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David Poland

By David Poland

The Script Publishing Suit

Not a whole lot to add to the facts. (Here is the court document.)

My sense of why this is happening now is that MPAA realizes that they need to secure all borders in the Copyright Wars. And screenplays, whether the internet community likes it or not, are copyrighted material that someone is paying a lot of money to produce. Those owners have rights. They just haven’t been much asserted.

AICN has realized that copyright is real for a lot of (web) years already and stopped publishing materials pretty early on. (Moriarty would say that they never published anything that would be classified as “illegal,” but it’s a semantic argument and it is true that the site got off that bus pretty early on.)

Once again, Fox is in the crosshairs for geeks because they are exercising legal rights. Some have claimed that I am pro-Fox because I have agreed with them in cases like the Watchmen suit or the idiot who got himself fired for reviewing Fantastic Four 2 from the projection booth. Wrong. It’s simply a matter of the studio being aggressive about this stuff… and being right, as any studio asserting its legal right to protect its product (or ownership status, in the case of Watchmen) is.

I still feel – as I always have – that while having read or seen copyrighted material and talking about it (or writing about it) is not illegal, it is, in many ways, immoral. In retrospect, discussing work product might well be fascinating. I engage talent in that discussion every week in DP/30 interviews. But that is a give and take. The subject of my interviews has the right to speak to whatever he or she chooses and not to address other things. Likewise, I have the right to ask certain questions or to not ask certain questions. Equally as important, however, is that we discuss The Film as it exists. I don’t think many (sane) filmmakers want you or I or anyone going through their outtakes and analyzing what they didn’t put in the movie. Some will offer things on the DVD. But with a few legendary exceptions, the movie is the movie is the movie.

Paraphrasing Aaron Sorkin’s “Mark Zuckerberg,”If the filmmaker wanted to engage your opinion about what he or she should have done, you would have been engaged by the filmmaker to offer an opinion.”

The assertion of copyright will be the media story of the next decade. Google has been a big dumb target, but really, they continue to make themselves a bigger target with projects like Google TV. This speaks to my Netflix coverage as well, as Netflix has been the frontrunner in creating a new window for the studios to exploit and Netflix, trying to still be in business in 2025, has been creating a higher value for streaming than was considered realistic just a couple of years ago. Studios should be wary, as this is the high bar for this window… forever.

Look to Major League Baseball, which offers cheaper, more expansive access to its thousands of games a season than DirecTV or other premium baseball packages. Anyone who has wired or wireless access for their TV via PS3 or other platforms and who still pays more for baseball this year with their cable or satellite provider is a fool. MLB.TV is a better product for less money… if you’re plugged in. When will MLB competing against its own sold rights become a problem with the cable/satellite industry? Could be this year. Maybe next. But it’s coming. And then, there will be a new set of rules, set by MLB, that maximizes its revenues. Eventually, something will become The Standard. The NFL will face the same issues – especially now that MLB has proven it can all be handled effectively “in-house” – when their deal with DirecTV comes up for renewal again.

Getting back to screenplays… even if Fox and every other studio decides not to exploit their screenplays for direct financial gain, they have a right to do what they wish with their rights. Some studios publish their screenplays themselves during awards season, seeking eyeballs and votes. Studios could put together an official studio script vault that people could access and, theoretically, pay a small amount for downloads. And if some filmmakers felt that multiple drafts of the screenplay would be a valuable learning tool or add insight into the process, they could let those be published as well.

But the era in which we, on the web, can assume ownership of things just because we can get our hands on them, is coming to an end. And it seems to me that some boundaries might be a good thing for everyone. Journalism might require some serious reporting again, respect for ownership encourages more spending on ownership, and even breaking the rules becomes more attractive when everyone isn’t competing to be a rule breaker all day every day.

What do you think?

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8 Responses to “The Script Publishing Suit”

  1. bigdandfw says:

    Some of the biggest script traders out there are studio employees and contractors.

    I don’t expect to see a copyright crackdown on that.

  2. Triple Option says:

    What do you think Fox really wants from this? Besides people to stop lifting their product? Either by statue or precedent, they say they’re entitled to $150K per infringement. Not that it makes it acceptable, but I don’t recall seeing anything where the defendent profited off the actions, would it still be likely that a judgment reached be near that asking amount?

