hollywood – Techdirt (original) (raw)

More Layoffs At Paramount As Streaming Media Giant’s ‘Merger Synergies’ Continue

from the merge-everything-into-one-giant-turd dept

Over the summer we noted how the brunchlords in charge of Paramount (CBS) decided to eliminate decades of MTV News journalism and Comedy Central history as part of their ongoing and utterly mindless “cost saving” efforts. It was just the latest casualties in an ever-consolidating and very broken U.S. media business routinely run by some of the least competent people imaginable.

We’ve noted how with streaming subscriber growth slowing, quarterly returns have stagnated. So media giants (and the incompetent brunchlords who usually fail upward into positions of unearned power within them) have turned their attention to all the usual tricks: layoffs, pointless megamergers, price hikes, and weird and costly consumer restrictions to goose quarterly earnings and generate tax breaks.

That of course includes Paramount, which recently announced a major merger with Redbird/Skydance that executives promised would result in untold and amazing new “synergies,” helping transform the company into a next-generation streaming juggernaut. Of course what’s actually happened, as usual, has been a whole bunch of layoffs, the second round of which hit this week:

“Paramount is looking to save some $500 million and plans to lay off 15 percent of its U.S.-based employees. Tuesday’s layoffs were the second round, following a first wave of job cuts in mid-August.”

In a statement, Paramount executives called the mass firings an evolution:

“Like the entire Media industry, we are working to accelerate streaming profitability while at the same time adjusting to the evolving landscape in our traditional businesses. Days like today are never easy. It is difficult to say goodbye to valued colleagues, and to those departing, we are incredibly grateful for your countless contributions.”

The new company is being overseen by Larry Ellison’s son David, who first used family Oracle wealth to purchase his role as a Hollywood producer, then received a $6 billion gift from dad to make the merger possible. Paramount had struggled with its ingenious strategy of charging higher and higher rates for lower and lower quality services, and eyed a merger as an executive escape hatch.

Again, the promise here is that this results in a better, leaner, more interesting company, but when it comes to media deals like this, that’s rarely the case. There’s hardly a single major media merger in the last twenty years that genuinely improved product quality or the fortunes of employees or consumers. And it’s almost never the strategically incompetent higher-level executives that wind up paying the price.

In reality, all the costs of debt-riddled transactions are borne by either consumers (in the form of higher prices, lower-quality services, and annoying new restrictions) or lower and mid-level employees in the form of layoffs. The AT&T–>Time Warner–>Discovery series of mergers was the poster child for the madness and dysfunction caused by this “consolidation for consolidation’s sake” mindset.

Wall Street wants its improved quarterly returns at any cost. It doesn’t care if those short term profits result in a lower quality product, consumer backlash, a loss of our collective history, or permanent damage to the brand. That’s a problem for somebody else to figure out after the extraction class has already made their money on the front end.

It’s a pointless doom loop that’s infected both entertainment media and traditional journalism. By the time any sort of check comes due for executive incompetence, they’ve either retired on the back of outsized compensation, or are off to another company to repeat the entire process all over again, having been financially disincentivized from learning absolutely anything from the experience.

Filed Under: brunchlords, consolidation, hollywood, journalism, media, mergers, streaming, video
Companies: cbs, paramount

from the the-ai-revolution-is-making-things-weird dept

We live in strange times. It used to be that you could set your watch to one simple thing: any time any government agency or policymaker had any question about whether or not we needed to expand copyright laws, Hollywood would answer with a resounding “YES, ABSOLUTELY!” Over the years, copyright has expanded massively, and always right there pushing that along gleefully has been the Motion Picture Association (MPA, formerly the MPAA).

So… it took me a moment to recalibrate my brain when I saw that in the recent Copyright Office docket on Artificial Intelligence and Copyright (the one where we filed a comment saying that we should not be changing copyright law to deal with AI), that the MPA… agrees with us (at least a little bit)?

MPA’s overarching view, based on the current state, is that while AI technologies raise a host of novel questions, those questions implicate well-established copyright law doctrines and principles. At present, there is no reason to conclude that these existing doctrines and principles will be inadequate to provide courts and the Copyright Office with the tools they need to answer AI-related questions as and when they arise. The Copyright Office has an important role to play in ensuring a careful and considered approach to AI and copyright. At the current time, however, there is no need for legislation or special rules to apply copyright law in the context of AI

Of course, it’s easier to understand this in the context of the recent TV and film writers’ strike as well as the still ongoing screen actors strike, in which AI is a central part of the debate. I think the MPA is (perhaps reasonably?) concerned that opening up copyright laws at this point might lead to problematic limits on how AI can be used, when the movie studios would actually like to make use of the technology in fairly reasonable ways.

That said, I don’t endorse the MPA’s full statement, which I think is just wrong on many accounts. It is not arguing that training on public works is not infringing (as we believe), but rather existing copyright law already covers that situation.

