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THE SCREENER FIASCO (November 2003)
by ALEX LEEDS
a Film Comment online exclusive
Links to related sites
The Great Screener War has come and gone, and it was a blockbuster. Part II is already in development.
Just about everything the MPAA and the major Hollywood studios did was a politically tone-deaf miscalculation-preemptory abolition of what had come to be regarded as an entitlement, lack of advance consultation and warning, precipitous timing that disrupted settled plans and expectations on the eve of the 2003 awards season, and failure to adequately explain why. But the studios basically had the right idea (awards screeners as we have known them must go); they simply bungled the implementation.
Filmmakers reacted with understandable outrage to an edict that was dumped on them as a fait accompli. (The Boston Tea Party and l'affaire Langlois are tempting historical analogies.) But filmmakers miscalculated, too, when they signed full-page trade advertisements proclaiming themselves "unconvinced that material links exist between screeners and the illegal industry of pirating our work-and the work of our colleagues." That statement displays a startling obliviousness to what's happening in the world outside that mental cocoon called "Hollywood."
The plot, for those of you who were away, was very simple. (1) The MPAA announced on September 30, 2003, that, "to combat digital piracy," nine studios and their subsidiaries or specialty labels "would not send out any [VHS and DVD] screeners for awards consideration purposes." (2) Weeks of intense and sometimes vitriolic controversy ensued, amounting to a virtual civil war between studios and filmmakers, and also between studios and their subsidiaries or specialty labels. (3) On October 23, the MPAA and the Academy of Motion Picture Arts and Sciences (AMPAS) jointly announced "a one-year experiment" under which those Oscar voters who sign a pledge to keep screeners in their homes and under their personal control will be eligible to receive whatever VHS-only (no DVD) awards screeners the studios choose to send out.
That's the muddled and obviously temporary outcome of what The Wall Street Journal described almost a year ago as "the collision of two powerful forces in Hollywood: the race to stamp out piracy and the race to win Academy [and other] Awards." The 2003 awards season will end, eventually, and everyone will then have to figure out what to do about subsequent awards seasons. But "screeners as usual" will never return.
The Studios
Awards screeners have been a subject of conflict within each studio since they were first employed more than a decade ago (then VHS only, recently mostly DVD). There are those executives who championed their use, those who tolerated them as a necessary evil, and those who opposed them as dangerous.
"For Your Consideration" screeners were often mailed out while new films were still in only a handful of theaters and sometimes even before they had opened at all. More people got them than actually needed them for awards consideration purposes (the MPAA says 700,000 screeners were sent out during the 2002 awards season). They were passed around among friends and acquaintances, were sometimes auctioned off on eBay, could easily be "duped" by anyone with a modicum of sophistication, and were lately even uploaded onto the Internet. In any other context a situation like this would be characterized as "reckless endangerment."
We weren't privy to the studio discussions which led to the MPAA's initial no-screeners announcement, but it's easy to identify three developments symptomatic of factors that must have been considered.
On March 3, 2003, The Wall Street Journal ran a front-page story reporting that DVD screeners sent out during the 2002 awards season were the source of pirated versions of new movies then appearing on the Internet and in hard copy form throughout the world, concluding that screeners demonstrated a "triumph of Oscar fever over business sense." A little more than two weeks later, on March 18, Caltech announced that its computer scientists had developed a new Internet data transfer protocol called "FAST," which, when deployed "in the next few years," will make it possible "to download a full-length DVD movie in less than five seconds"-thus raising the specter of an Internet piracy problem equal to that currently faced by the record industry. Finally, on September 13-a little more than two weeks before the no-screeners policy was announced-AT & T Labs released its "Analysis of Security Vulnerabilities in the Movie Production and Distribution Process," finding that 77% of the movies being traded on Internet file-sharing networks were obtained via "insider leaks" before home video release and identifying screeners of all types (including awards screeners) as a major culprit.
Studio chiefs are corporate officers, responsible directly to Boards of Directors and shareholders, or to parent companies and their Boards and shareholders. And it's obvious, too, that their constant pleas for government help in combating piracy would have started falling on deaf ears with their own house in such flagrant disarray. The studio chiefs had to act. They didn't have to do exactly what they did, or how and when they did it, but they had to act.
Unfortunately, in the rush to act, the MPAA and the studios forgot Rule No. 1 in every politician's handbook: If you're going to change an existing policy (awards screeners) supported by a powerful constituency (filmmakers), you have to lay the groundwork first. Especially when the policy change will pour cold water on so many hot egos.
The Filmmakers
Filmmakers, too, have long been conflicted about awards screeners. "I want my film to be seen on a big screen, as I intended" was the most common refrain when screeners first appeared. Many filmmakers are still of that view.
