Friday, June 26, 2009

Bootlegs, Ethics and Navigating the Grey Zone

Today I’d like to talk a little about a subject that can make a lot of cinephiles, film bloggers and internet users in general a little squeamish, if not outright defensive: copyright issues. I’m going to write about it at length, because I think it’s important and that there are a lot of misconceptions and misjudgments out there.

I’m going to try and make a distinction about what’s legal and what’s ethical based on my own knowledge and experience acquiring non-mainstream films and writing about them. I’ll finish by discussing some of the iffy “grey zone” questions I've had to ask myself.


What pop-culture has to say

First of all, let’s talk about the most common case, which is downloading a movie from the internet. Let’s assume this is a relatively recent (last 30 years) movie made in America by someone or some company that has not divested its copyright prerogatives and that it is widely available from a distributer on a modern format like DVD. The way I understand it, this describes most movies that are pirated. There is no question, none whatsoever, that downloading such a film is illegal and unethical.

I don’t think most people pirating movies have any doubts that what they’re doing is illegal, but they still manage to rationalize it. Downloading media has become so widespread that there is an “it’s OK because everybody’s doing it” atmosphere. It’s like drinking during prohibition, right? As I was attending college various techniques like direct connect and torrents became ubiquitous and many, many students I knew, otherwise ethical in other areas of their lives, had no qualms with amassing huge collections of illegal works. Most of my cinephile friends have downloaded a film at least once.

But doing something that is wrong just because lots of people are doing is about the worst logic I can think of and shows a weakness of character and general cynicism that it pretty contemptible. That’s why almost anyone who regularly violates copyright usually convinces themselves that what they are doing is not actually wrong. Perhaps illegal, but not particularly unethical. “Nobody gets hurt except maybe some corporate fat-cats.” Some of the rationalizations I hear people spout make me madder than if they’d just admitted they didn’t want to fork over their money.

A Chinese coworker of mine once explains how I should actually be on his side (pro-piracy), because bootlegging only hurts the big studios (who I’m always pillorying) and helps the common man see more movies (which I’m often advocating). In this popular self-serving fantasy, video pirates are technological freedom fighters committing heroic revolutionary acts. “Down with oppressive capitalism! Up with communal sharing of artistic works!”

Right. I’m sure self-interest never even enters into it. Much as I mistrust the rich and powerful, I don’t have much love for self-proclaimed Robin Hoods who steal from anyone who has what they want and give to themselves. If anyone, it’s the uploaders and free download sites who could claim to have society’s greater good at heart (though their substantial banner ads and popups make me think otherwise), but let’s at least not pretend downloading is about anything other than wanting to see a free movie.


What the law has to say

Any work, as soon as it is recorded in a fixed form is immediately protected by copyright. Films made for studios are considered “works for hire” and the rights belong to the producer and/or studio, not the director or screenwriter. No registration necessary. No copyright logo (©) necessary. No FBI warning necessary. These three things are included by major studios and distributers solely because they provide additional leverage when suing violators.

The copyright is held for 70 years after the author’s death (if made independently), 95 years from first date of publishing or 120 years from creation (whichever comes first).

In essence, you can not copy, distribute or display a film without permission if the rights are still in effect, subject to fair use. Fair use is a nebulous concept that takes into consideration the purpose, portion and influence on profit that a reproduction incurs. For instance, the screenshots that I take for use on this blog are explicitly protected because they are used for the purpose of a review, are not exploited for my money and represent a tiny fraction of the film in question.

But don’t get the idea that copyright is a simple matter. It is the realm of lawyers and complicated exceptions and elaborate flowcharts. (Though who doesn’t love a law that distinguishes separate treatments for parody and satire?) It can take a great deal of research to discover if a film’s copyrights have lapsed, putting it in public domain. I recently bought a 12-movie collection of silent “public domain” Hitchcock films from Best Buy. I’ve since discovered that most of them actually do have rights retained on them, but if the distributer, Best Buy and a reasonably sharp film blogger like myself didn’t know, can Joe Consumer be expected to do the research?