Sweeping generalizations that training is always, or is never, fair use are not helpful. For example, in moving to dismiss a lawsuit brought in the Northern District of California by anonymous individuals, including an author, Google stated that “training Generative AI models on information publicly shared on the internet” categorically is not “copyright infringement.” The premise of this argument is that if a copyrighted work is accessible on the internet, it is free for the taking. That premise is flatly wrong and unsupported by case law.

Likewise, in comments before the House Subcommittee on the Courts, Intellectual Property, and the Internet, Sy Damle stated: “Foundational copyright cases establish that the use of copyright-eligible content to create non-infringing works is protected fair use, even if the non-infringing works compete with the originals.” That sweeping proposition is fundamentally inconsistent with the fact-intensive nature of fair use and is not supported by the case law. These comments cited HathiTrust, Authors Guild v. Google, and Sega. But the courts in those cases did not announce the broad rule for which the comments cite them. On the contrary, the courts found the particular uses in those cases fair only after applying the statutory factors to the specific facts before them.

It’s an interesting move to argue that Damle, former General Counsel of the Copyright Office, is somehow saying things “not supported by the case law” though I guess that’s what you get when the MPA is dealing with the rare former GC from the Copyright Office who seemed to actually understand the limits of copyright law.

But, still, I just want to note that this is pretty much the only time I can remember of the MPA having a chance to say “let’s expand copyright laws!” and coming back with a “wait, wait, wait, we’re just fine as is.”

Also, for what it’s worth, the MPA and Copia feel very strongly different about some of the other points we both answered in this inquiry. We questioned the whole premise of having to opt-in to having your content as part of the training, and the MPA is arguing that that training may be infringing, especially in commercial contexts, and therefore would require a license.

Of course, this is a weird time with weird bedfellows. So while the MPA is saying “we don’t need to change copyright laws,” internet giant IAC and Barry Diller, are saying “of course we need to change copyright law to protect against evil AI.”

This really isn’t a surprise, either, though. Diller/IAC also own Dotdash Meredith, a big publisher of vertical content. And they want to get paid. Diller has been whining incessantly for months about how fair use needs to be changed to make sure he gets paid from AI training on their content.

“All we want to do is establish that there is no such thing as fair use for AI, which gives us standing.”

Which is, well, quite a statement.

Still, it’s interesting to me to see how the whole AI space is shifting roles a bit. Historically, internet properties have been against expanding copyright laws, while Hollywood has been in favor of it. Here, those roles are a little different, though in both cases it suggests that “big companies want what’s in the best interest of their own bottom lines.” Which, I guess, isn’t that surprising.

Of course, that leaves little nobodies like us to take the actual principled stand regarding what’s actually best for the internet, for people, and for innovation.

Filed Under: ai, barry diller, copyright, copyright office, fair use, hollywood
Companies: iac, mpa

We’ve talked a lot about questions regarding AI and copyright over the last few years, highlighting repeatedly that AI-created works cannot be covered by copyrights. No matter how many times we’ve pointed this out, some are still trying, and it was nice to see yet another court (not the first) again say that AI-created works get no copyright at all just recently.

There’s also an issue regarding AI and the ongoing writers’ and actors’ strike against Hollywood studios. Some of the strikers are wondering if copyright can help protect them, and I’ve explained to them that it’s very much the wrong tool.

But, in a weird way, the lack of copyright on AI-created materials actually creates a surprising kind of leverage point for the creative folks who are striking. The Hollywood Reporter recently had an oddly framed article about the AI part of the dispute, highlighting the fact that copyright law doesn’t cover AI-created works, and suggesting that will impact the studios’ “offer to writers.”

But missing from the proposal, which was described as meeting the “priority concerns” of the guild, is how the studios need writers to exploit any work created by AI under existing copyright laws. That’s because works solely created by AI are not copyrightable. To be granted protection, a human would need to rewrite any AI-produced script.

“Fundamentally, the offers mistook who’s doing who a favor,” John Lopez, a member of the WGA’s working group on AI, tells The Hollywood Reporter. “They need us.”

By keeping AI on the table, the studios may be looking to capitalize on the intellectual property rights around works created by the tools. “If a human touches material created by generative AI, then the typical copyright protections will kick in,” a source close to the AMPTP says.

This is… confusing, and only partly accurate. But it makes for an interesting discussion for the writers and actors worried about AI. They can actually leverage the lack of copyright on AI-created works to their advantage in these negotiations.

The article is correct that AI-created works don’t get copyright protection, but if there’s a human (or multiple humans) in the process, the creative elements added by those humans could get some level of copyright protection, though it would generally be seen as “thin” copyright, such as that given to nature photographs, in which the human creativity is only a small part of what makes the photo work, and the copyright protection is limited to just those human created elements.