But over the years screeners firmly entrenched themselves into the artistic, business, and social fabric of Hollywood. There's no question that they resulted in wider exposure for independent and smaller films, as well as foreign films, and that exposure and awards (even nominations) advanced such films and the careers of their makers. There's also no question that screeners were widely abused, and that many people who got them were actually just receiving "status screeners." It would be fairest if only those who abused screeners suffered the consequences, but we all know that when a rule is adopted to prevent further abuses everyone pays the price.
The no-screeners policy obviously stuck a knife into a sacred cow, but it's ridiculous to claim, as many did, that the policy demonstrates a "conspiracy to take back the Oscars" for big-budget studio films. In fact, the nine studios which adopted the no-screeners policy are themselves the prime financiers and/or distributors of the independent, smaller and foreign films that are the claimed target of the alleged conspiracy (see accompanying chart). And in many cases these films return more in the way of profits (if not always in absolute dollars, then certainly as a percentage return on investment) than their big-budget competitors.
And it's equally ridiculous to assert, as many prominent filmmakers did in the trade advertisements quoted above, that there are no "material links" between awards screeners and piracy. We'll assume that these filmmakers don't read The Wall Street Journal, are unaware of the Caltech announcement about FAST, and have never heard of the AT& T Labs study. But they do read the trade newspapers (Daily Variety and
The Hollywood Reporter) and must have seen at least some of the numerous reports about a New Jersey man who obtained a screener of The Hulk and uploaded it onto the Internet two weeks before its theatrical release last June. The formal Federal criminal charges against the man, who pleaded guilty and paid a small fine, read in relevant part as follows:
"[O]ne of the videotape copies of the Work Print was sent by Universal to an advertising agency located in Manhattan·. On or about June 3, 2003, an employee of the Ad Agency loaned the videotape to an acquaintance. Later on or about June 3, 2003, that acquaintance loaned the videotape to his/her acquaintance, Kerry Gonzalez, the defendant·. Gonzalez made a digital copy of the Work Print by using his home computer to digitize and record an exact copy thereof onto his home computer. Gonzalez then used a computer program to manipulate the computer file of the Work Print in an attempt to defeat the security tag in the movie. On or about June 6, 2003, Gonzalez uploaded the digitized copy of the Work Print to an Internet website chat room hosted from The Netherlands frequented by numerous movie enthusiasts who routinely gather in that chat room to post and trade copies of bootleg movies."
Exposure and awards recognition (including nominations) are wonderful, but not if films themselves are gutted in the process. "What! Me worry?" is not a tenable position.
Postscript
Studios and filmmakers went to the barricades single-mindedly in 2003 - "No screeners means no risks" vs. "Damn the torpedoes, full steam ahead" - and neither emerged with glory. In an industry known for excess, it was all · well, excessively excessive.
Awards screeners as we have traditionally known them are now gone forever, and that will probably have some impact on nominations and awards for 2003. But so will a shortened awards season, AMPAS restrictions on Oscar campaigning, and the huge volume of films eligible for consideration. Even with an unlimited supply of screeners, no one could possibly see all of them.
Discussions about screeners for the 2004 and subsequent awards seasons will be equally problematic. Adjustments will surely be made to account for the rapid evolution of technology, and those left out of the current MPAA-AMPAS "one-year experiment" (talent guilds, film critics, foreign press, etc.) will just as surely seek to be included if it's renewed for another year. Over the long haul awards screeners may disappear completely, either because they have become even more dangerous or because alternatives have been found. On the other hand, new high-definition video formats (D-VHS currently and one or more HD-DVD formats in the future) may provide encryption so secure that screeners can continue. But "Internet2," capable of transmitting high-definition video, is already in active development and will raise new issues. It's obviously going to be a floating crap game.
What the situation now requires, above all else, is less Sam Peckinpah and more Frank Capra.
ADDENDUM (December 9, 2003)
We thought it was over for the 2003 awards season, but The Great Screener War was such a hit that Part II was produced quickly and rushed into release.
Following announcement of the MPAA-AMPAS "one-year experiment," numerous other past screener recipient groups - Screen Actors Guild (SAG), Hollywood Foreign Press Association (Golden Globes), Los Angeles Film Critics Association, etc. - sought the same arrangement. They were turned down in mid-November, with a pledge by the MPAA that the entire issue would be revisited before the 2004 awards season. These and other groups were quite unhappy, to put it mildly. So was a prominent Hollywood agent, and non-voting member of AMPAS, who took the situation as a personal blow to his social plexus and resigned in protest when he learned that screeners would be sent only to those Academy members who actually vote for the Oscars. But reactions were not uniform - the Directors Guild (DGA) and the Writers Guild (WGA) both indicated their acceptance of the restrictive screener policy for piracy prevention purposes, while several film critics departed from their colleagues and thought restrictions were justified. The spectacle of Hollywood at war with itself received extensive worldwide coverage, with juicy headlines like "Pooped Out on Piracy" (Variety) and "No 'screeners,' but plenty of whiners" (St. Petersburg [Florida] Times). "The industry," as it likes to call itself, had never looked sillier.
