When Reporting On Piracy Becomes Ethically Irresponsible, If Not Illegal

By J. Sperling Reich | August 15, 2014 9:13 pm PDT
Expendables 3

I have been waiting for this day for what feels like an eternity. Today, August 15th 2014 is the day “The Expendables 3” hits movie theatres worldwide. No, I have not been waiting two years since the “The Expendables 2” was released and earned more than USD $300 million in worldwide box office. I’ve never even seen the first two ensemble action films in the franchise.

I’ve been eagerly anticipating the opening day of “The Expendables 3” since precisely July 28th of this year. That’s the day I learned a high-quality version of “The Expendables 3” was leaked online from an article on the technology blog The Verge. The article, written by the website’s assistant managing editor, David Pierce, was headlined “I torrented ‘The Expendables 3’ and I’m still going to see it in theaters“.

Putting aside the legality of Mr. Pierce’s actions for a moment, the article made me question whether it is ethically irresponsible to report on such matters. Freedom of the press laws may “allow” media outlets and journalists to report on pirated titles without becoming financially culpable for a producer’s losses due, though doesn’t such activity actually publicize the availability of specific content, thus increasing illegal downloading and ultimately the economic damage it causes?

It may seem like there are no easy answers to such questions, however in an age where theft can be conducted anonymously from the privacy of one’s own residence, what at first appears to be a gray area with murky boundaries comes into focus as one that should leave no room for confusion whatsoever. To help make our point we thought it best to wait until after “Expendables 3” was released worldwide to publish this post.

To be sure, those of us who live in countries with a free and open press do not wish to hinder one of the most important tools in disseminating ideas and knowledge, as well as one of the most effective methods for keeping overreaching governments, corruption and wrongdoing in check. This is why I would have expected trade publications such as Deadline, The Hollywood Reporter, Variety and The Wrap to run stories about “Expendables 3” leaking online, which they all eventually did.

In fact, looking at when each of these outlets began covering the story, and the angle they took in their articles, speaks volumes about what they hoped to gain by doing so and who truly pays their bills.

It’s hard to say where the story of the “Expendables 3” leak first broke; I can not find any reporting earlier than stories on TorrentFreak and Variety from July 25th. My money would be on TorrentFreak based on the numbers cited in their original post. As well, their whole motive oparandi is to cover filesharing. But a story on TorrentFreak, which has fewer than 500,000 unique visitors per month, is like a whisper compared to the 4.4 million visitors Variety welcomes every month. (Consider also that this latter figure is only direct readership and doesn’t include extended reach or influence of Variety’s story being cited by outlets like Entertainment Weekly).

While TorrentFreak may only exist to report on such matters, it is less clear what motive Variety had for doing so when a good percentage of their revenue is derived from studio advertising dollars. One could easily see Lionsgate, the distributor “Expendables 3”, opting not to run campaigns in Variety for their next few releases. This calls into question just how “free” or “open” such media outlets are, though this is the balancing act trade publications in all industries have always contended with.

Variety (which like Deadline is owned by Penske Business Media) surely weighed this risk when choosing to publish their article on July 25th and must have felt that after the TorrentFreak post the cat was pretty much out of the bag. The entertainment trade space has become incredibly competitive over the last ten years and Variety has seen its once dominant market position completely erode. Rather than wait for one of the three other publications to run with a story that was sure to attract a lot of attention Variety may have felt they had little option.

Meanwhile, Deadline (4.8 million visitors), The Hollywood Reporter (13 million visitors) and The Wrap (5 million visitors) seem to know precisely where their bread is buttered. Instead of publishing any stories about the leak directly, ones that may have highlighted torrent websites where the file could be found, they chose to cover the news by highlighting the government investigation into the leak, a lawsuit against its alleged perpetrators, and the economic impact it might have on the film. Additionally, all of their stories ran more than a week after TorrentFreak and Variety first reported the leak.

It is Pierce’s post on The Verge, which also ran a story on July 25th citing the TorrentFreak article, that may be the most damaging for a number of reasons. First there is the fact that the website attracts between 16 and 19 million unique visitors each month. The post proved quite popular and to date has generated over 200 comments. It has also been shared more than 50,000 times on Facebook and 527 times on Twitter. To put those astronomically high numbers in perspective, take a peek at the number of times this post has been shared and commented on.

Secondly, the above mentioned numbers only represent direct readership. Pierce’s post received a flurry of citations and accompanying links on countless websites like Indiewire (who in all fairness was taking the writer to task). Even Variety wound up quoting from Pierce’s story in an article on the potential economic impact of the leak. To show just how surreal and circuitous the Internet can become, the Variety post links back to Pierce’s post, which in turn links to the original story on The Verge mentioning the leak, which itself quotes and links to Variety’s July 25th story on the same subject. (No wonder the blogosphere is sometimes referred to as an echo chamber).

Perhaps the most destructive side effect of Pierce’s post, one that is invisible to the naked eye and seeps into our society over time like a fungal infection, is the cultural mentality that illegally downloading or stealing content is such a harmless, even beneficial act, one that can be confessed to openly in a blog post rather than being considered the criminal activity it actually represents. We are raising, or have raised, an entire generation of children and young adults who don’t view copyright theft as a serious crime or even illegal.

