movies – Techdirt (original) (raw)

Ex-Moviepass CEO Admits To Lots Of Fraud

from the too-good-to-be-true dept

Back in 2022, you might recall that ex-Moviepass executives Theodore Farnsworth and J. Mitchell Lowe were charged by the DOJ for wire and securities fraud, after it was found they’d repeatedly misled investors about the profitability of their “all you can eat” movie ticket efforts.

Lowe this week pleaded guilty to a securities fraud conspiracy to bilk company investors out of hundreds of millions of dollars. Farnsworth is set to go on trial next week. For what it’s worth, Lowe’s cooperation with investigators is expected to get him a lighter sentence, and his lawyers claim he feels really bad about the whole thing:

“Mitch is a good man who is looking to move forward with his life,” said his attorneys, Margot Moss and David Oscar Markus, in a statement. “He has accepted responsibility for his actions in this case and will continue to try to make things right.”

Originally, the MoviePass business model seemed like a semi-sensible idea, though back in 2012 we were quick to wonder if it would ever actually make a profit. Under the model, users paid $30 a month in exchange for unlimited movie tickets at participating theaters, provided they signed up for a full year of service.

There were, of course, caveats: you could only buy a ticket per day, and could only buy one ticket per movie. It also prohibited users from viewing 3D, IMAX, or XD films. Still, the proposal was widely heralded by many media outlets as a savior for the traditional, brick and mortar, sticky-floor movie industry. The problems really began when the company lowered its monthly price to $10 to goose growth.

In 2019, a four-month investigation by Business Insider found that MoviePass had been bleeding money for years, and misleading investors for much of that time. Not only was the idea never really profitable, the company couldn’t even manage to acquire enough plastic to keep up with membership card demand. All the while, company execs were wasting money on lavish parties and nonsense.

Showcasing the width and depth of the dodgy effort, at one point Farnsworth and Lowe genuinely thought it would be a good idea to actually change user passwords so paying customers couldn’t use the service, thinking this would let them get their head above water. Things… didn’t work out.

If you haven’t seen it yet HBO (Max) has a decent documentary on the collapse, illustrating how original concept creator Stacy Spikes (who has since relaunched the effort) was generally screwed by Lowe’s and Farnsworth’s mindless, ethics-optional rush toward impossible scale.

Filed Under: doj, ethics, fraud, j. mitchell lowe, movie theaters, movies, theodore farnsworth, wire fraud
Companies: moviepass

Trump’s Movie Meltdown: A Teachable Moment For Free Speech

from the things-are-not-always-so-simple dept

Donald Trump getting mad at an unflattering portrayal of himself in a movie isn’t that interesting. But how that anger may make people rethink laws against AI recreating real people and the Citizens United case, highlights how gut reactions to these laws may lead people astray.

At Cannes Film Festival, journalist Gabriel Sherman’s independently produced biopic about Donald Trump called “The Apprentice” covers Trump’s rise to fame. The audience gave it a standing ovation, but it didn’t win any awards at the show. There’s also some controversy, as some of the funding came from Trump supporter Dan Snyder, a generally terrible person who’s upset about the film’s portrayal of Trump.

The bigger controversy comes from Donald Trump himself, who sent a cease-and-desist letter to the film’s producers, claiming the film is somehow both defamatory and “direct foreign interference in American elections.” Variety and Business Insider claim to have access to the cease-and-desist, but neither posted it, because they’re both bad at the basics of journalism.

There’s a Streisand Effect here (attempts to suppress the film seem only likely to drive more attention), but what struck me is that (1) it’s happening alongside debates about outlawing AI depictions of real people and (2) it’s reminiscent of the widely misunderstood Citizens United v. FEC case.

Many well-meaning people support the idea of a law to prevent anyone from using AI to represent someone else. However, this would also restrict normal creative output, including parodying famous people or creating critical movies about real people, like The Apprentice.

Historically, films about real people have been allowed, resulting in movies like Oliver Stone’s W. film or the movie about sexual harassment at Fox News, Bombshell. For various reasons, it should be fine to create such a film and take this kind of artistic license under the First Amendment.