Well, copyright law does make provisions for people who commit what is called “innocent infringement” if the person was not aware and had no reason to believe that the work was still under copyright. You’d only be liable for about $200 per work. Willful infringement (most of what goes on online) is another matter, and if the work is registered, could result in as much as $150,000 per work. The law is much harsher on those who make a bootleg than it is with people who knowingly buy a bootleg. Downloading a film, by the way, counts as making an illegal copy. “Time-shifting,” recording a film off of TV to watch later, is covered by fair use.

There is no active agency that enforces copyright, which is one reason why most people get away with it. A complaint has to be issued from the authentic rights holder who must send a cease and desist letter and press suit themselves. If the work in question is not registered, they can only hope to recover the loss of profit they suffered, which often makes the effort worthless. If the work was registered, they can hit you for the numbers mentioned above.

Now here is something I want all the free film revolutionaries to pay close attention to: because the big studios register all their works, monitor a lot of internet sites and possess an army of lawyers with decades of experience, they are the ones mostly likely and most able to enforce their copyrights. They go through a lot of trouble to ensure that they do not lose profits because of piracy. They hire lobbyists to secure laws in their favor. They hire lawyers to sue companies and individuals. They raise the prices on DVDs to help recoup their losses.

They might still do these things to some extent even if piracy was not such a problem, but the more piracy goes on, the more they will react with aggressive business strategies. The bottom line is that when you score a point against a big studio by downloading one of their films, they will just take it out on people, often times the ones who are paying legally. It is the little companies and independent filmmakers, who are less able to defend themselves, that actually get hurt. Even if these victims are interested in fighting to enforce their copyrights, they have to pay court fees and waste time that could have gone to their continued creative output.


What ethics has to say

So if you actually care about making artistic works available to a wider audience then there are productive and ethical ways of championing that cause that are more credible than self-interest motivated piracy:
1) Support movements to change copyright law.
2) Help research and publicize lists of films that have not been renewed and are in the public domain.
3) Research films that are not available and not in public domain and organize campaigns to request those movies be released. When a large enough fan base makes itself known, there’s a much greater financial impetus to distribute unavailable films.
4) Support studios, distributors and filmmakers who make quality films available at reasonable prices.
5) Politely contact rights holders for permission or carefully utilize fair use provisions to present films in a non-profit, educational environment.
6) Make your own creative works and get them out to the public.

Complicated as copyright law is, the ethical questions surrounding the issue are even more slippery. At least in today’s culture I suspect that people are much more likely to obey their own judgment than the law, so talking about the ethical standpoint might be more convincing. If someone says they don’t believe in copyrights, they aren’t likely to hold back just because a rarely-enforced law says so.

So let’s look at some fundamental premises that copyright law takes for granted:
1) An artist’s work belongs to the artist or whoever commissioned the work and took the financial risk for it.
2) Artistic works such as film have value.
3) The person(s) in (1) has the sole right to modify, sell, exchange or license the work and to otherwise obtain the financial value they believe it to be worth.

I know a lot of people who claim to disagree with one or more of these ideas. For example, you might say that a responsible government has a duty to provide free access for its citizens to at least some of their culture’s creative heritage much the same way as it should ensure universal education and medical care for the poor. You might argue that fixing a price for a work of art is subjective, or disagree over why producers/studios have exclusive rights while the crew has none or quibble about the exact extent of the artist’s moral rights to their work (an area where the US trails a bit behind Europe).

I understand these and similar disagreements, but if you just plain don’t accept any of the basic premises above, you probably can’t be convinced of the need for copyrights. But if you’ve at least thought about the issues and developed and a worldview that isn’t merely self-serving, than at least you’re not obliviously taking bootlegs for granted.

Believe it or not, copyright law did originally have the public good in mind. It’s a balancing act: on one hand, you want to protect an artist’s copyright so that it is profitable and sustainable to create artistic works and on the other hand you want as many people as possible to have access to these works.

