learned that the producers of the Oscar-winning “The Hurt Locker” are preparing a massive lawsuit against thousands of individuals who pirated the film online….
Voltage Pictures, the banner behind the best picture winner, has signed up with the U.S. Copyright Group, the Washington D.C.-based venture that, as we first reported in March, has begun a litigation campaign targeting tens of thousands of BitTorrent users.
According to Thomas Dunlap, a lawyer at the firm, the multi-million dollar copyright infringement lawsuit should be filed this week. He declines to say exactly how many individuals will be targeted, but expect the number to be in the tens of thousands, if not more. “Locker” first leaked onto the web more than five months before its U.S. release and was a hot item in P2P circles after it won six Oscars in March. Despite the accolades, the film grossed only about $16 million in the U.S.
Let’s break this down: The Hurt Locker, as David Chen at /Film notes, “was leaked onto the internet not too long after it premiered at the Venice Film Festival in 2008 [where it garnered mostly rave reviews], far in advance of its June 2009 theatrical release.” This means that unless someone camcordered the film at Venice — which seems vanishingly unlikely; pirates are only interested in pristine files, anyway — the film was leaked by someone on the inside who had access to the source material. If the producers of the film truly wanted to crack down on piracy, that’s where they’d be attacking: You don’t prosecute the people who picked up currency blowing in the wind on a public street, you slam the guy who opened the door to the armored truck and started throwing bills onto that street.
Second: The old paradigm of film distribution is dead. The people who love movies are screaming this, but no one will listen. Audiences want to see films on their own terms. And I’m not just talking about the fact that multiplexes are horrible places and people would rather watch a movie from the comfort of their own sofas, instead of from a circle of hell where babies who should be home in bed are screaming their heads off and bland, artery-busting snacks require that you take out a second mortgage. I’m also talking about the fact that if your film gets great reviews at a festival, people don’t want to wait five months to see that film: they want to see it now. The whole idea of “seasons” for movies — summer for blockbusters kids like (because they’re off from school), autumn for serious awards-baiting fare (because… well, I dunno: Autumn means back-to-school solemnity?), winter for the dumping ground of crap (because everyone’s recovering from the holidays) — is dependent upon the notion that people make an effort to go out to the movies, and need time and money to do so. But people clearly don’t want to do that anymore. (Though perhaps they would if the multiplexes were better. But that’s a different rant.) And anyway, The Hurt Locker didn’t seem to want to slot itself into that “seasons” paradigm anyway, or it wouldn’t have been released for a full year after that Venice debut (or it would have been released simultaneously with Venice). So what the hell…?
If a movie like The Hurt Locker gets major buzz off a festival, what’s the point in holding is back for half a year? The fact the people were downloading a pirated version of the film should tell producers something: People want to see a movie when it’s hot. Why didn’t the producers of The Hurt Locker take advantage of this? (Yes, of course, there are concerns about available screens and the like. But available screens are actually all but limitless, if you think beyond the multiplex: Everyone has at least one, and likely many more, in their homes.) This became even more true after the film won the Oscar for Best Picture: it got even hotter on the pirate circuit (though it had already been released on DVD at that point). Greg Sandoval at Media Maverick writes:
It’s not difficult to guess why Voltage managers are so fired up. They won an Academy Award but only pocketed $16 million in the United States.
…
It’s probably frustrating for the producers to have earned so little from a movie that generated so much critical praise. How much piracy can be blamed for that isn’t clear.
You know what can be blamed for this? At the widest point of its North American release, The Hurt Locker was playing in only 535 theaters. Six hundred theaters is the bare minimum to be considered a “wide” release, and even that leaves large swathes of North America out of the fun. Most people who wanted to see The Hurt Locker had no legitimate way of doing so!
And you know what? The Hurt Locker has actually done very well for itself. It cost $15 million to make, and it has earned more than $40 million worldwide. It has earned another $28 million through DVD sales.
Here’s the thing: People who love movies are trying to tell Hollywood what’s wrong with how Hollywood is giving us movies, but Hollywood won’t listen. (And yes, I know that The Hurt Locker was not a Hollywood film, but an indie. Which makes listening to one’s audience even more vital, because you’re working on much smaller margins than fat-wallet Hollywood is.) I feel like I’m banging my head against a brick wall, I’ve said this so many times, but it’s pointless for the industry to fight this. Hollywood needs to listen to its customers, who are yelling for DVD and/or on-demand releases on the same day a film debuts on big screens… and that day had better not be too long after select audiences (such as at a festival) get to see a film. Because once word gets out, all the marketing in the world cannot trump the enthusiasm of audiences. If people want to see your movie, that’s a good thing. Give them ways to see your movie legitimately, and they’ll do so.