The same would apply if filmmakers wanted to use new technologies, like generative AI, to make films more realistic. There may be limitations, such as publicity rights, but it should be severely limited to situations where someone might be misled into thinking the real person depicted in the film endorsed it when they hadn’t. But that’s clearly not the case with “The Apprentice.”

That said, this also takes me back to the Citizens United case, which many falsely think established the idea that “money is speech.” That’s not true. Earlier cases had established that money can be a form of expression.

Citizens United was much more narrowly focused on independent expenditures allowed in elections, specifically about a movie about Hillary Clinton called “Hillary: The Movie.” The film was initially found to violated “electioneering communication” restrictions. The Supreme Court found this result problematic under the First Amendment.

If Citizens United had gone differently, Trump might have a stronger argument against “The Apprentice.” But with that decision in place, it’s not clear that he could stop the film, especially for “direct foreign influence” on our elections.

There was more involved in Citizens United, including just how broad the eventual decision was, but at its heart, it was always a case about whether an unflattering movie about a presidential candidate could be shown close to an election.

I raise these issues because people often judge policy questions based on the complainant and benefits, rather than considering wider implications. In cases of laws preventing a depiction of a famous person without approval and creating films about a candidate close to an election, we should consider the larger picture of free expression, rather than favoring a candidate or party. The same situation may favor a candidate you support, and reveal important details about a candidate you don’t.

Filed Under: biopic, donald trump, election interference, gabriel sherman, movies, the apprentice

The Sky Is Rising 2024 Edition: Rather Than Destroying Culture, The Internet Has Saved The Content Industries

from the the-sky-is-rising dept

Read the latest edition of The Sky Is Rising at The Copia Institute »

Twelve years ago, we released our very first research report, the Sky is Rising. Back then, in 2012, the commonly accepted wisdom was that the internet was killing various creative industries, from the music industry (especially!) to movies, TV, and books among other things. This didn’t seem to match with the world that we were seeing, so we dug into all the data (and, wherever possible, sought to use the industry’s own numbers) and found that while some industries were struggling to adapt to the internet, the data actually showed that the sky was rising, not falling.

We found that more content than ever before was being created (though not all through traditional channels). We found that people were engaging with more content than ever before. And, contrary to the narrative spun by some legacy industries, we saw that people were more than willing to spend money on content. They were just focused on having it be convenient and accessible where they wanted it to be.

Over the years with support from CCIA, we released additional editions of the Sky is Rising report via our think tank The Copia Institute, but our last one was five years ago in 2019, before the COVID pandemic. Last year we set out to revisit not just the data, but the structure of the whole report. The process took almost the entire year, but we’re excited to release our latest edition of The Sky is Rising.

In the original report, a decade ago, we were focused just on countering the misleading narrative that the internet was killing the creative industries. Not only is that myth dead and buried, the latest report suggests quite the opposite: that the internet has saved those industries and basically become the lifeblood of all creative industries.

Throughout the report what we saw time and time again is that the growth in these industries is happening because of the internet. It’s making it easier than ever to create, to share, to distribute, to promote, to sell, and to engage. Creativity is thriving, and much of it is entirely due to the internet.

Indeed, we saw this most directly in industries most heavily impacted by COVID. One of our concerns going into this report was looking at how the pandemic impacted things, and the data certainly confirmed that some industries had huge problems: namely live music and movie theaters. But, in both cases, the amazing thing that the data showed was how the internet rushed in to fill the void, providing new ways to experience content that traditionally had required performance spaces, helping to tide things over during the periods of lockdowns, and then easing the rebound after lockdowns loosened.

The internet helped spare those industries, and helped billions of people around the globe continue to engage with and experience wonderful art, even in the midst of a global pandemic.

Over and over again we saw examples of the internet helping these industries out. The most stark and clear example is the recording industry (which, as a reminder, is just one segment of the music industry). This was always Exhibit A for an industry supposedly being destroyed by the internet. Except, just as we saw, with the ability to create more music, distribute it, and enable more convenient access to everyone, the business models have sorted themselves out, and now the internet is responsible for the industry reaching new highs.

On the video side of things, while COVID took a huge bite out of the box office, when lumped together with digital streaming, the larger market for video basically has continued to grow.