Thus, it seems to me that the striking writers and and actors can use the studios’ (overly aggressive and often ridiculous) infatuation with copyright law to their own advantage, by highlighting that without their direct human involvement, the studios will risk releasing TV and movies that have very weak copyright built in.

If the studios want to retain strong copyright protection (and because it’s been driven into their heads that they need this badly)… then, they need to involve the actual writers and actors, and not just use the AI.

In a weird way, the lack of copyright protection for AI-created works actually helps the striking writers and actors, because it’s their human creativity that can imbue a work with copyright protection (even if that copyright is then assigned to the studio itself). I find this… pretty amusing and I hope that actors and writers leverage the studios’ obsession with copyright to their own advantage here. Hollywood’s obsession with copyright and the false belief that it must protect everything actually harms its position here… and that just seems like the kind of thing that the Hollywood studios deserve.

Filed Under: actors, ai, copyright, hollywood, strike, thin copyright, writer's strike, writers
Companies: amptp

AMC’s ‘Fix’ For Declining Movie Theater Attendance? Charging You More Money To Sit In The Same Seats

from the problem-solved! dept

Tue, Feb 7th 2023 09:24am - Karl Bode

You might recall that during pandemic lockdowns, AMC executives threw a massive temper tantrum because companies like Comcast/NBC began experimenting with slightly more innovative release windows. AMC was mad because the pandemic highlighted how the 90-day gap between the time a movie appears in theaters and its streaming or DVD release was exposed as both dated and stupid.

Comcast (successfully) experimented with not only shortening the window, but eliminating it entirely. At the time, AMC Theatre CEO Adam Aron pouted like a child, insisting that Comcast films would never again appear in AMC theaters, before ultimately having to retract the silly threat.

AMC and Aron have since had plenty of time to contemplate new ways to shore up attendance in traditional brick and mortar movie theaters. And what have they come up with? AMC executives say they’ll soon start charging consumers more money for better seats, a move that doesn’t meaningfully improve the product, but does involve charging existing customers more money for the same service.

The justification for the idea is framed in the most corporate-speak way possible:

“Sightline at AMC more closely aligns AMC’s seat pricing approach to that of many other entertainment venues, offering experienced-based pricing and another way for moviegoers to find value at the movies,” said Eliot Hamlisch, executive VP and CMO at AMC Theatres. “While every seat at AMC delivers an amazing moviegoing experience, we know there are some moviegoers who prioritize their specific seat and others who prioritize value moviegoing. Sightline at AMC accommodates both sentiments to help ensure that our guests have more control over their experience, so that every trip to an AMC is a great one.”

One problem is AMC is pretending it’s competing with professional live theater and other businesses where nosebleed and priority seating has long been standard. But AMC isn’t competing with those business models, it’s competing with the convenience of home entertainment, and the simplicity and ease of being able to watch movies, at home, uninterrupted on the couch using modern high-end gear.

AMC had several years during the pandemic to contemplate how to make the traditional movie theater experience more enticing, and the very best they could apparently come up with was charging some people significantly more money for the same seats they’ve always used. Super innovative! Surely streaming competitors will have to rethink their entire home entertainment business model.

Filed Under: amc, assigned seats, competition, hollywood, movie theaters, movies, price discrimination
Companies: amc

You’re Living In The True Golden Age Of Television. Enjoy It, Because It’s About To End.

from the history-repeats-itself dept

Mon, Sep 12th 2022 06:30am - Karl Bode

To be clear, the shift from traditional cable television to streaming TV has been a very good thing. Consumers had grown irritated with bloated, expensive bundles of channels they never watched, and customer service that was literally ranked some of the worst of any industry in America. Based on recent data, it’s not a trend that’s going to be slowing down anytime soon.

But there is trouble in paradise, and it’s pretty clear the honeymoon phase of the streaming revolution is over.

Netflix, for example, recently lost subscribers for the first time and Wall Street is pressuring it to nickel-and-dime its users. Popular programming is disappearing for no good reason, companies are starting to mindlessly consolidate, prices are going up, the fractured hunt for exclusives risks driving users back to piracy, and a lot of folks are getting fired as once-fat budgets tighten.

The Washington Post’s Travis Andrews puts it pretty well:

Streaming television is going through an existential crisis, involving the people who make it and the viewers who watch it. Its revolutionary zeal has naturally faded, as that initial wave of near limitless expansion, boundless creative opportunities and vast archival choices crashes ashore, after a spate of megamergers and a drop in new subscribers.

Wall Street wants what it wants. And what it always wants is improved quarterly returns at any cost. What usually gets sacrificed in this equation is stuff like quality, jobs, diversity, and customer service. With more ads. And as companies increasingly consolidate, the streaming sector risks looking increasingly like the stodgy, predatory, tone-deaf, traditional cable and broadcast industry it supplanted:

“The streaming services are moving more toward becoming more similar to the broadcast networks and cable networks that existed before,” said Tim Doyle, a TV writer and producer who has been in the industry for more than three decades. “They’ve suddenly come up with this great idea that if you put in advertising, you can make money selling the ads! So they’re basically just kind of retreating back to the things that are familiar.”