    And since Fox said it didn’t know the extent it was damaged, (which some may question, if any at all), what would Fox accept in the form of a settlement? You do this to make a point and protect your property but what really could Fox or any studio expect to gain from this? I’m not asking as if to suggest the activity’s futility but it seems like there could be something more than flexing some legal muscle in an act that could never return the cost of the proceedings.

    In the case of record companies, I can see the direct loss results that happened because of illegal downloads. While suing did shut down sites and change rules, the ultimate act of suing the fans really didn’t meet w/monetary gain as most offenders were basically required to sign something promising they’ll never do it again.

    Again, not to suggest the action is wrong, I just wanted to know what else could Fox be hoping to gain by this action? I feel like there’s gotta be something else that I’m just missing.

  3. David Poland says:

    I don’t think Fox expects to see a dime from the suit. Not the point. But you have to establish a value. If they sued for 20 cents a script, they’d be establishing a value that would serve as future precedent in any other case.

  4. Foamy Squirrel says:

    Triple Option – The damages can get pretty significant, although the chances of collecting will probably be close to 0.

  5. Triple Option says:

    I understand the damages awarded could be extremely high. I suppose what I was wanting to know was if there was a reason beyond a monetary reward for why Fox would sue if it wouldn’t expect to see any money, (any significant money anyway), in return? Is this really such a precedential matter or could you ring it up as any other copyright/license infringement case that Fox may have out against 20 people at any given time against people who’ve been printing say Simpsons T-shirts and selling them on eBay?

    As I see it right now, it seems like any ol’ copyright infringement suit. Not that the defendant didn’t poop her pants when she got served but what makes this so significant? And though you mentioned the MPAA, it’s Fox suing, not them. Could the MPAA sue on behalf off all studios/prod company members and go after Script Shadow and whatever half dozen other underground sites that may be doing the same thing? I saw that Fox left it open to sue up to 10 defendants but did they go through and have their own Anti Script Copyright Infringement Day and sue a buncha other offenders all at one time? Wouldn’t that be the way to do it if you’re trying to curtail a general practice of abuse? Or, do you just sue one to make the example for the rest and hope they know what went down?

    Often times lawsuits seek to make changes to practices or procedures. I wanted to know if that was the case here? If current laws now allow for damages of up to $150K per infringement to be awarded, why would Fox risk a suit in which an award set for an infringement amount be set that wouldn’t include in the amount any actual damage tied in? In so doing set a precedent price for all future script infringements that would undoubtedly be significantly less than what is currently allowable under the law? I don’t see how you could. Wouldn’t you let the thing draw out for a bit, put the defendant through hell, drain them of all their cash, then quietly reach a settlement that neither side is allowed to state? Fox puts one player, presumably a big fish in the arena, out of business while still maintaining the ability to sue future infringers at $150K a pop. This, to me, would make this business as usual. Maybe this is really the first time this type of thing has happened but I’m failing to see if this is news/(significant) beyond that?

  6. Foamy Squirrel says:

    It’s difficult to speculate without having some inside knowledge from the Fox team, but my guess is that this is a “warning” to internal leakers that they can’t pursue directly – “mess with our stuff and we’ll kick your ass”. I can’t imagine the script trading groups bother them that much, but given the fairly high profile Wolverine leak I’d imagine they’re taking a tougher stance on what employees and contractors do with Fox content.

    This, of course, assumes that Fox will pursue the case rather than MPAA.

  7. Alex says:

    Technically speaking if they’re going to fully enforce their copyrights they should also sue anyone who publishes a publicity photo of one of their movies AND doesn’t have a written license… And no, it wouldn’t be fair use because the stills are different, independent works than the movie… Reuters and other agencies would sue you if you use their photos without a license.

    And, now that they’re going after the screenplays they should modify their copyright notices from:

    “This motion picture, including its soundtrack, is protected by copyright….”


    “This motion picture, including its soundtrack and screenplay, is protected by copyright.”

    Now, for interesting side effects… if a script shows up in any production company/studio that doesn’t have an option or has purchased it, can the copyright owner sue the prodco/studio?

  8. josh says:

    “if a script shows up in any production company/studio that doesn’t have an option or has purchased it, can the copyright owner sue the prodco/studio?”

    that’s not publishing.

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