Things came to a head (again!) on November 24, when the IFP and a number of "independent" filmmakers filed suit against the MPAA in New York Federal Court, claiming an antitrust conspiracy between MPAA and the nine studios "to disadvantage and to erect barriers against fair competition from small, independent film producers" by severely curtailing use of the screeners they need to obtain attention during the 2003 awards season. The formal Complaint is a legal document, but it can just as easily be read as a fascinating insight into how much the mentality of "the indies" differs from that of "the majors" - and that's been a very basic problem throughout the entire screener controversy.
We'll leave the lawsuit intricacies to the legally minded, who can pursue them through some of the links below, but an initial court hearing was held on November 26, after which the trial judge turned down the filmmakers' request for emergency relief because they had waited so long to file their lawsuit. A second court hearing took place on December 3, complete with testimony from the MPAA and several independent filmmakers. On December 5, the judge handed down an oral ruling in favor of the filmmakers, signed a preliminary injunction prohibiting MPAA "from taking any action to implement the ban on awards screeners as described in its press release dated October 23, 2003," and refused to "stay" (delay) the effectiveness of his injunction. IFP and the filmmakers immediately issued a victory statement, while the MPAA immediately promised an appeal.
It's worth underscoring what the judge did and didn't do in his December 5 ruling. He didn't doubt "the sincerity" of the screener policy as an anti-piracy measure, and said those independent filmmakers who thought it was aimed directly at them were indulging in "a paranoid fantasy." He did say that, in adopting the screener policy under the auspices of the MPAA, the nine studios had surrendered their "individual discretion" to make screener decisions - a classic combination in restraint of trade - and that independent filmmakers whose movies were being distributed by the nine studios and their specialty subsidiaries or labels thus faced a "significant threat of injury" in the competition for commercially valuable awards. But he didn't say the studios and their subsidiary or specialty labels had to issue screeners; he merely said such decisions had to be made on an individual basis. (It should be emphasized that both the lawsuit and the judge's ruling were based strictly on the antitrust laws - trade and commerce, not art.)
Where do we go from here?
* A last-minute lawsuit, hasty court hearings, an oral ruling, and a quickly drafted preliminary injunction were bound to produce some chaos - and that has certainly proved true here. But there's no doubt that many fewer screeners will be sent out this year than in the past, and that the numbers will diminish even more in 2004 and future years - if screeners don't disappear altogether. It's especially noteworthy that the independent filmmakers stated at the December 3 court hearing that they would accept restrictions like those contained in the MPAA - AMPAS experiment, with violators barred from receiving screeners in the future, and the judge himself said in his ruling that a VHS-only policy would be acceptable. The "old days" are indeed gone.
* The MPAA has said it will appeal. Ten years ago the major studios obtained unanimous affirmation from the Supreme Court of their ability, consistently with the antitrust laws, to act collectively in cases involving post-piracy enforcement measures. The issue raised by the IFP case is the limits on their ability to act collectively in situations involving pre-piracy prevention measures. It is an important issue - affecting a host of cooperative efforts, like copy-protection standards for "digital cinema" and "high-definition" video formats - and it should be resolved authoritatively.
* Awards screeners will continue to find their way onto the Internet, and will continue to serve as the source for pirated VHS and DVD copies that flood world markets long before the same titles are released in home video legitimately - and in many instances even theatrically. (If anyone still has doubts about that, take a look at the indexing website www.VCDQuality.com for a list of 2003 awards screeners, for films both "big" and "small," that have already found their way onto the Internet.) Everyone now recognizes that the use of screeners requires them to weigh the potential commercial benefits of awards recognition against the potential damages from piracy. What they seem not to have recognized clearly is the political impact upon the legislators and law enforcement officials whose assistance they need in the fight against piracy ("Why should we help you when you're giving the stuff away?").
* Some independent filmmakers have already urged "inclusive" discussions to devise a mutually acceptable screener policy for the 2004 awards season. But the judge's December 5 ruling will necessarily serve as a constraint on what sort of "policy" can be devised, since anyone who's dissatisfied can file another lawsuit. Life is filled with ironies.
* Specific provisions governing the use of awards screeners will certainly find their way into future distribution contracts, and will be of concern not only to filmmakers but also to those who finance their films (equity investors, banks, foreign distributors, etc.), some of whom might be less concerned with awards recognition than they are about the financial implications of piracy.
After five more weeks of sturm und drang, our conclusions remain the same as they were in early November: MPAA and "the majors" miscalculated badly, while "the indies" and other filmmakers reacted understandably but naively. MPAA and the majors have received a bitter lesson about the political and legal limits on their exercise of power, however well-intentioned, while the indies must now recognize that awards screeners are a source of piracy and that "small, independent films" are not exempt.