Industry insiders predict the next phase of this evolution is a slow degradation of program quality, something you also noticed with traditional television and the shift to inexpensive, often wildly idiotic reality TV programming:

Comedian Adam Conover, who has created shows for both cable and streaming services — “Adam Ruins Everything” for cable’s TruTV and “The G Word with Adam Conover” on Netflix — worries that “where the industry is going is something potentially worse than cable. That’s my fear. I think we’re moving there quickly.”

“The early promise of the streaming years was a fantasy and/or a lie. And we’re moving into an entertainment industry that is much worse for everyone. Everyone, including the shareholders of these companies,” Conover said. “The only people who are going to be profiting whatsoever are the very few CEOs at the top who make the deals happen, but everybody else is losing out.”

I think it’s a reach to suggest that the “early promise” of the streaming years was a “fantasy or a lie.” It’s pretty clear that things improved overall. There are more options, there are lower costs, and streaming TV customer satisfaction remains miles ahead of traditional cable TV. Most importantly, users can cancel and restart subscriptions after binge-watching available content, which is a huge shift from traditional cable.

But it’s clear that myopic executives, mindless consolidation, and a “growth for growth’s sake” mindset risks shifting things very quickly back in the wrong direction. This is what Wall Street does. The need for improved quarterly returns is corrosive. It means you can’t just sell an affordable, quality product people really like. You have to somehow cut costs and expand simultaneously.

The end result, as it was with traditional cable TV, is likely shittier programming, less choice, layoffs, and perpetual price hikes. The reality is you may very well be experiencing a high point in television history, so try to appreciate what you’ve got, while you’ve got it.

Filed Under: broadband, cable tv, competition, content, hollywood, piracy, price hikes, streaming, video

Hollywood, Media, And Telecom Giants Are Clearly Terrified Gigi Sohn Will Do Her Job At The FCC

from the do-not-pass-go,-do-not-collect-$200 dept

Wed, Feb 2nd 2022 01:43pm - Karl Bode

Media and telecom giants have been desperately trying to stall the nomination of Gigi Sohn to the FCC. Both desperately want to keep the Biden FCC gridlocked at 2-2 Commissioners thanks to the rushed late 2020 Trump appointment of Nathan Simington to the Commission. Both industries most assuredly don’t want the Biden FCC to do popular things like restore the FCC’s consumer protection authority, net neutrality, or media consolidation rules. But because Sohn is so popular, they’ve had a hell of a time coming up with any criticisms that make any coherent sense.

One desperate claim being spoon fed to GOP lawmakers is that Sohn wants to “censor conservatives,” despite the opposite being true: Sohn has considerable support from conservatives for protecting speech and fostering competition and diversity in media (even if she disagrees with them). Another lobbying talking point being circulated is that because Sohn briefly served on the board of the now defunct Locast, she’s somehow incapable of regulating things like retransmission disputes objectively. Despite the claim being a stretch, Sohn has agreed to recuse herself from such issues for the first three years of her term.

Hoping to seize on the opportunity, former FCC boss turned top cable lobbyist Mike Powell is now trying to claim that because Sohn has experience working on consumer protection issues at both Public Knowledge and the FCC (she helped craft net neutrality rules under Tom Wheeler), she should also be recused from anything having to do with telecom companies. It’s a dumb Hail Mary from a revolving door lobbyist whose only interest is in preventing competent oversight of clients like Comcast:

“He said it is not clear why those would be the only issues from which she would recuse herself, ?given the breadth of issues in which Public Knowledge was involved? under Sohn. He said the recusal should ?logically extend? to all the matters she advocated for at Public Knowledge, or none.

Second, he said: ?Next, in the more recent years since her service at the Commission during the Obama administration, Ms. Sohn has been publicly involved on matters of direct interest to our membership. There is no logical basis for treating these matters differently from the retransmission and copyright issues for purposes of recusal.”

Facebook, Amazon, and Google all tried similar acts of desperation to thwart FTC boss Lina Khan, suggesting that because she opined on antitrust matters as an influential academic, she was utterly incapable of regulating these companies objectively. But both have a deep understanding of the sectors they’re tasked with regulating. Both are also the opposite of revolving door policymakers with financial conflicts of interest, which you’ll note none of these critics have the slightest issue with.