As a maker of the kind of intellectual property that is easily stolen — and frequently has been; I’m forever coming across sites that have reposted my work in its entirety — I don’t condone theft, and I know that unless creative people are compensated for their work, much of their creative output will go away. It drives me crazy to see people on the subway buying bootleg DVDs of movies currently in theaters: I always want to ask those buyers if they realize that the actors and directors and other creative people whose work they enjoy do not get compensated for that work when you buy a DVD from a pirate.
But that’s not what’s happening when movie fans, out of frustration, download a bootleg of a movie. (Or a TV show. I’ve made no secret of the fact that I am downloading files of the latest episodes of Doctor Who soon after they air on the BBC, which is an illegal act. I jaywalk, too, and that’s also illegal, because that’s often the most convenient way to cross the street. Downloading Doctor Who the only way I can see those episodes when they’re new. But I’ve also shelled out dough for the BBC America iTunes downloads, which are a few weeks behind the BBC, and I’ll buy the DVD set when it’s released as well, even though I’ll probably receive a press review copy, too. If what I’m doing is illegal, well, it feels more like civil disobedience. The law needs to catch up with reality.) Money is not changing hands… but it would if there were a method for it to do so!
To borrow a phrase I stumbled across recently, the barn door has sailed. It’s time for Hollywood to stop bailing out the Titanic and get in the lifeboats with the rest of us.
This has been your WTF Thought for the Day.
You know this movie opened in 4 theaters. And as you stated was only in 535 at its peak. Year One opened in 3000 plus theaters and it made 19 million the first week. Just on pure volume (was not on the quality of the movie for sure.)
How did the producers expect to make money in the theaters? Were we to drive from Topeka to LA to see the movie?
Had the movie been released into more theaters it would have made more money. Basic math.
Also they decided to release it against Harry Potter. And Transformers 2. And Ice Age – Age of the Dinosaurs. And Public Enemies.
Had they released it after the festival it would have done better.
From the sounds of it they wanted this movie to fail. They did about possible to ensure it would flop and it worked.
Your first point, about it being someone on the inside is spot on. I recall reading a Bell Labs story some 4-5 years back, where they looked into film release leakage, and found most of them, including the workprint of The Incredible Hulk in 2003, were inside jobs.
It’s all centered around the film industry. They say they protect jobs, and so on, but they don’t. It’s just one industry like others, and money is cyclic, it goes around. In fact, the vast accumulations are where it tends to stop and hurt the economy (things like multi-million dollar paychecks) In some ways then, movies are killing the economy.
I’m just wondering one thing. If you can produce a DVD copy of the movie would that get you off the hook for the lawsuit? Would the film comapany at least drop the charges against you? I realize that they obviously still did something illegal at the time but currently they would have the legal right to a copy of this movie and therefore proving damages is going to be harder since money was made.
Rereading my last post it seemed like someone looking for an out. I feel I should go on record as saying I stopped downloading movies online several years ago as it seemed to be getting too risky for me. My question is more in line with MaryAnn as I restrict my downloading to things I can’t get another way and when the opportunity arrises to pay I tend to purchase a legal copy if only to support the things I like so that I get to see more of them.
This is probably a separate issue, but I’ve been in Hanoi lately and there are shops whose entire stock is made up of pirated DVDs. Thousands and thousands of them. Is Vietnam a rogue state when it comes to copyright, I wonder?
Anyway, I bought four DVDs as I’ve been travelling since January and haven’t seen any films in that time. They may have been ridiculously cheap, but two of them didn’t work on my laptop at all and one froze after five minutes. That just left The Hurt Locker, which I’m sorry to say bored me shitless.
IIRC, one of the reasons the release of The Hurt Locker was postponed was to give it a better chance at awards season in the US by not pitting it against Slumdog Millionaire.