For what it’s worth, that chart highlights a change we made with this year’s report. Ever since the original edition, we had been combining movies and TV into a single “video” section. This turned out to be prescient as the line between movies and TV started to blur quite a bit during the streaming era. As we were putting together this year’s report, we started to lean in on this thinking, and we retitled the sections and expanded a few. In the old reports, we covered Music, Video, Books, and Video Games. This year, we have switched it to the activity involved: Listening, Watching, Reading, and Playing. This allowed us to expand some of these categories, and slot in some newer things like TikTok videos, digital magazines, and podcasts.

Also, we’ve added a “mini-chapter’ on AI. We’re way too early into the generative AI world to have that much data on what it means for creativity and the creative industries. However, from what we’re seeing, it feels like “generative AI” is taking on the misleading role that “the internet” had in the early 2000s, of a new technology that some are predicting will destroy certain industries. And, while it’s early, what we’re seeing is (again) quite the opposite. AI has all the makings of an incredible tool to help people be even more creative and to create more wonderful works that people will enjoy.

There’s a lot more in the full report, which weighs in at 80 pages, chock full of details, charts, and graphs. But the key takeaway from it should be that the story from the early 2000s about how the internet was going to kill the creative industries and creators was not only wrong, it had everything backwards. The internet has been a huge boost to the creative industries, opening up new ways for people to create, to distribute, and to engage with content of all kinds.

The sky is truly rising, not falling. And, we should keep that in mind as we live through yet another apparent moral panic about the next “threat” to these industries.

Read the latest edition of The Sky Is Rising at The Copia Institute »

Filed Under: books, copyright, creativity, culture, internet, movies, music, reading, sky is rising, tv, video games

Piracy Is Surging Again Because Streaming Execs Ignored The Lessons Of The Past

from the doomed-to-repeat dept

Wed, Jan 10th 2024 05:31am - Karl Bode

Back in 2019 we noted how the streaming sector risked driving consumers back to piracy if they didn’t heed the lessons of the past. We explored how the rush to raise rates, nickel-and-dime users, implement arbitrary restrictions, and force users toward hunting and pecking their way through a confusing platter of exclusives and availability windows risked driving befuddled users back to piracy.

And lo and behold, that’s exactly what’s happening.

After several decades of kicking and screaming, studio and music execs somewhere around 2010 finally realized they needed to offer users affordable access to easy-to-use online content resources. They finally realized they needed to compete with piracy and focus on consumer satisfaction whether they liked the concept or not. And unsurprisingly, once they learned that lesson piracy began to dramatically decrease.

That was until 2021, when piracy rates began to climb slowly upward again in the U.S. and EU. As the Daily Beast notes, users have grown increasingly frustrated at having to hunt and peck through a universe of different, often terrible streaming services just to find a single film or television program.

As every last broadcaster, cable company, broadband provider, and tech company got into streaming they began to lock down “must watch” content behind an ever-shifting number of exclusivity silos, across an ocean of sometimes substandard “me too” services. Initially competition worked, but as the market saturated and the most powerful companies started to silo content, those benefits have been muted.

Now users have to hunt and peck between Disney+, Netflix, Starz, Max, Apple+, Acorn, Paramount+, Hulu, Peacock, Amazon Prime, and countless other services in the hopes that a service has the rights to a particular film or program. When you already pay for five different services, you’re not keen to sign up to fucking Starz just to watch a single 90s film. And availability is constantly shifting, confusing things further.

We warned that was going to be a problem back in 2019, and it’s happening exactly as predicted, creating widespread consumer confusion and a growing desire for simplicity:

“The streaming industry has to converge towards a system where consumers can watch pretty much everything they like for an affordable price,” TorrentFreak editor Ernesto Van der Sar said. “That sounds straightforward, but in an industry that’s built around licensing silos with billions in revenue at stake, that’s easier said than done.”

The Daily Beast article focuses heavily on the annoyance of international licensing restrictions, and fails to meaningfully address the numerous other reasons piracy is on the rise again.

Mindless megamergers have made many streaming services shittier, more expensive, and harder to use (Max is the poster child for this phenomenon). In a bid to please Wall Street, streaming giants have shifted away from trying to make users happy, and toward obnoxious nickel-and-diming efforts, whether it’s Netflix’s password sharing crackdown or Amazon’s decision to charge users paying $140 a year even more money every month just to avoid ads that didn’t exist previously.