Of course telecom and big broadcasters aren’t the only industries terrified of competent, popular women in positions of authority. Hollywood (and the politicians paid to love them) are also clearly terrified of someone competent at the FCC. The Directors Guild of America is also urging the Senate Commerce Committee to kill Sohn’s nomination. Their justification for their opposition? Sohn once attempted to (gasp) bring competition to the cable box:

“Hollander pointed to one of the proposals that Sohn championed when she served as counselor to FCC Chairman Tom Wheeler during Barack Obama?s second term. Wheeler and Sohn saw the proposal, introduced in 2016, as a way to free cable and satellite subscribers from having to pay monthly rental fees for their set top box. The proposal would have required that pay TV providers offer a free app to access the channels, but ran into objections from the MPAA, which said it would be akin to a ?compulsory copyright license.? It?s unlikely that the proposal would come up again in that form, as it was sidelined when Jessica Rosenworcel, who now is chairwoman of the FCC, declined to support it.”

You might recall the 2016 proposal in question tried to force open the cable industry’s dated monopoly over cable boxes by requiring cable companies provide their existing services in app form (it wasn’t “free”). You might also recall that the plan failed in part because big copyright, with the help of the Copyright Office, falsely claimed the proposal was an attack on the foundations of copyright. It wasn’t. But the claims, hand in hand with all kinds of other bizarre and false claims from media and cable (including the false claim the proposal would harm minorities), killed it before it really could take its first steps.

I had my doubts about the proposal. Streaming competition will inevitably kill the cable box if we wait long enough, so it would seemingly make sense to focus the FCC’s limited resources on more pressing issues: like regional broadband monopolization and the resulting dearth of competition. But the FCC’s doomed cable box proposal most absolutely was not an “attack on copyright.” Companies just didn’t want a cash cow killed (cable boxes generate about $20 billion in fee revenue annually), and the usual suspects were just absolutely terrified of disruption, competition, and change.

Congress was supposed to vote Sohn’s nomination forward on Wednesday, but that has been delayed because Senator Ben Ray Luj?n suffered a stroke (he’s expected to make a full recovery). Industry opponents to Sohn’s nomination then exploited that stroke to convince Senator Maria Cantwell to postpone the vote further so they could hold yet another hearing. Industry wanted an additional hearing so they can either try to scuttle the nomination with bogus controversies they spoon feed to select lawmakers, or simply delay the vote even further.

We’re now a year into Biden’s first term and his FCC still doesn’t have a voting majority. If you’re a telecom or shitty media giant (looking at you, Rupert), that gridlock is intentional; it prevents the agency from restoring any of the unpopular favors doled out during Trumpism, be it the neutering of the FCC’s consumer protection authority, or decades old media consolidation rules crafted with bipartisan support. It’s once again a shining example of how U.S. gridlock and dysfunction are a lobbyist-demanded feature, not a bug or some inherent, unavoidable part of the American DNA.

These companies, organizations, and politicians aren’t trying to thwart Sohn’s nomination because they have meaningful, good faith concerns. Guys like Mike Powell couldn’t give any less of a shit about ethics or what’s appropriate. They’re trying to thwart Sohn’s nomination because she knows what she’s doing, values competition and consumer welfare, and threatens them with the most terrifying of possibilities if you’re a monopoly or bully: competent, intelligent oversight.

Filed Under: copyright, fcc, gigi sohn, hollywood, michael powell, net neutrality, telcos

Senator Tillis Holds Secret Meeting With IP Maximalists To Discuss A Single US 'IP' Agency

from the that-would-be-a-problem dept

Senator Thom Tillis is chock full of bad ideas about copyrights and patents — mostly focused on making things worse for the public by expanding the monopoly powers granted to patent and copyright holders. So I guess it comes as little surprise that he held a secret meeting that appears to have only been attended by copyright maximalists to talk about trying to merge the Copyright Office into the US Patent & Trademark Office.

In a previously unreported meeting Friday, staffers from the office of Sen. Thom Tillis, the ranking member of the Senate Judiciary Subcommittee on Intellectual Property, met with representatives from across the content industries to discuss consolidating America?s three main IP regulators into one sprawling, catch-all agency.

?I think we could look at the organizational structure and ask questions about what?s the most effective way of doing it,? Tillis told National Journal on Tuesday. ?At the end of the day, I want a fair, predictable, and lean IP apparatus?whether it?s patents, trademarks, copyrights.?

Tillis spokesperson Adam Webb said in a statement that the senator ?hosted initial meetings on creating a unified, independent intellectual-property agency and on how to resolve online copyright piracy.? Webb said 35 participants attended the two Friday meetings, which he stressed were preliminary in nature and not guaranteed to result in new legislation.

It seems weird that, if you were exploring such a thing that you wouldn’t bring in folks outside of the copyright maximalist industries, but apparently that’s of less interest to Tillis?

The idea of “consolidating” the Copyright Office into the PTO has long been a dream for many copyright maximalists — mainly because they’re extraordinarily upset that the Copyright Office is a part of the Library of Congress, and they hate the fact that the Librarian of Congress sometimes wants to actually live up to the mission of making sure that copyright is there to “promote the progress” of learning. They’d much rather it be connected with the USPTO, which is under the Commerce Department and clearly designed to be in the interests of the big companies that control it.