The original copyright act of 1709 issued rights for 14 years with a one-time optional renewal for 14 more years. This has since been extended to a rather ridiculous 95 years since its first publication (in our case, screening) which accounts for pretty much the entire history of cinema. I doubt if most people could even name a feature film from before 1914. Clearly the law has come to favor the rights holders over the public. Not coincidentally, those rights holders are largely giant media corporations with Washington influence. Indeed, supported by special interests groups like Disney, a succession of laws derisively called the “Mickey Mouse Protection Act” has continued to push back the expiration date indefinitely.

At least with film, where a huge proportion of the profits are made within the first weekend of the release and most of the money even from rentals happens within a couple of years, I consider the lifetime of copyrights to be irrationally out of control. But if a studio or distributer continues to make their films widely available for reasonable prices and on modern formats, I still think it’s tough to violate copyrights and still allege the moral high ground. Especially these days with library’s stocked with classic films that are freely available to the public.

To me, the ethical question of rather it is OK to violate copyrights only really gets interesting when you look at films that are not widely or reasonably available or which aren’t available at all.



What I have to say

This is where I come in and start talking about my opinion on the ethics of unauthorized film distribution. It suffers from my own rationalizations and compromises, but I try to be honest about it and to hold myself to high standards, common sense and best intentions. I do think pretty much every film should be available to the world at a reasonable price (say, ~$50 or less), and in that sense I am guilty of my generation’s renowned sense of entitlement, but I’m not asking filmmakers or distributors to give something for nothing.

Solipsistic as it may sound, I’m going to conduct a Q&A with myself. That way, if anyone else wants to, they can copy just the list of questions and answer them based on their own convictions or present them to others as discussion points. Both might make for good exercises.

Q: How do you feel about borrowing movies between friends?
A: If money doesn’t exchange hands, I’m all for it. In fact, it’s one of my favorite ways of shaping cinephile converts.
The strict wording on some FBI warnings I’ve seen implies that you can’t even watch the film with your extended family. I think that’s just ridiculous.

Q: How do you feel about showing films to clubs or other organizations?
A: I think screenings of legal copies in small, non-profit clubs and educational organizations is fair use and utterly grand (obviously, considering my film club history). My college gets permission to show DVDs and 35mm prints to the community for free in exchange for not advertising the screenings, while my brother’s college runs licensed, low-cost screenings that have permission to advertise. I think that with anything smaller than those venues, especially if you’re showing something that most of the audience wouldn’t have even known about otherwise, you’re not cutting into anyone’s profit.

Q: Should you avoid bootlegs (from here on to include downloads and any other unauthorized acquisition of a film) even if there is no other option?
A:
There’s a lot of circumstances I try to take into account. The simplest case, where a film is not available in any home format and is not shown on TV in your country, is one where I easily approve of bootlegs (presumably sourced from tapes of foreign TV airings). You are still responsible for confirming that the movie is not available.

Q: What if a film sometimes plays on TV, but isn’t otherwise available?
A: Wait for it to play on TV and watch or record it. If it requires cable/satellite that you wouldn’t otherwise buy, having a friend record it has never seemed a cardinal sin to me.
However, if a station owns the rights for a film and never (or almost never) plays it, do what you want and make your own peace. Previously I would give TCM (who owns an enormous amount of the unreleased films out there) about 6 months to a year to play a film before I sought other means, but if TCM follows through with their plan to make their entire library available on DVD by request, then I no longer need to make furtive back-alley deals.

Q: What if a film is available only on an old format like laserdisc?
A: Personally, I keep a VHS player around so that I can still watch the huge number of films that are available on tape but not disc. For films only previously marketed on obsolete formats like laserdisc, check whether the distributer is still around and considering a rerelease. Failing that, I generally seek out bootlegs sourced from the obsolete format.