As every corporation does eventually, they’ve shifted from innovative, consumer-friendly efforts to lure in new users, to obnoxious turf protection efforts focused on steadily exploiting existing users.

The underlying problem, as usual, is Wall Street’s unyielding, often myopic desire for improved quarterly returns at any cost. It’s not enough to provide a high quality, profitable service that people like. The need for improved quarterly returns ultimately results in companies cannibalizing their own products and brands in order to appease this need for relentless growth. Even if it harms longer term company health.

The end result is higher prices, layoffs, shittier product quality, worse customer service, weird restrictions, and no limit of new annoyances. It also contributes to an unyielding desire among executives for mindless consolidation in a bid to hack this broken system, nab some tax breaks, and create the illusion of meaningful “synergistic” growth and progress (again, see Max).

Cory Doctorow’s recently popularized term for this age-old phenomenon is “enshittification,” and it’s everywhere you look.

It’s possible to disrupt this downward cycle but it involves doing all the sorts of things large corporations don’t want to do, like reducing insane executive compensation, accepting antitrust reform, prioritizing customer service, paying creatives, not wasting your money on dumb shit like Netflix-themed restaurants, and (gasp) taking a small financial hit in order to retain users and maintain product quality.

So there’s very little indication any of these problems are going to slow down. Consumers are going to be forced to pay higher and higher rates for increasingly deteriorating services, to the point where piracy is going to become an increasingly alluring value proposition. And when that happens, you can be absolutely, indisputably assured that executives will blame absolutely everything but themselves.

Filed Under: antitrust, bittorrent, cable tv, enshittification, films, movies, piracy, streaming, video

What Will Be The Impact Of The AI & Streaming Data Language In The New WGA Contract?

from the consequences dept

As you’ve likely heard, earlier this week the WGA worked out a tentative agreement with the Alliance of Motion Picture and Television Producers (AMPTP) on a new contract that ended their months-long strike. By all accounts, this looks like a big win for the WGA, which is fantastic and long overdue.

The AMPTP seemed to recognize it had no leg to stand on and seemed to hope that its best strategy was to “wait out” the writers. That doesn’t appear to have worked very well. The new pay rates and guarantees seem like a big win for writers. The WGA negotiating team appears to have done a fantastic job on those fundamental negotiating points, and it’s a clear (well deserved) win for the writers.

Throughout the strike there was a lot of attention paid to the AI demands (perhaps even more attention was paid to that than the underlying economic questions), and I’m not quite sure how I feel about where things came down on that front.

As some have pointed out, in the end, the AI agreement can be read as a near complete capitulation to the writers, as it says that the producers can’t use AI to write a basic script and then hand it off to a human writer at a lower payscale to clean up. However, it does (and this is a really good thing) allow the writers themselves to figure out how to make use of AI for themselves as a productivity tool, which… makes sense. Empower the writers to figure out if it’s a useful tool, rather than thinking that the AI is going to produce anything worthwhile on its own.

One interpretation of all of this is that somewhere in the ~150 day strike, the producers had enough time to play around with AI and realize that it just isn’t able to replace writers like they appeared to hope it would do originally. As we pointed out here, though, AI can be a super useful tool in the writers hands to avoid having to deal with the drudgery part of the job, allowing them to spend more time on the actual creative act of writing. And so the framing of the agreement, at least, where it’s about empowering the writers to use the tools where necessary seems good.

But there was something that bugged me about the language of it, which writer/director/actor (and Techdirt podcast guest) Alex Winter points out in a new Wired piece: while the agreement is framed in a way that seems beneficial to the writers, it requires them to really trust the studios, as there appear to be lots of ways that they might get around what’s in the agreement. And the producers aren’t necessarily the most trustworthy folks out there. As Alex notes, the studios had been experimenting with AI prior to this and he’s not sure if they’ll just drop those initiatives. It might just be that they won’t tell writers what the AI did.

It’s hard to imagine that the studios will tell artists the truth when being asked to dismantle their AI initiatives, and attribution is all but impossible to prove with machine-learning outputs.