Are awards screeners the most significant source of piracy? Hell, no, as the MPAA has acknowledged and as the Los Angeles Times made clear in a very detailed report on December 4, 2003, a day before the judge's ruling. But they are a problem - and a growing one, as broadband spreads, making it easier to transmit movies over the Internet; as new compression technologies make such transmission even easier; as software programs that "rip" the copy-protection on VHS and DVD become ever more widely available; and as DVD recorders allow everyone to make their own DVDs. The unique problem raised by awards screeners is that they include new movies in finished form that have just opened or are still unreleased. All movies eventually end up being pirated - it's a question of when, not whether, and awards screeners offer pirates a feast of "the latest" on a silver platter. What MPAA and the nine studios sought to do, unsuccessfully as it turned out (but appeal pending), was to address the problem before it spins totally out of control. Now they have to find another solution.
At the end of the day The Great Screener War (Parts I and II) was merely one small, preliminary skirmish in what will undoubtedly be an ongoing battle to radically overhaul how movies are distributed and who has access to physical material - and when. Things are going to change - the only question is how much blood is going to be spilled along the way. The beleaguered MPAA advanced a radical idea, apparently as a trial balloon, in mid-November: By 2005 the studios might make their movies available on the Internet immediately after theatrical release and before home video. Now that's an idea, good or bad, that deserves some serious discussion. The idea was widely reported (Associated Press, BBC, etc.), but no one paid it a damn bit of attention. Too many people in Hollywood - and "Indiewood" - were too busy fiddling with screeners and awards to notice that much of the rest of the world was already burning their movies.
Part III, anyone?
CODA (March 31, 2004)
The interminable 2003 awards season is over, finally.
The lawsuit between "the indies" and the MPAA is over, finally.
On March 29, 2004, the two sides announced that they had "reached a mutually acceptable settlement" on "confidential" terms, and that MPAA would not pursue its appeal of the December 5 ruling.
Both sides proved some points. Screeners undoubtedly contributed to the recognition many "smaller" films received during the 2003 awards season. At the same time, screeners found their way onto the Internet and into hard copy distribution in various parts of the world - in fact, AMPAS expelled one of its members who supplied VHS screeners to an Illinois man who burned them onto DVDs, after which they appeared online.
Discussions about screeners for the 2004 awards season are already underway. We won't venture a guess as to what will result, except to state the obvious: Everyone should now be able to weigh the potential benefits of screeners against the potential damages from piracy in a calmer, more intelligent fashion. At least we hope so.
But it's still a conundrum - and always will be.
Alex Leeds is a writer specializing in new technology and its impact on how we experience the arts. He previously wrote "Movies Without Borders" for Film Comment (January-February, 2003).
For those wishing to pursue the screeners controversy further:
The MPAA's September 30 announcement will be found at:
http://www.mpaa.org/jack/2003/2003_09_30a.htm
The AMPAS- MPAA October 23 announcement about the one-year experiment will be found at:
http://www.oscars.org/press/pressreleases/2003/03.10.23.html
The Wall Street Journal story of March 3, 2003, will be found at:
http://bear.cba.ufl.edu/karceski/FIN7446/WSJ%20articles/030303.html
The Caltech press release of March 18, 2003, about FAST will be found at:
http://pr.caltech.edu/media/Press_Releases/PR12356.html
The AT& T Labs report of September 13, 2003, can be downloaded from:
http://lorrie.cranor.org/pubs/drm03-tr.pdf
Additional AT&T Labs examples, presented on October 27, 2003, will be found at:
http://www.user-agent.org/movies/insider_samples.html
Information about "Internet2" can be found at:
http://www.internet2.org
The IFP legal Complaint against the MPAA will be found at:
http://www.moviecitynews.com/Notepad/2003/031125_sp.html
A transcript of the November 26 court hearing will be found at:
http://www.moviecitynews.com/Notepad/2003/031126_npd.html
A transcript of the December 3 court hearing will be found at:
[not yet posted - please check back]
A transcript of the judge's December 5 oral ruling can be downloaded from:
http://www.ifp.org/content/pdf/2167_6_1_1060.pdf
The preliminary injunction of December 5 will be found at:
http://www.moviecitynews.com/Notepad/2003/031205_screener_tro_order.html
The VCDQuality.com index of pirated films available on the Internet will be found at:
http://www.vcdquality.com
The Los Angeles Times story of December 4, 2003, will be found at:
http://www.latimes.com/news/local/la-et-piracy4dec04.story
[registration may be required]
The Associated Press report about the MPAA's "trial balloon" will be found at:
http://www.foxnews.com/story/0,2933,103621,00.html
© 2003-2004 by The Film Society of Lincoln Center