Q: What if a movie is only available from another country, in PAL format and/or with incompatible region codes?
A: I found that a great investment is a region-free, any-standard DVD player (which are perfectly legal) that can play movies from anywhere in the world. Since region encoding is not backed by law – it is purely a way to increase profits by giving higher prices to wealthier regions – I never feel bad buying the film and stripping the silly limitations off with computer software (the distributor still got their money).
That said, I think that this is a case where the rights owner stupidly limited their own profits by not giving you a fully authorized option to pursue, and so I understand if people feel that getting a bootleg isn’t harming the company more than they harmed themselves.

Q: What if a movie is only available in another language?
A:
You can often times find free subtitle files, which are legal to create and distribute. Minimal tech savvy is required to apply subtitle files to movies viewed on your computer.
Fansubbed bootlegs are illegal, but I still consider them a reasonable option if the current rights owner has no plans to provide a version in your language. I consider people who provide high quality fansubs to be doing a service to the cinema community.

Q: What if a film is only available for an exorbitantly high price, like a 35mm rental fee of or a festival/promotional/educational purposes price?
A: I’ve seen a lot 35mm rentals as high as $1000, without even taking into account the cost of the equipment you would need to project it. Festival/promotional/educational copies, which often pertain to experimental films, tend to be in the $100 to $250 range. That’s a sign that the distributor is doing outdated celluloid copies not intended for the general market. Sometimes you just have to wait for them to get their distribution branch in order for the price to drop.
If the rights owners posses digitized copies of these films that could be written to a DVD-r with little hassle, I consider the prices quoted above to be unreasonable and beyond the means of the general public (though exceptions exist). I have occasionally resorted to bootlegs in that situation, but often I just ignore these films.
If a movie is just plain expensive, like a Criterion release or the latest Blu-ray blockbuster, that doesn’t count as unreasonable in my book. You need to just commit to the price tag or wait for the cost to fall and used copies to become available.

Q: What if the rights owner wants to restrict who sees a film or how it is displayed?
A: If the rights owner in this case is the original author (preferably the director), then you should listen to their explanation, if one is given, and preferably respect it. I don’t usually agree that a film must be seen in theatrical conditions (as some filmmakers and critics insist) to be correctly understood and fully appreciated, but that is one expression of an artist’s moral rights over their work.
Sometimes I give in to moments of weakness and watch bootlegs of these films anyway, but I promise myself that, even if I don’t like it, I will give it a proper chance on the silver screen given the opportunity.
If the rights owner is a special interest group or religious organization that has acquired the rights for the purpose of preventing distribution and suppressing the original artist’s message, I side with the artist.
If the rights owner is a company utterly unaware or uninterested in distributing the film and unwilling to sell the rights to someone who is, I look for a bootleg. I’ve heard that the rights to some Peter Greenaway films went through several bankruptcy and repackaging sales and are now bundled into some obscure Japanese investment holding. If that’s true, then it’s a good example of a copyright not serving anyone’s idea of the public good.

Q: What if you think a film is in the public domain?
A: If it really is in public domain then it is legal to download and copies sold by anyone can’t be considered bootlegs. However, you should do at least some research into the matter. If I can’t find any glimmer of extant copyrights for a film during an hour of internet searching, I’ve satisfied my own conscience. The United States Copyright Office will conduct a semi-conclusive search for $150, or if you live near D.C. you can search their records for free. I’ve never gone that far.
Just because a film is in the public domain, though, doesn't mean it's not worth paying for. Most free and budget releases of public domain films are god-awful lazy transfers. I've found myself paying extra to get a definitive edition in more than one case.