The other tidbit that a lot of people are celebrating is the agreement that streaming platforms will now share specific data on “the total number of hours streamed,” which has mostly been a secret. This was another big demand of the writers, mainly as part of their effort to get some sort of residuals setup going for streaming.

But, as a very interesting episode of the Search Engine podcast recently discussed, in the early days of streaming, the fact that streaming platforms didn’t share viewer data was seen as a benefit to many writers/actors/directors. It meant that they weren’t competing over numbers all the time, and weren’t focused on making something that would appeal to the widest possible audience.

That meant that a much wider variety of content was greenlit for some of those platforms, as they (especially Netflix, but also Amazon) wanted to have a really diverse set of creative shows and movies to entice people to pay the monthly subscription fee to see whatever they wanted. In that scenario, the specific numbers for any particular movie or show don’t matter as much, so long as there was enough diverse content available on the platform that it made users feel comfortable coughing up their monthly subscription fee. Indeed, that actually created incentives for more niche, quirky, diverse, wacky, experimental content, with no one ever needing to be concerned with “how is it performing?”

So, there is some reasonable fear that now that they will have to share the viewer data (privately to the WGA, not publicly), that could change. The incentive structure gets messed up a bit. There will be more incentives to create mass market content, and less ability to just create cool, different content that might appeal to a niche audience enough to get people to sign up for the monthly payment.

Now, a (reasonable!) retort to that is that the “we need all this diverse content!” made sense in the early landgrab days, but perhaps makes a lot less sense with the streaming market reaching some sort of saturation level where users are beginning to bail, and Wall St. is demanding more profits and less investment out of these platforms. If we’re already seeing streaming platforms pulling shows off the platforms for the tax breaks, perhaps this move away from supporting the weird and the wacky and the diverse was already going away no matter what.

Overall, though, it’s nice to see the writers get a strong contract that improves the underlying economics in ways that are important to their ability to make a living writing. I’m less sure that the AI language will be that impactful, though, and I’m curious to see how the incentives on the streaming side play out.

The one other bit I’m curious about: I’m kind of wondering if this experience will cause writers/actors/directors to increasingly look to route around the producers. Yes, for big productions they’re still necessary, but as tools for high quality moviemaking become increasingly cheaper and more widely accessible, I’m wondering if we’ll see a rise in more high quality self-produced works (or community produced works) that are then streamed not through the big subscription services, but elsewhere (YouTube, obviously, but it wouldn’t surprise me to see services like a “Substack-for-video” kind of thing pop up at some point).

After all, the producers can’t screw over the actual creative folks… if they’re not involved any more.

Filed Under: ai, data, incentives, movies, production, streaming, writers, writers strike
Companies: amptp, wga

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 Don’t Own What You’ve Bought: Sony Removes 100s Of Movies Bought Through PS Store

from the poof!-it's-gone dept

We have done many, many posts explaining how, unfortunately, it seems the idea of a person owning the things they’ve bought has become rather passe. While in the age of antiquity, which existed entire tens of years ago, you used to be able to own things, these days you merely license them under Ts and Cs that are either largely ignored and clicked through or that are indecipherable, written in the otherwise lost language known as “Lawyer-ese”. The end result is a public that buys things, thinks they retain ownership over them, only to find out that the provider of the things alters them, limits their use, or simply erases them from being.

Take anyone who bought a movie distributed by StudioCanal in Germany and Austria through Sony’s Playstation store, for instance. Sony previously had a deal to make those movie titles available in its store, but declined to continue offering movies and shows in 2021, stating that streaming services had made the deal un-competitive.

Sony’s PlayStation group stopped offering movie and TV show purchases and rentals, as of Aug. 31, 2021, citing the rise of streaming-video services. At the time, Sony assured customers that they “can still access movie and TV content they have purchased through PlayStation Store for on-demand playback on their PS4, PS5 and mobile devices.

And when Sony said that, it apparently forgot to add two very important words to its statement: “for now.” Instead, Sony decided to drop the bomb with yet another statement regarding StudioCanal content in Germany and Austria. It essentially amounts to: hey fuckers, that shit you bought is about to disappear, mmkay bye.