It’s already kind of a travesty that the PTO is one agency for both patents and trademarks, since those two things serve extraordinarily different purposes. Trademarks, again, are supposed to be a form of consumer protection — making sure that when you’re buying something from a certain company, you’re aware of who really made it, and aren’t being tricked into buying a copycat. Patents, on the other hand, are supposed to be (though rarely are) about incentivizing innovation. Copyright is supposed to be for the encouragement of learning. It’s just that over the centuries, certain industries have bastardized all three to pretend that they’re about helping a few giant businesses collect as much monopoly rent as possible. Tillis shouldn’t be helping that.

About the only reassuring quote in the piece comes from Mitch Glazier, who now runs the RIAA, but got his initial job at the RIAA just months after he snuck four words into an unrelated piece of legislation that effectively took away the ability of musicians to get control over their works (enabling the RIAA to have much greater control). In the article, Glazier worries that a consolidated agency would focus too much on patents at the expense of copyrights:

Glazier said his office is ?agnostic? about the notion of a unified IP agency, but noted it could kick off a turf war between the three agencies. He also said a single agency could end up focusing largely on patents?far and away the greatest moneymaker?to the detriment of key copyright issues.

Still, there’s literally no need for this move to happen at all, and I don’t understand why Tillis is exploring the idea, nor why he is holding secret meetings with the copyright industry to try to get their buy in.

Filed Under: copyright, copyright office, hollywood, library of congress, maximalists, thom tillis, uspto
Companies: mpa, riaa

from the hello-1st-amendment dept

Facebook whistleblower Frances Haugen may not have mentioned copyright in her Congressional testimony or television interviews, but her focus on artificial intelligence (“AI”) and content moderation have a lot of implications for online copyright issues.

For the last decade, Hollywood, the music industry and others have been pushing for more technical solutions for online copyright infringement. One of the biggest asks is for Internet companies to “nerd harder” and figure out algorithms that can identify and remove infringing content. They claim content filters are the solution, and they want the law to force that onto companies.

And they have been successful in parts of the world so far. For example, the recent European Union Copyright Directive placed a filtering mandate on internet platforms. Hollywood and the record labels are pushing the U.S. to follow suit and make platforms liable for copyright infringement by users. They want NIST to develop standards for filtering software, and they are using the power of Congress and the U.S. Copyright Office to push for legislation and/or voluntary agreements to create more filters.

There is one huge problem with all of this: the technology does not exist to do this accurately. What the Facebook whistleblower made clear is that even the most sophisticated AI-based algorithms cannot accurately moderate content. They make tons of mistakes. Haugen even suggested that a huge part of the challenge is the belief that “nerding harder” will work. She blamed Facebook’s mantra to solve problems through technology as the main reason they are struggling with content moderation.

Copyright presents a unique context challenge to algorithms. It’s not easy to automatically determine what is copyright infringement and what is not. Even under today’s existing systems, about a third of takedown requests are potentially problematic, requiring further analysis. Most of these erroneous takedowns are done by algorithms. This analysis can be extremely complicated even for the American judicial system – so much so that the Supreme Court recently had to clarify how to apply the four-part fair use test. In court, each fair use case gets a very individual, fact-based analysis. Current AI-based algorithms are not close to being able to do the needed analysis to determine copyright infringement in fair use cases.

So why is there a big push from Hollywood, the movie industry and others on this? They are smart enough to know that algorithmic solutions are not close and may never be able to handle filtering for infringement accurately.

The reason is they do not want filtering technologies to be accurate. They want filtering technologies to over-correct and take anything that might be infringing off the internet. Congress cannot directly legislate such an overcorrection, because it is a clear violation of the First Amendment. But they might be able to introduce legislation that creates a de facto mandatory filtering requirement. Mandatory filtering legislation imposed via changing the Digital Millennium Copyright Act Section 512’s platform liability regime would lead companies to “voluntarily” implement over-correcting filtering solutions — or otherwise face a constant barrage of losing lawsuits and legal bills for any and all alleged infringement by users. And this could create an end run around the first amendment if a court decided that the company was “voluntarily” implementing.

At this point it is important to recognize the types of activity that we are talking about here: transformative works of creativity, pop-art, criticism and parody. This includes teens sharing lip sync TikToks and videos of your little kids dancing to a song. But fair use doesn’t apply to just the creative arts. It also includes collaborative efforts on an internet platform to develop cybersecurity solutions that require reverse engineering and allows teachers to share materials with students on online education platforms. Documentarians depend heavily on fair use, and efforts to distribute documentaries online would face stiff challenges.

All of these important capabilities would be severely at risk if we forced filtering requirements onto internet platforms via threat of liability. If we let Hollywood and music industry elites and the Members of Congress who do their bidding get their way, the rest of America will lose out.

Josh Lamel is the Executive Director of the Re:Create Coalition. This article was originally posted to the Re:Create Coalition blog.