Q: What if a film is only available on the grey market?
A: The grey market is usually meant to refer to internet sellers, called dealers, who sell movies that no one else has actively asserted copyrights for. Sometimes rights are not renewed, get trapped in limbo by a legal dispute, disappear with a distributor who goes out of business or get sold piecemeal only to specific countries. Dealers often times have a message like this one on their websites:
“The United States Berne Act states that: Films unreleased in the United States, including original version of films altered and/or edited for release in the United States, are not protected by American copyright; thus, they are considered public domain.”
That’s BS, although for years I believed it, mostly because I wanted desperately to believe it and never bothered to check. Having since read the Berne Convention Act and related copyright laws, I can safely say that it states the exact opposite: Movies copyrighted in foreign countries (or at least the majority who signed the Berne Act) are fully protected by U.S. copyright law.
Still, if you have decided for whatever reason that this is the best way to get the film, then it is less illegal than downloading the film since the lion’s share of the liability is on the shoulders of the dealer. Most of the dealers I’ve worked with are good people and will immediately withdraw items from their catalogue if you can show that another entity owns the rights.

Q: What if you acquire an unauthorized version of a movie when nothing else was available and then an authorized version becomes available?
A: My personal code of ethics is that I have to buy the authorized version when if it becomes available. This is really hard for me if I didn’t even end up liking the movie when I saw the bootleg.
The same philosophy has served me well with videogames. In college, I downloaded emulated roms (bootlegs of old videogames that run on a computer) from obsolete systems, but now that Nintendo makes many of these available legally on the Wii’s online store, at very reasonable prices, I’ve squared myself with the company.

Q: Is it OK to make copies of rented material?
A: Generally, no. I have at least two friends who rip all their Netflix movies to their computer so that they can send the discs back the same day. The way I see it, if you watch the film multiple times on your computer or lend it out, you are getting all the benefits of buying the film at only rental prices. If you are just watching the films at a later time and then deleting them, that’s probably just fair use time-shifting.

Q: Be honest, how many unauthorized movies do you own?
A: If you’ve tried to get a movie I’ve reviewed on this blog, odds are good that it was suspiciously absent from Netflix or Amazon. I’ve bought a bit over a hundred grey market bootlegs, most of which I can justify in keeping with the answers I’ve given above. I really do try to make sure that the artist and/or rights owner is compensated for their work whenever reasonably possible. I plan to be even more careful in the future.
The one black market bootleg I own, “Kill Bill Part I,” was purchased in the Philippines by a roommate and given to me as a gift. I keep it around because the creative English subtitles are hilarious, and probably constitute an original work in themselves.


The conversation continues, with particular emphasis on the anime community, over at The Grump Factory. John shares some his own thoughts and reactions on the issue of downloads and bootlegs.

8 comments:

Nigel M said...

Good points there.

I don't download major studio releases- partly due to the ethical issues but more often or not because they are a waste of bandwidth.

But I collect some pretty obscure Italian stuff, and rely heavily on downloads and grey market. Though I do buy all titles that have a legit release - from raro, no shame, shameless, blue underground and so on.

It does mean I have my fair share of fansubbed tv rips but if you want to see some of the more obscure eurocrime it is often the only way.

I don't justify any way by an ethical code. But I get to see the films regardless.

Incidentally, all titles I download or buy in the grey market I am willing to buy proper releases for but many don't seem to interest distributors as the fanbase for this stuff is not exactly massive.

SH said...

Hrrmmm.. I think it's pretty sketchy to try to claim that paying for bootlegs are better than downloading a file, which seem to be what you're saying here. (Correct me if I'm wrong!)

In my view, to pay for a bootleg is much worse than to get it for free because the bootlegger thus earn money on a slightly shady activity, making it even more shady and unethical.
That the bootleggers will stop distributing the file once the work becomes officially available is not sufficient for me - they'll still have earned money from an (partly) illegal action.

Otherwise, a good overview.
(I myself mostly rely on downloads and also buy a lot but never bootlegs even though sometimes a bit tempted to)

Walrus said...

Nigel,

Your situation, which is largely my own, seems to be pretty common amongst film bloggers with niche tastes. As you say, we're more than willing to pay a little more than usual for the few distributors out there like shameless and blue underground, but there just aren't too many alternatives for some niche films that, through no fault of their creators, are just not being sold. I think buying the legit copies when they become available is a key sign that your downloads are driven by unavailability and not stinginess.