“As of August 31, 2022, due to our evolving licensing agreements with content providers, you will no longer be able to view your previously purchased Studio Canal content and it will be removed from your video library,” the notices read. “We greatly appreciate your continued support.”

Poof, it’s gone! That remark about appreciating the public’s “continued support” seems more like begging than acknowledging reality. Especially once you start asking the questions that immediately leap to mind.

For example: will customers get a refund for the movies that they bought and now can’t access? As per the source article “it’s unclear”, which likely means “hahahahaha nope.” How many movies were delisted? Literally hundreds. Are these just small-time movies? Nope, they include AAA titles like The Hunger Games and John Wick.

And so a whole bunch of people are going to find out that they didn’t buy anything, they rented some movies for a previously indefinite period of time that just became definite, long after the purchase was made. It’s hard to imagine something more anti-consumer than that.

Filed Under: copyright, licensing, movies, ownership, playstation, purchase
Companies: sony, studiocanal

I Feel The Need… The Need To File Frivolous Copyright Lawsuits To Cash In On Top Gun

from the also,-for-speed dept

Could Paramount Pictures have actually lost the copyright to Top Gun, even as it was releasing a new Top Gun movie? That’s the claim in a new lawsuit that goes pretty deep into the copyright weeds, touching on two ridiculous topics that we like to write about on Techdirt: termination rights and movie rights.

For many years now, we’ve talked about the confusing mess that is copyright termination rights. The whole concept behind them is a bit bizarre, and it’s sort of an attempted escape valve to try to justify why copyright terms are so ridiculously long and why most copyrights are forced out of the hands of actual creators into giant intermediaries like record labels or movie studios. The idea behind termination rights, in theory, is that it allows the actual creator to reclaim the copyright after 35 years.

Of course, for decades now, the legacy copyright industry, which has benefited so much from never-ending copyright combined with their ability to strong arm young and innocent creators into handing over their copyrights, has been fighting against termination rights, trying to make them impossible to exercise, and playing other sketchy games (the biggest such game, of course, was back when the current CEO of the RIAA was a congressional staffer, and snuck a few words into an unrelated bill in the middle of the night in order to strip musicians of their termination rights — something to remember every time the RIAA pretends its sticking up for artist rights).

Anyway, in most termination rights fights, there is no one to cheer for. The whole thing tends to be a lame money-grab on all sides, though in most cases, I’d rather the actual creator end up with the copyrights. The lawyer who has probably done the most to exercise termination rights for creators is Marc Toberoff, who we’ve written about a few times before. And when he teams up with the former Chief Judge of the 9th Circuit, Alex Kozinski, to file a lawsuit, you should probably take it seriously.

And that’s why I’m kind of shocked that the lawsuit here… is… so weak.

The lawsuit in question, as first highlighted by Eriq Gardner at Puck News, is a claim by Shosh and Yuval Yonay against Paramount Pictures, to argue that the new Top Gun movie is a copyright violation. The history of this case is a bit involved. In 1983, Ehud Yonay wrote an article called “Top Guns” for California magazine. The story was about a naval training base where Navy pilots were trained. Shosh is Ehud’s widow. Yuval is their son. So this is yet another one of these lawsuits in which the heirs of an artist are trying to cash in. Anyway, Ehud wrote the article, and the article got some attention.

Paramount then licensed the story and used that as part of the basis for the popular, highly quotable to an annoying degree, 1986 film “Top Gun” starring Tom Cruise, Kelly McGillis, Val Kilmer, Anthony Edwards and a bunch of others.

So, here we get into the issue of movie rights. As we’ve discussed, they’re sort of a bizarre subspecies of copyright. You cannot copyright facts. And most movies based on magazine articles don’t actually copy any of the copyright protected prose of the article. And so “movie rights” is really just a kind of insurance policy. It tends to do two things: (1) prevent the original article writer from making a stink about how unfair it all is, and (2) possibly, though not always, getting the writer to at least help out a bit on the movie story to make sure it makes sense. And that’s it. There isn’t much in the way of actual “rights” involved, because the movies rarely have much to do with the actual material that is covered by the copyright.

And, indeed, that appears to be the case with the “Top Guns” story, which was not about Maverick and Goose, but as the complaint itself points out, two actual pilots with totally different nicknames.

