May 28, 2010 | By Richard Esguerra

Creators Must Move Beyond Suing the Audience

The file-sharing public faces yet another wave of predatory litigation, this time from the so-called US Copyright Group ("USCG"), which is suing BitTorrent users on behalf of various independent filmmakers. The Hollywood Reporter reports that more than 20,000 individuals have been sued, with more suits to come, and the producers of the Oscar-winning The Hurt Locker have also signed up with the USCG to go after BitTorrent users.

USCG's infringement lawsuits are "Doe suits," much like the cases in the infamous Recording Industry Association of America litigation campaign. Just as the RIAA did for years, the US Copyright Group uses an investigator to identify IP addresses associated with allegedly infringing downloads, files copyright infringement suits against anonymous Does, and then tries to hijack the subpoena process to get ISPs to match the IP addresses to actual names. (We'll have more to say in a later post about USCG's abuse of the legal process.)

Veterans of the file-sharing wars know that this story has no happy ending. The filmmakers — perhaps promised an alternative revenue stream in the form of settlements — are in for a bumpy ride. First, we'll see an abuse of the legal process to identify anonymous Internet users. Already, ISP Time Warner Cable (TWC) has pushed back against USCG's demand for hundreds of subscriber names and IP address lookups on short notice. If TWC succeeds — and it should — it will help put the brakes on USCG's effort to cut their own costs by serving mass subpoena requests. In other words, the lawsuits could get a little more expensive. Then, once identities are revealed, we'll inevitably start hearing about the "dolphins in the driftnet" — people who are improperly targeted but nonetheless forced to settle or defend. Meanwhile, despite the flurry of legal action, BitTorrent use will continue unabated and only the lawyers will see any increase in their bottom line.

This much should be abundantly clear by now: creators must move beyond suing the audience. File-sharers are characterized as shallow thieves, when in reality they're just fans who are using one of the most efficient technologies for distribution ever invented to explore creative works in the most convenient way possible. The majority of these fans would like to live in a world where there's an efficient, effective, modern framework for compensating the creators. That framework will be built through innovation and experimentation — not litigation.

Happily, some filmmakers and innovators are already working hard to develop better, more flexible models.

After initially failing to attract a distributor for the feature film Four Eyed Monsters — despite success at a number of festivals — filmmaker Arin Crumley and co-director Susan Buice embraced alternative, Internet-driven distribution strategies including in-depth "making-of" podcasts, fan-driven screening requests, and the posting of the film in full on YouTube. Crumley is hoping to embed the successful elements of these various experiments into OpenIndie, a website in beta that seeks to provide creators with a new way to distribute and screen films.

OpenIndie will allow filmmakers to post trailers and information about their films to the site, while film buffs can use the site to request screenings of films they like. Filmmakers can then get a roster of their fans, giving them the ammo they need to convince theaters to show the film in regions where there's guaranteed interest. OpenIndie also plans to make it easier for superfans to host a screening, collect donations, and offer merchandise on behalf of the filmmaker, creating a new level of creator-audience interaction and support that capitalizes elegantly on unique aspects of the film experience unavailable through infringement: seeing a film with others, being one of the first to support quality creative work, and so on.

Filmmaker and animator Nina Paley is another noteworthy creator finding success through alternative distribution of her animated feature Sita Sings the Blues. After critical acclaim, and after having to pay crushing licensing fees to copyright owners (since she incorporated blues songs originally written the 1920s into the film), Paley avoided traditional film distribution deals and instead released the film under a Creative Commons Attribution-Share Alike license, writing:

You don't need my permission to copy, share, publish, archive, show, sell, broadcast, or remix Sita Sings the Blues. Conventional wisdom urges me to demand payment for every use of the film, but then how would people without money get to see it? How widely would the film be disseminated if it were limited by permission and fees? Control offers a false sense of security. The only real security I have is trusting you, trusting culture, and trusting freedom.

And how successful has Sita Sings the Blues actually been? The QuestionCopyright.org site has been tracking the results of her alernative distribution project and summarizes the findings thusly:

Best of all, her income stream is fairly steady. This is the opposite of the traditional "burst and fade" distribution model that so many works endure, dragged out of circulation prematurely to avoid competing with new releases from the same publisher. Because Nina's film is audience-distributed, it's in circulation forever, whenever and wherever people want to see it. And all those audience members are potential customers and donors, as the financial results bear out.

A less measurable factor than "profit" that many passionate creators will nonetheless find to be important is the emotional, creative impact of embracing alternative distribution. According to Nina Paley, the success and thrill of Sita Sings the Blues can be felt in ways beyond the business model built around the work itself.

Overall, a prevalent theme for those leading the way in getting paid for creative work is an acceptance of copying as an integral aspect of modern life that gives creators unprecedented advantages and flexibility. In a recent interview, author (and former EFF staffer) Cory Doctorow said:

As a practical matter, we live in the 21st century and anything anybody wants to copy they will be able to copy. If you are building a business model that says that people can only copy things with your permission, your business is going to fail because whether or not you like it, people will be able to copy your product without your permission. The question is: what are you going to do about that? Are you going call them thieves or are you going to find a way to make money from them?

And to that end, innovative sites are stepping in to give creators new tools and diverse choices for fundraising, like Kickstarter's development of the crowdfunding concept, and Flattr's experimentation with social micropayments. These services seek to capitalize on the deep, direct engagement made possible by the Internet — enlisting the audience, rather than attacking it.

Independent filmmaking is extraordinarily challenging, and part of the challenge is getting compensated for your hard work. But the lessons from litigation in the music space could not be more clear: suing your fans is no way to meet that challenge. We urge filmmakers to learn from the creators profiled above, experiment with the new tools at their disposal, and to lead the way in finding better way forward.


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