Hollywood's Insistence on New Draconian Copyright Rules Is Not About Protecting Artists

by Katharine Trendacosta
Electronic Frontier Foundation
Reprinted under Creative Commons License

Stop us if you've heard these: piracy is driving artists out of business. The reason they are starving is because no one pays for things, just illegally downloads them. You wouldn't steal a car. These arguments are old and being dragged back out to get support for rules that would strangle online expression. And they are, as ever, about Hollywood wanting to control creativity and not protecting artists.

When it comes to box office numbers, they've remained pretty consistent except when a global pandemic curtailed theater visits. The problem facing Hollywood is the same one that it's faced since its inception: greed.

From the fever-pitch moral panic of the early 2000s, discussions about "piracy" disappeared from pop culture for about a decade. It's come back, both from the side explaining why and the side that wants everyone punished.

Illegal downloading and streaming are not the cause of Hollywood's woes. They're a symptom of a system that is broken for everyone except the few megacorporations and the billionaires at the top of them. Infringement went down when the industry adapted and gave people what they wanted: convenient, affordable, and legal alternatives. But recently, corporations have given up on affordability and convenience.

The Streaming Hellscape

It's not news to anyone that the video streaming landscape has, in the last few years, become unnavigable. Finding the shows and movies you want has become a treasure hunt where, when you find the prize, you have to fork over your credit card information for it. And then the prize could disappear at any moment.

Rather than having a huge catalog of diverse studio material, which is what made Netflix popular to begin with, convenience has been replaced with exclusivity. But people don't want everything a single studio offers. They want certain things. But just like the cable bundles that streaming replaced, a subscription fee isn't for just what you want, it's for everything the company offers. And it feels like a bargain to pay for all of it when a physical copy for one thing costs the same as a month's subscription.

Except that paying for every service isn't affordable. There are too many and they all have one or two things people want. So you can rotate which ones you pay for every so often, which is inconvenient, or just swallow the cost, which is not affordable. And none of that guarantees that what you want is going to be available. Content appears and disappears from streaming services all the time.

Disney removed Avatar from Disney+ because it is re-releasing it in theaters ahead of the sequel. Avatar is a 13-year-old movie, and rereleasing it in theaters should be a draw because of the theater-going experience. Avatar shouldn't have to be removed from streaming since its major appeal is what it looks like on a big screen in 3D. But Disney isn't taking the chance that the moviegoing experience of Avatar alone will get people to pay. It's making sure people have to pay extra--either by going to the theater or paying for a copy.

And that's when the content even has a physical form.

After the Warner Bros. merger with Discovery, the new owners wasted almost no time removing things from the streaming service HBO Max, including a number of things that were exclusive to the streaming service. That means there is no place to find copies of the now-removed shows. People used to joke that the internet was forever--once something was online it could not be removed. But that's not the case anymore. Services that go under take all of their exclusive media with them. Corporate decisions like this remove things from the public record.

It's a whole new kind of lost media, and like lost media of the past, it's only going to be preserved by those individuals who did the work to make and save copies of it, often risking draconian legal liability, regardless of how the studio feels about that work.

When things are shuffled around, disappeared, or flat out not available for purchase, people will make their own copies in order to preserve it. That is not a failure of adequate punishment for copyright infringement. It's a failure of the market to provide what consumers want.

It's disingenuous for Hollywood's lobbyists to claim that they need harsher copyright laws to protect artists when it's the studios that are busy disappearing the creations of these artists. Most artists want their work to find an audience and the fractured, confusing, and expensive market prevents that, not the oft-alleged onslaught of copyright infringement.

Hollywood Cares About Money, Not Artists

There's a saying that, in various forms, prevails within the creative industry. It goes something like "Art isn't made in Hollywood. Occasionally, if you get very lucky, it escapes."

Going back to Warner Bros. and HBO Max: another decision made by the new management was to cancel projects that were largely finished. This included a Batgirl movie, which had a budget of $90 million. The decision was made so that the studio could take a tax write-off, against the wishes of its star and directors, who said, "As directors, it is critical that our work be shown to audiences, and while the film was far from finished, we wish that fans all over the world would have the opportunity to see and embrace the final film themselves. Maybe one day they will insha'Allah."

The point is that Hollywood isn't in the art business. It's in the business business. It is never trying to pay artists, it's always trying to find a way to keep money out of artists' hands and in the corporate coffers. There's a reason "Hollywood accounting" has a Wikipedia entry. It's an industry infamous for arguing that a movie that made a billion dollars at the box office actually made no money, all to keep from paying the artists involved.

Traditional movie making is a unionized endeavor. Basically everyone involved save the studio has a guild or union. That means that there are minimum standards for the employment contracts that studios have to meet. New technology is attractive to studios because it isn't covered by those union agreements. They can ignore the demands of labor and then, if the unions threaten to refuse to work with them, they get to negotiate new terms. That's why the Writers Guild went on strike in 2007.

The new streaming landscape also allowed studios to mistreat their below-the-line workers; everyone who is not an actor, producer, writer, or director. So, most people. IATSE, the union that represented most of those workers, overwhelmingly authorized a strike over working conditions. They particularly called out how streaming projects paid them less, even if they had budgets larger than that of traditional media.

Streaming has ruined the ability of writers to make a livable wage off of a job, and has all but eliminated mentoring and on-set experience, contrary to the desires of the actual people who make the shows. Instead of investing in writers, studios push for more "efficient" models that make writing jobs harder to get and producing experience nearly impossible.

So when Hollywood lobbyists argue for draconian copyright laws "for artists," it should ring especially hollow.

What they want is exclusive control. That includes the ability to constantly charge for access, which means preventing people from having their own copies. Hollywood has fought against audiences having their own copies for as long as the technology has existed. They sued to eliminate VCRs and when they lost, then they started selling tapes. They sued the makers of DVRs, and when they lost again they opened up to video-on-demand. And now, streaming has given them what they've always wanted: complete control over copies of their work. No one owns a copy of the material they watch on a streaming service, they get only a license to watch it for a temporary period.

This way, the studios can make you pay for something every month instead of once. They can take it down so you can't watch it at all. They can edit things post-release, losing some of the history of the creation. And without copies available to own, they prevent creative newcomers from exercising their right to make fair use of it. All of this is anti-artist.

Studios want to point to an outside reason for their actions. Copyright infringement is convenient that way. And when they endorse draconian legislation like the filter mandates of the Strengthening Measures to Advance Rights Technologies Copyright Act, that is why. But when infringement happens, it's a symptom of a market not meeting demand, not the cause of the problem.