Rather than focusing merely on the dry historical details of the training school, the Story focuses on the pilots (the “Top Guns”) and their personal experiences, singling out two in particular, a hotshot pilot (“Yogi”) and his radio intercept officer (“Possum”), as they are hammered into a team. It skillfully selects accounts of the pilots’ personal lives and precise details of their “hops” (flight maneuvers) to construct a romanticized, first-hand experience of what it is like to be a member of an elite Navy fighter squadron.

So, let’s be clear here. Nowhere is it even suggested that the original movie even copied much from the original article. The name was slightly different, but the characters were very different. And while the complaint notes that both the story and the movie gave “accounts of the pilots’ personal lives” and “precise details of their ‘hops,'” note that the complaint does not suggest that the accounts in the movie copied any of the copyright protected content of the original story. Instead, they just presented a similar concept and idea, but as we keep pointing out — and as Kozinski damn well knows — you can only copyright the specific expression, not the idea.

To try to get around this astounding level of weakness in the case Toberoff and Kozinski argue, fairly weakly for two such lawyers, that the movie is a “derivative work” of the original story. And, then, that the new Top Gun: Maverick movie is a derivative work of the first movie. And… then that a few years back, when the termination period opened up, the Yonay’s terminated the copyright assignment they had originally granted Paramount for the original movie.

Of course, this also gets to another mess in copyright law that we love to cover: the mess of derivative works. Derivative works sometimes mess up the whole idea/expression issue, because often a “derivative work” is not a copy of any of the actually protected parts of the original work. But… um… usually it’s more than this. Usually it involves at least characters that the author can claim were covered by copyright.

Here, there’s none of that. There isn’t even an attempt to argue that anything was actually copied. There’s just a bunch of handwaving, which looks really bad for both Toberoff and Kozinski, and from whom I’d expect better. At best, this feels like something of a shakedown to just try to get Paramount to pay up to avoid embarrassment. At worst, this feels like a crapshoot lawsuit from the two lawyers, hoping they can somehow get this in front of a jury to razzle dazzle them with claims about big bad Hollywood “stealing” from this poor family.

These are big time lawyers who know what they’re doing, but it seems like a ridiculously weak lawsuit, and little more than an attempt to cash in on the new movie.

Filed Under: alex kozinski, copyright, derivative works, ehud yonay, idea expression dichotomy, marc toberoff, movie rights, movies, sequels, shosh yonay, termination rights, top gun, yuval yonay
Companies: paramount pictures

Torguard Blocks All U.S. BitTorrent Traffic After Entertainment Industry Lawsuit

from the whac-a-mole dept

Wed, Mar 16th 2022 01:43pm - Karl Bode

Over the last few years, the entertainment industry and big copyright have ramped up a war against VPN providers here in the U.S., culminating in a lawsuit against VPN provider Torguard by nearly two-dozen movie studios. The same studios had demanded $10 million in damages from another VPN provider, LiquidVPN, earlier last year.

In both cases the accusations are the same: that the companies are encouraging copyright violations because some users use VPNs to disguise the trading of files over BitTorrent (helping them dodge both ISP and entertainment industry monitoring and DMCA warnings).

Of course not all VPN users are using BitTorrent to seed and distribute copyrighted files, but in fights like these, nuance is generally the first casualty. Giant files, including a significant amount of data being shared by the Internet Archive, are also routinely traded on the network.

Torguard has announced in a statement on its website that it will be blocking all BitTorrent traffic on its servers and network in the U.S. starting immediately. 90 percent of the statement involves trying to assuage consumers about the company’s reputation in the wake of the decision:

Operating a VPN provider requires a great deal of trust from consumers and for that reason TorGuard’s owner and parent company make no effort to hide behind offshore entities. We operate transparently within the USA as it offers our clients the strongest consumer privacy protections with no mandatory data logging requirements. TorGuard’s customer base has never been sold or acquired and after ten years in business we are still managed by the original founder who is willing to stake their personal reputation on every decision the company makes.

VPN Unlimited and VPN.ht also recently agreed to block all BitTorrent traffic on U.S. servers after industry pressure.