SH,

Legally speaking, buying from a grey market bootlegger only makes you an accessory to the crime, and not even that if there was good reason for you to think the bootleg was legit or public domain. When you download a film you are, under the law, making a bootleg and liable for higher penalties.

Now I don't claim that's the way it should be. I agree about black market bootleggers and that it is unethical to help make their business lucrative. But, there being no such thing as a free lunch, keep in mind that downloading also supports illegal websites by increasing their hit counts and download counts which increases how much they earn from ad revenue. It's not as profitable, but it does make a living for many people.

On a personal note, I have a good relationship with several grey market dealers and I've had a chance to discuss their business with them. Most of them, to one degree or another, honestly care about making unavailable films available to the masses. Even though you could point out that they are misguided and even criminal, I don't think I have it in me to condemn them outright.

These days I do more downloading than grey market purchases, mostly because there's a much wider selection of extremely rare stuff.

Nigel M said...

Walrus,

With reference to your reply to SH, your experiences with grey market sellers sort of tally's with my own.

These are people who are not just content to sell niche stuff but to track down the best versions- often these are people are very much part of the fan community themselves.

There are other side issues that are worth considering if you are trying to set up an ethical argument. Here I am thinking of issues of censorship.

Britain in the VHS era had some pretty heavy censorship and many titles were only available in uncut form via grey market VHS.

So there lies a counter ethical argument where some films were banned outright and others were cut to ribbons. People I have come into contact in grey market have tried to source most complete versions where legal distributors have been willing accomplices in the censors game.

Then there is of course the fansubbing and dubbing community without whom we would not get films such as La Pretora or How We Robbed The Bank Of Italy, Operation St Peters or other Fulci comedies.

Okay there is now a legit version of Fulci's The Maniacs and that is on my shopping list but without bootlegs and fansubbers we had little chance of appraising Lucio Fulci's early career as a comedy director.

But as a collector I never download what I can buy nor source a DVD-R where there is a distributor taking up titles and I always upgrade to legit versions where and when they come about.

For years in Britain the only way to get hold of clockwork orange was via an extremely ropey nth generation VHS.

Brian O'Blivion said...

It's amazing in how people can twist themselves into pretzels justifying, or not justifying their actions.

Bottom line, as far as the studios and companies that control this stuff are concerned, if you didn't put money in their pocket for movies or music, you're STEALING.

On the other hand, a lot of the more obscure stuff probably wouldn't exist if someone didn't take the time to procure a copy.

It's a murky area because both sides are right, up to a point -- however, there are things which are just ridiculous, such as BAD LIEUTENANT not being available in its original form unless you have the old VHS or laserdisc; the troubles that animator Nina Paley went through with her film, SITA SINGS THE BLUES (now available, thankfully), and any number of examples one can state.

Plus the fact that companies really aren't interested in exploiting whatever content they may have unless there is a way for them to make big money from it -- not "some money", but 'big money', meaning that it has either got to appeal to the general public or the base has to be large enough, and willing enough to pay inflated prices for the cost to be recouped.

Myself, I'd rather watch the movie NOW, then hopefully wait for the stars to align, and the music rights to clear, before some company decides to legitimately release it.

As for the naysayers... the fact that we're able to talk, in detail, about this stuff in blogs, sort of makes you hypocrites, in a way -- after all, how did you see the copy that you're reviewing?

Walrus said...

Nigel and Brian,

Both of you bring up the point of releases that are cut, censored or otherwise changed outside the artist's control, and I think that is a good example of ethics and the law being on opposite sides. Seeking out the artist-intended version is always my preferred solution, even if you have to resort to bootlegs. "The Thief and the Cobbler" comes to mind as an example where nearly every unofficial cut I've seen is better than the Miramax release.

Love the Videodrome reference, by the way!

Mad Dog said...

Sometimes waiting does reward you. I waited until there was a decent American transfer of Lost Highway, not a full-screen Canadian release, to consider seeing it.

Mad Dog said...

http://kotaku.com/5304376/the-pirate-bay-purchased

Of note to the proceedings?