Filed Under: ai, copyright, dmca, dmca 512, filters, hollywood, mandates

Hollywood Lobbyists So Afraid Of Any Public Benefit From 'Intellectual Property' That They're Trying To Block COVID Vaccine Sharing

from the you-did-what-now? dept

Throughout the COVID pandemic, it’s been truly shameful to watch how patent maximalists have tried to insist that we just need more patents to deal with COVID — even though the incredible breakthroughs that brought such quick development of vaccines were not due to patents, but rather the free and open flow of information from a bunch of researchers and scientists who didn’t care about whether or not information was locked up for profit, but did care about saving millions of lives.

And now that we’ve got vaccines, we’re dealing with significant problems in rolling them out around the world — and patents are often in the way, holding that rollout back. And we actually have a way of dealing with that: what’s known as a TRIPS waiver. TRIPS is the Agreement on Trade-Related Aspects of Intellectual Property Rights, which set up a variety of standards among member nations and the WTO regarding intellectual property. I have many problems with TRIPS (and the WTO), but TRIPS does include a process to grant waivers on intellectual property rights. This was in response to (very legitimate!) concerns by less well off nations that rich nations would use the patent system to block access to important life saving medicines.

So, to ease such concerns, the TRIPS agreement includes a process by which the WTO can grant a compulsory licensing regime that will allow others to make patented drugs, and thus increase availability. A key point of this so-called waiver is that it allows for better allocations of certain drugs during medical emergencies. Given that, issuing such a waiver right now seems like a no-brainer. But… it has not been.

India and South Africa put forth a a fairly straightforward waiver request for dealing with COVID-19. The key part of the request is that intellectual property requirements under TRIPS solely in relation to the “prevention, containment or treatment of COVID-19” should be waived during the course of the pandemic. It seems pretty straightforward. Even reliable patent maximalist sites like IP Watchdog are now publishing articles saying that the TRIPS waiver “is a necessary first step towards facilitating increased, rapid production of vaccines” and noting that it won’t undermine the value of innovation in any way.

We’ve already noted that Big Pharma is lobbying against it — which is to be expected. However, what is perhaps less expected is the fact that Hollywood is vehemently lobbying against it as well. Why? Well, they claim that because the waiver is not limited to just patents, it will be used to wipe away copyright as well.

This is… misleading at best. It is true that the waiver would cover copyrights, but only in an extremely limited fashion. As the part I quoted above notes, it only applies to intellectual property protections that are blocking the prevention, containment, and treatment of COVID-19. And, that can include a very limited set of copyrights. For example, there still remain shortages of ventilators in many parts of the world, and early on in the pandemic, people were working on 3D printing replacement parts to help deal with this extreme shortage. However, with some companies issuing threats over these 3D printed parts, there are legitimate concerns that copyright could be used to shut down such operations. Another area where a copyright waiver is likely to help is in allowing researchers easier access to important scientific journals and research that may help them develop more and better solutions.

As if to make Hollywood calm down, South Africa and India included an explicit statement in the waiver request to say that the waiver cannot be used for entertainment products: “The waiver in paragraph 1 shall not apply to the protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations under Article 14 of the TRIPS Agreement.” That’s literally the 2nd paragraph in a four paragraph waiver request. Already, it’s kind of insulting that officials crafting this waiver request in an attempt to save lives had to waste time making sure that Hollywood wouldn’t get angry at them.

And even then it didn’t work.

The Motion Picture Association, which represents major movie and television studios, deployed five lobbyists to influence Congress and the White House over the waiver. The Association of American Publishers as well as Universal Music have similarly revealed that they are actively lobbying against it.

Neil Turkewitz, a former Recording Industry Association of America official, blasted the proposal on Twitter, claiming it will harm musicians, performers, and other cultural workers who are already struggling.

?As COVID has undermined the livelihoods of creators around the [globe emoji], you want to further expand their precarity?in the name of justice?? Turkewitz wrote.

The Turkewitz quote is particularly disgusting. There is nothing in the waiver that will harm the livelihood of creators. Indeed, getting the world vaccinated is how we bring things back to normal to help open up the world to help those musicians, performers, and other cultural workers survive. For him to even suggest that this waiver somehow harms them is not just disinformation, it’s disinformation that will kill people. It’s disgusting.

And the lobbying by Hollywood goes beyond just what was reported in the above linked Intercept article. ITIF, the Information Technology and Innovation Foundation, which may sound like a think tank that is focused on the tech industry, but which has long had close ties to Hollywood (and, indeed, an ITIF paper was the basis for the terrible SOPA/PIPA laws a decade ago), recently came out with a laughably ridiculous attack on the waiver, claiming that there’s no possible way copyrights should be included in it:

This latest affront to IP rights is, to say the least, ill-placed, if not misinformed. There is simply no compelling reason to focus on the suspension of copyright in this case.