Which of THL’s producers are preparing this lawsuit, though? Kathryn Bigelow, Mark Boal, Nicolas Chartier & Greg Shapiro, the hands-on producers responsible for making the film, some of those name (who works for Voltage?) or other people on the distribution end of things?
Dave: I guess it depends on how boneheaded they plan on being but I believe technically, under the DMCA, having downloaded something that you already own a legitimate copy of is still an actionable offence. Proper leagle eagles might correct me on this, however. But the goal is to squash that method of aquisition and scare off casual downloaders. Whatever charge they can make stick is going to be grist to the mill.
General comment: That’s a great rant up there. The impression I get is that production and distribution in the movie biz is almost hand in glove, with art houses picking up the scraps at high cost (it’s certainly the case here in Aus, although the ‘hand’ is over in Hollywood). I wouldn’t be at all surprised if The Hurt Locker had a tough time getting a sympathetic ear in the ‘states after how badly most other Iraq films had done. That or perhaps this gaming of the art-house/awards circuit they did was specifically chosen for that reason.
At any rate, the reason that the status quo is taking its time shifting (preferring instead to lash out at its potential customers) is the Byzantine mesh of interests and favours in distribution is virtually impossible to disentangle.
It would be slightly ironic if THL had those distro problems and is now lashing out at the sort of distribution mistreated indies should be embracing.
Thank you for your wise and insightful commentary. While not endorsing or condoning what is a rather distasteful activity (stealing…) you explain some of the main motivators behind the culture and point the finger at the parties who can do the most about solving it. Cheers.
I do so wish they would learn and give people a legal way to get what they want. I hate watching, say, the latest season of a show I like on some crappy pirate site because they don’t offer a way to watch it online. When a show is offered on Hulu, or Netflix on Demand, or Amazon on Demand, I’ll watch the netads/pay a couple of bucks and watch it legally. I’d far rather do that than deal with BitTorrent or MegaVideo… just give me a way to give you money/ad viewing, and I’ll do it, TV/Film industry! B)
I want to point out that The Hurt Locker didn’t get released in Australia until early 2010. Heaps of my friends had watched downloaded versions by then. It was the same story with Sin City (which took an extra six months to get here) which is idiotic since that is a movie MADE for geeks like us, geeks that know about torrents. I know very few people who actually saw that film in the cinema.
But it’s all a case of an industry that refuses to adapt to new technology. It’s the same with the music industry.
Was The Hurt Locker held back because of its Oscar chances? I know a lot of films are released with the Oscars in mind but don’t really understand how it works.
Great points, I agree with you completely.
This situation feels much like a bait for power and control to me. I can’t be sympathetic when a company crying about “only millions made” like it’s a travesty.
The way I see things going, chasing copyright lawsuits will become a more lucrative business than actually releasing a movie. Therefore, the most efficient practice will become:
Pump up a movie, refuse to release it, silently(with plausible deniability) leak the movie, pursue and prosecute those who acquire it.
Awesome point-by-point article.
What interests me is that, say the producers wanted to double their revenue through this action, then each of the 50,000 would have to pay $320 (although they will probably be asked to settle for something in the thousands !).
So, rather than get all this negative publicity the producers should have made the film available for download at $7.50 or some such sum. An Academy Award winning film should easily achieve >2M downloads with the correct distribution channels.
I think the main problem is the lack of foresight by the film industry – they need to look into a digital distribution that serves everyone i.e. people outside the US shouldn’t have to wait weeks for region-by-region release.
Oh, and here’s a nice explanation of the fact that Copyright Infringement Is NOT Theft.
EFF is seeking as many attorneys as possible to advise the targets of these lawsuits and, where appropriate, file motions to quash. Respondents’ contact information would be added to a website that will act as a resource for the targets of these lawsuits.
If interested, please contact eva@eff.org with your contact information or the contact information for your firm, and the states in which you are licensed to practice law.
I don’t see a solution to this problem, other than streaming video and never letting anyone buy a movie. Even that won’t work now, but at some point in the future they may figure out a protective video algorithm that prevents a screen capture of the movie. There is no way to prevent copying.
They need to take a page from the RIAA and start suing the downloaders. Making it dangerous to share is their only hope for stopping this. Even that may become effectively impossible if the sharers can effectively mask their IPs.
I find it interesting that the intellectual property class in this country seems to have no ally in government. Nobody seems to have any interest in curbing this kind of piracy. I find it very odd.