Digital technology has made it possible to turn content into an intangible good that can be infinitely copied and easily distributed through an ever growing number of channels and as such maybe the entertainment industry’s business models need to change. But until legislation and copyright laws are revised, rewritten or entirely jettisoned, obtaining content illegally, whether in digital or physical form, is still considered a punishable crime.

That’s why Lionsgate is suing those they believe orchestrated the leak of “Expendables 3” and the websites hosting the illegal files. Yet shouldn’t the studio be just as litigious with someone who publicized the availability of its stolen property? Are Pierce and/or The Verge not indirectly aiding and abetting the theft of intellectual property?

At the very least, couldn’t Lionsgate or the appropriate law enforcement body make an example out of Pierce by pursuing criminal charges for illegally downloading copyrighted content? After all, the Family Entertainment and Copyright Act of 2005 states that criminal infringement includes:

…the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

The law is ambiguous about whether “distribution” and “making it available” means the uploading or downloading of a copyrighted work, though the distinction is somewhat irrelevant when it comes to tormenting which allows users to download and seed an upload at the same time. It turns out the crime Pierce casually mentions committing in his headline is punishable with fines and up to three years imprisonment.

Also considered criminal under this same law is willful infringement of copyrighted works:

…for purposes of commercial advantage or private financial gain.

Such a clause might be used to hold The Verge accountable as it speaks directly to why the outlet would publish Pierce’s post. Did The Verge believe their readers had a dying need to know “Expendables 3” was leaked online? Did editors at The Verge really think their audience would be surprised to learn a pirated copy of a soon-to-be released blockbuster was extremely popular on file sharing websites? Did The Verge want to do an exposé on the inner workings of movie production to explain how such a leak could even occur?

The answer to all of these questions is, of course not. The headline of the post gives away The Verge’s motive for running such a story; to drive traffic. Of course, that’s the overall goal of every news website, but the headline used on this particular post is referred to by online media professionals as “click bait”. It is meant to standout on news aggregators such as Reddit and leap out when shared via social media. A headline with the title of an upcoming blockbuster and the word “torrent” is designed to make anyone who sees it pause and think, “Whoa! ‘Expendables 3’ got leaked online? What the?! I wonder if it’s a good copy.”

Wanting to know more – usually no more than what can be found in the first paragraph of such posts – most who glimpse the headline will click on the accompanying link. And voila! The Verge gets another visitor, driving up their number of unique visitors, increasing page views and creating additional advertising inventory. More visitors also means more ads get served and clicked on. It also means The Verge might be able to charge more for marketing campaigns running on their website in the future.

I don’t fault The Verge or any website for trying to increase traffic and run a successful business. I truly think The Verge is a great website and have a lot of respect for its editor-in-chief, Nilay Patel. In the instance of Mr. Pierce’s “Expendables 3” post however, it is hard not to believe they are reaping their own financial gain at the indirect expense of another.

It would likely be a huge stretch to try and apply the Family Entertainment and Copyright Act of 2005 in such a manner. The Verge could also make the argument that Pierce’s post gave “Expendables 3” a rave review, urging readers to go see the film in theatres. Even so, I can’t think of a studio executive who would agree with Pierce’s claim, “Leaking a month before its release might just be the best thing that ever happened to ‘The Expendables 3’.”

Prosecuting piracy after its occurrence has always been a whack-a-mole solution with a low return on investment. Such approaches also inherently suffer from the “Streisand effect” wherein an attempt to cover-up or squelch information only serves to publicize it more (see Streisand v Adelman Case No. SC 077 257 Cal. W.D. 31 December 2003).

Instead we would suggest the industry adopt a different tactic to handle piracy cases; don’t mention them at all. We don’t mean that literally, but rather studios and content owners should work to strike an informal agreement with the media to not cover leaks of copyrighted material before its commercial release.

There is plenty of precedent for these types of unwritten arrangements. Take the “ban” on covering the children of any United States President outside official appearances. There is no official law forbidding journalists from photographing or writing about the president’s children, yet it is generally seen as taboo. The White House Correspondents’ Association has had a gentlemen’s agreement on this issue for decades.

This concept may not be all that difficult to implement. Mainstream media seems to already be onboard with the idea as neither the New York or Los Angeles Times ran stories on the “Expendables 3” leak. The Wall Street Journal only did so a few days before the film opened. Cable news networks also avoided the story. Media outlets like The Verge, which exist only online, appear to have no qualms about covering (and apparently gloating about) such events. Working with legitimate websites directly might convince them to postpone their stories on leaks until after content is officially released.

The reality is once an illegal version of copyrighted content is online it is nearly impossible to stop it from being downloaded illegally en masse. Not covering them in the media does not mean news about specific content leaks won’t spread via news groups, social media and word-of-mouth. It certainly won’t change what has become an ingrained ethical ambivalence toward illegally downloading intellectual property.

All we’re saying is maybe we don’t have to scream from the rafters about the availability of leaked content every time it occurs, as doing so can only exacerbate what is already a devastating financial blow.

J. Sperling Reich