Oh come on. People are fucking dying and this is the fight you want to have? It’s not “suspension of copyright” that people are asking for. They’re asking for a narrowly tailored, specific exemption to excessively restrictive copyright solely in cases where that exception is needed to help fight COVID. The idea that it is “ill-placed” or “misinformed” is pure propaganda.

And then, just as I was putting the finishing touches on this article, Senator Thom Tillis, who has made it clear that his main goal in the Senate is to push for Hollywood’s extremist interests, wrote up one hell of an oped against the waiver. It is chock full of nonsense.

Yet, waiving intellectual property rights abroad would not hasten the end of COVID-19. It would harm our domestic IP industries, hand India and China valuable government-supported research free of charge and weaken the global IP system for decades to come. Just last week, in remarks before the Intellectual Property Owners Association (IPO) Spring Summit Daren Tang, Director General of the World Intellectual Property Organization (WIPO), stated that a strong intellectual property ecosystem was primarily responsible for allowing COVID-19 vaccines to ?be brought to people in the fastest time in history.? I wholeheartedly agree…

First off, it wouldn’t “harm” any domestic industry. That’s nonsense. And if the research is for saving lives and (as Tillis states) was “government-supported” then it should be freely available to anyone. Government supported research means that the public paid for it and it should be widely available to anyone.

Second, just because a long time advocate of patent and copyright maximalism says something, doesn’t automatically make it true. There is no evidence whatsoever that “strong intellectual property… was primarily responsible for allowing COVID-19 vaccines” to come about. Indeed, the stories about how the vaccines were developed show the opposite. They show how the free flow of information and ideas among researchers and scientists around the globe, and them agreeing to work together, rather than trying to lock up ideas, is what helped make it possible.

I can understand pharma companies fighting against it, even if that alone is disappointing given the situation. That Hollywood and its friends are flat out lying about it and creating a moral panic, claiming this will somehow hurt the creative industries, is dangerous disinformation.

Filed Under: copyright, covid, health, hollywood, intellectual property waiver, patents, vaccines, wto

AT&T, HBO Put Another Bullet In Antiquated Theatrical Release Windows

from the inevitability dept

Mon, Dec 7th 2020 05:58am - Karl Bode

Among the dated and dumb business concepts exposed as folly during the pandemic is the traditional Hollywood film release window, which typically involves a 90 day gap between the time a move appears in theaters and its streaming or DVD release (in France this window is even more ridiculous at three years). The goal is usually to “protect the traditional film industry,” though it’s never been entirely clear why you’d protect traditional theaters at the cost of common sense, consumer demand, and a more efficient model. Just because?

While the industry has flirted with the idea of “day and date” releases for decades (releasing movies on home video at the same time as brick and mortar theaters), there’s long been a lot of hyperventilation on the part of movie theaters and traditionalists that this sort of shift wasn’t technically possible or would somehow destroy the traditional “movie experience,” driving theaters out of business.

The pandemic has changed everything. To the point where AT&T/HBO this week announced that the company’s entire lineup of 2021 films will be released on the company’s streaming platform (HBO Max) the same time it hits theaters. There are some caveats: it’s a one year trial, and movies will only appear on HBO Max for a month before they disappear (though they may return later). You’ll also probably pay far more to watch these movies than it’s worth. But it’s still a sensible shift given the circumstances, as Warner Brothers (AT&T) made clear it a statement:

“We’re living in unprecedented times which call for creative solutions, including this new initiative for the Warner Bros. Pictures Group,” said Warner Bros. CEO Ann Sarnoff. “No one wants films back on the big screen more than we do. We know new content is the lifeblood of theatrical exhibition, but we have to balance this with the reality that most theaters in the U.S. will likely operate at reduced capacity throughout 2021.”

Yes, it sucks for those whose livelihoods rely on traditional brick and mortar theaters. But these are the same theaters that saw the writing on this particular wall long before COVID came to town, and decided to spend much of their time pouting instead of adapting for the inevitable. Even then, traditional theaters will someday bounce back, buoyed by those who feel a trip out to the movies is an essential cornerstone of everyday life. It’s just not going to be until vaccines are commonplace and congregating indoors for prolonged periods is no longer a potential death sentence.

This isn’t exclusively about the pandemic, of course. AT&T has been losing traditional TV and streaming subscribers hand over fist after a bunch of expensive mergers, branding confusing, and other executive incompetence. They’re running behind giants like Netflix and others, and want the added attention. Scuttlebutt also suggests the company is hoping to use the announcement to pressure Roku into carrying HBO Max and ending their longstanding feud:

Either way, it’s another step in the right direction toward no longer embracing antiquated concepts like release windows that no longer make sense in the broadband era. This being AT&T there’s almost certainly going to be dumb caveats tied to these releases (ridiculous pricing probably being among them), but baby steps and all that.

Filed Under: day and date, hbo max, hollywood, movie theaters, release windows, streaming
Companies: at&t, hbo