Bleeping Computer was the first to notice that the company had struck a settlement with the studios. Given that studios have been demanding that VPN providers log and store user traffic behavior, Torguard’s clearly worried the decision will cause an exodus of customers who specifically use a VPN to avoid being tracked for reasons that often go beyond copyright infringement.

Granted Torguard still operates VPN servers in over 50 countries, so users who were previously using U.S.-based Torguard servers can presumably just connect to any one of those instead, albeit with a likely performance hit. The company had filed a motion to dismiss the case with a Florida court last October.

Filed Under: bittorrent, copyright, lawsuit, movies, network, piracy, vpn
Companies: torguard

WarnerMedia Sued For Giving People Want They Wanted (The Matrix, Streaming) During An Historic Health Crisis

from the oh-no,-not-what-people-want dept

Wed, Feb 9th 2022 09:37am - Karl Bode

AT&T got a lot wrong (and still really can’t admit it) with the company’s $86 billion acquisition of Time Warner. There were endless layoffs, a steady dismantling of beloved brands (DC’s Vertigo imprint, Mad Magazine), all for the company to lose pay TV subscribers in the end.

But the one thing the company did get right, with a little help from COVID, was its attacks on the dated, pointless, and often punitive Hollywood release window. Typically, this has involved 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). Generally, this is done to protect the “sanctity of the movie going experience,” as if for thirty years the “sanctity of the movie going experience” hasn’t involved sticky floors, over priced popcorn, big crowds and mass shootings.

During COVID, big streamers like AT&T and Comcast shifted a lot of their tentpole films (like Dune) directly to streaming, which technically saved human lives, but resulted in no limit of raised eyebrows and scorn among the “Loews at the mall is a sacred space you can’t criticize” segment of Hollywood. You might recall that AMC Theaters was positively apoplectic when Comcast showed that release windows were a dated relic, declaring it would never again show a Comcast NBC Universal picture anywhere in the world if Comcast kept threatening the sacred release window (the threat lasted about a week).

WarnerMedia (in the process of being spun off by AT&T) has faced similar whining from the industry. This week the company was hit with a lawsuit (pdf) by Village Roadshow Films, which claims the company “rushed” the release of The Matrix Resurrections from 2022 to 2021 as part of an (gasp) effort to boost streaming’s popularity. All through 2021, AT&T/Time Warner released films simultaneously in theaters and on streaming to boost HBO Max subscriptions. And people liked it.

Unsurprisingly, Village Roadshow Films did not, claiming the effort (dubbed “Project Popcorn”) was a “clandestine plan to materially reduce box office and correlated ancillary revenue generated from tent pole films that Village Roadshow and others would be entitled to receive in exchange for driving subscription revenue for the new HBO Max service.” HBO Max and AT&T telegraphed this intention, so it seems hard to argue this was somehow clandestine. The suit also accuses WarnerMedia of ignoring the fact that piracy would have hurt the overall profits to be made from the film, though, again, metrics proving clear financial harm appear lacking.

But just as unsurprisingly, Warner Brothers thinks Village Roadshow Films is just annoyed by reality and shifting markets:

“In a statement shared with The Verge, Warner Bros. called the lawsuit ?a frivolous attempt by Village Roadshow to avoid their contractual commitment to participate in the arbitration that we commenced against them last week. We have no doubt that this case will be resolved in our favor.”

Again, while it’s true that AT&T attacked the sacred old release window to goose streaming subscriptions, this was something that happened during an historic plague in which indoor transmission of a deadly virus could kill or disable you. It’s also almost an afterthought that in the advanced home theater and mall shooting era, this is something consumers desperately wanted. For all its downsides, COVID had a strong tendency to painfully highlight shortcomings (see: broadband, the U.S. healthcare system) and dated antiquities (like release windows or a disdain for telecommuting) that no longer served us.

While there’s a shrinking sect of Hollywood folks like Spielberg who still think in-person theaters and release windows are sacred and above reproach, COVID laid bare the fact that not that many people agree with them. And while that certainly disadvantaged folks financially dependent on older models (like theater owners and studios heavily vested in release windows), the reality is what it is, and a popular change was accelerated all the same.

Filed Under: covid-19, movies, pandemic, release windows, streaming
Companies: at&t, village roadshow, warnermedia