Like many public organizations with strong opinions, we find that our social media posts attract a lot of strong support as well as a number of misinformed, mean-spirited, and even downright crazy online comments. We love our supporters and we silently curse the idiots who have nothing useful to offer. But then, there is the third category – well-meaning and well-stated comments with which we may disagree, but that deserve a well-stated reply. 

Take our recent post about filmmaker Werner Herzog, and his dispiriting recent remarks in defense of the scourge of film piracy. Perhaps because Herzog’s intellectual, challenging filmography tends to draw a certain type of crowd, the Facebook conversation around this particular article was almost universally, well, conversational. By that, we mean the usual dissenters were in force, but with a refreshingly high percentage of notions that were articulate and well-reasoned.

While we disagree with all of them, we’re glad to have read them, and to have been reminded that there is still room for civil discourse within Facebook’s teeming cesspool. What’s more, their arguments for piracy, and against the strong copyright protections we uphold, give us a great opportunity to continue that discourse now – by offering our counterpoints to some of the more salient comments that didn’t insult our mothers. 

Point: “Actually, multiple studies have shown consistently that media that gets pirated heavily sells better.” – Dante

Counterpoint: Ah yes, the ol’ “piracy as promotion” argument. This is a line thieves love to trot out to make themselves feel better about their thievery. “My stealing actually helps them,” they crow as they illegally stream or download another creative product that someone spent serious money and labor to produce, market, and distribute. “Just like my carjacking is good for the automotive industry’s bottom line, and my shoplifting is great for retail!” 

Okay, so most pirates aren’t also carjackers – rather, like Dante (we assume), they are normal, upstanding citizens of the world who feel better when they see studies that justify behavior that common sense tells us is wrong. We are still looking for the industry where the “promotional” benefits generated by illegal transactions outweigh the profits that would have been generated if those transactions were instead direct sales. Here’s a hint: It doesn’t exist. And if you need studies, here are some that have shown that creatives lose billions of dollars to piracy every year. Not millions – billions, and the number is only growing.

Dante, no industry can lose billions of dollars to theft and call it a net gain. A media offering might, and often does, sell well in spite of such rampant theft, but these tend to be limited to blockbuster productions that can withstand such losses. (Even then, do you think the fact that they may spend as much on marketing as they do on production might actually be more effective in building an audience than piracy?) 

So, does piracy help promote the works that can’t rely on hefty marketing budgets? Again, no. Most creations that hit the marketplace in film, music, video games, and beyond, are made by independent artists struggling just to break even. For these creatives, small amounts of money here and there can make or break their careers, and piracy is often the breaker. (One thing’s for sure – it’s never the maker.)

But, don’t take my word for it. Ask the Office of the U.S. Trade Representative, which just last year said that illicit streaming devices, such as the “fully-loaded” Kodi box, “continue to pose a direct threat to content creators.” That’s the same office that negotiates our country’s economic trade deals. They know a thing or two about markets, and what they do know for certain is that piracy hurts sales. Maybe we should listen to them?

Point: “On every film there’s a crew of people whose names are listed in the credits. All those people get a salary, and a credit, then a fond farewell. Those crew members see no revenue from ticket sales, yet still remain proud of the work they’ve contributed… Piracy is something that allows that film to be seen by a larger audience.” – John

CounterpointYou’re right, John – most crew members on a film set are paid only for as long as that gig lasts, and do not generally earn additional income once the finished production hits the market. You’re also right that they tend to be very proud of the work they do! So, why not ensure they get future opportunities to get paid for their good work? Any “expansion” of a film’s audience from piracy comes at the expense of revenue that could be invested back into the next film, giving those crew members their next gig. The more revenue a company loses to theft, the less money it has to reinvest – and the less work there is for hardworking crewmembers down the road.

Oh, and one more thing – many of these crewmembers (if not most of them) are also members of labor unions, such as the IATSE. Thanks to their unions, they receive healthcare, pensions, disability insurance, and other benefits. While film residuals may not directly flow into those workers’ bank accounts, those earnings do directly fund these essential benefits – benefits that all American workers should be entitled to, don’t you think? Maybe that explains why IATSE stands with us against piracy. 

Point: “I ask industry pros to ask this question of themselves…. Does it mean more to you to tell great stories that drive changes of heart, or making money?” – Aaron

Counterpoint: Why can’t it be both, Aaron? Why can’t we tell great stories and make money? You seem to be under the impression that films, television shows, and other creative offerings that “drive changes of heart” are easy and/or free to produce. In fact, they are full-time endeavors (and then some) that require tremendous resources – both financial and human – to get off the ground, and even then, it’s no guarantee they will get to the finish line. 

In the end, it’s a business. If we didn’t get paid to tell the great stories, the great stories wouldn’t exist. 

Point: “The misnomer of people who think every copy of something [copyrighted] should be paid for, assumes that every person watching it can afford it.” – Aaron

Counterpoint: Hello again, Aaron. When is it okay to steal something because you can’t afford to buy it? Let’s say you are a teenager who wants a car so you can drive your friends to the mall. But, you can’t afford a car – because, you know, you’re a teenager. Is the solution, then, to steal the car? No! You have to save up your money, like everyone else.

The same goes for creative works. If you can’t afford $4 to rent a movie, or $10 a month for a streaming service, or whatever it is you’re trying to watch or listen to, then you don’t get to do it. Or, maybe you decide to watch it with a friend or two to split the cost or you decide that you may be getting better value from watching a film instead of spending that money on a beer or a soda. It’s as simple as that. That’s not just lawful, but it’s also… fair. 

Point: “People pirate movies like ‘Fast & Furious’ or ‘Avengers,’ not Werner Herzog movies like ‘Fitzcarraldo.’” – Enrique

Counterpoint: Even if that were true, Enrique, why is it any more justified to pirate a Marvel movie or some other blockbuster than it is a Werner Herzog film? Marvel movies, like all movies, cost TONS OF money to make and create many jobs. Maybe the scale is larger, but that just means more money was spent (much of it going into local economies) and more jobs were created. The scale of the piracy tends to be commensurate with the scale of the production (just look at Game of Thrones). 

In any event, your fellow Facebook commenter, Jared, said “I pirate everything, including Herzog,” and he’s hardly alone. The streaming era has made it easier to pirate than ever before, and no filmmaker, at any level, is safe from having their work stolen. Sadly, thanks to long-outdated safe harbor protections for American internet companies, we still have a long way to go here

Let’s look at one independent film’s piracy stats. Hereditary is a horror film by a first-time director. The director Ari Aster had only made short films until this point. He wrote and directed this film. We happen to know that this film took five years to get off the ground – being passed around between companies until it found its home, and its financing. The film was financed with cash to the tune of $7 million. This means that the risk was about as high as it could be, since the film had not sold its international rights prior to filming – a method often used by investors to mitigate risk. 

Hereditary‘s theatrical release made almost $80 million in worldwide ticket sales, which for a lower budget horror film is a fairly healthy return. At an average global ticket price of $7.00, that means that about 11.5 million tickets were sold. At the same time as its global theatrical release, Hereditary was also pirated roughly 92 million times, a level of piracy transactions that was over 800% higher than paid ticket sales.

If even 5% of those pirated transactions had been paid theatrical sales at the $7.00 ticket price, the film would have earned an additional $32 million. Or if that 5% had been just paid rental streams, at the conservative average price of $3.99 per stream, the film would have earned an additional $18.4 million. Those are sums that can mean life or death for an independent film.

Yes, in the end, Hereditary still managed to do quite well against its $7 million production budget, but Hereditary is also an anomaly. Most indie films are lucky to make any money at all, and companies are increasingly unwilling to make them. In other words, they are risky to produce, and piracy is decimating our already tenuous ability to do so. And, the next generation of storytellers? They may have a difficult time getting the opportunity to tell their stories. 

Point: “Oh cry me a river. The copyright holders are almost never the original artists, and they have zero respect for fair use.”– Greg

Counterpoint: Hey now, Greg – nobody loves fair use more than we do! It’s the legal framework that allows us to create new works that utilize portions of other, existing works. Without fair use, we wouldn’t be able to quote, review, parody, remix, report on, educate about, or adapt from other works, and the world would be a much less creative place. And, as evidenced by our name, we love creativity!

But, there’s fair use, and there’s unfair use. We get annoyed, when internet platforms pervert the definition of fair use in order to make it as hard as possible for copyright holders to claim infringement on works they own that are uploaded by other people. Presenting someone else’s material in its entirety, without their permission, is not fair use. Tens of millions of these kinds of infringements happen daily on internet platforms, but the site owners duck behind fair use rhetoric in order to continue profiting from the traffic driven by these uses. Meanwhile, independent rights holders, in particular, have almost no remedies available to address this ongoing problem.

Oh, and regarding your bit about copyright holders, Greg – the “original artist” owns the copyright to their work from the moment it is created. That’s how the law works. What they choose to do with that copyright from that point on – for example, selling or licensing it to a company that can take their little story and make it big – is entirely up to them! Regardless of who owns the copyright, it provides the legal protection to ensure that the owner is compensated fairly. Without it, there would be little incentive to continue producing and distributing additional creative works. Intellectual property, including copyright, is the fuel of innovation in America, not only feeding our culture with arts and entertainment, but propping up advancements in science, technology, medicine, and beyond!

Point: “I’m tired of the ridiculous spam from this pro-censorship outfit.” – Chris

Counterpoint: Chris, Chris, Chris – copyright is not “censorship.” In fact, as the U.S. Supreme Court has written, “It should not be forgotten that the Framers intended copyright itself to be an engine of free expression.” Why? Because it incentivizes the expression of new ideas, a First Amendment right, while allowing the speaker to decide how and when to share them, so that the speaker will always have the incentive to speak freely. Free speech and copyright go hand in hand. 

The Conversation Continues…

Piracy poses an existential threat to the creative works we love. It helps fund dangerous black-market criminal enterprises and devalues the contributions that make our culture diverse, progressive, and fascinating. Ending it once and for all seems like a no-brainer, and yet every day we are faced with new dissenters. That’s the world we live in – one in which companies like Google and Facebook have convinced legions of consumers that they are entitled to free copyrighted content online, whether the source is legal or not. That’s why we keep up our efforts to inform and engage, and why we are willing to take the heat from those who disagree. 

Thanks for following us – and thanks to the hundreds of thousands of people who have joined with us to #StandCreative.