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Big Tech’s Wish List for NAFTA Would Worsen Showbiz’s Piracy Problems (Guest Column)

Remember NAFTA, the North American Free Trade Agreement, favorite target of Donald Trump on the campaign trail? The “worst deal” for Americans ever? The “we’re going to rip it up and “Make America Great Again™” NAFTA? Well, it’s being renegotiated so you better pay attention.

Why do I care about NAFTA? I’ve been working as a film producer and production executive for more than thirty years. What made that possible was copyright protection, and copyright is under fire and NAFTA is the battleground.

But let’s start at the beginning, when NAFTA was first negotiated in 1993.

It used to be that when a movie got released, the only competition was what else was playing when it came out. But now that’s not the case – now you compete against everything in the theater and everything available at home.

However, the amount of quality content isn’t the real problem. Whether you’re Netflix-streaming “The Godfather” or “Godless,” at least you’re paying for the experience.

The real problem is that everything is also available online for free. This new threat, enabled by monopoly internet platforms like Google and Facebook, has been hollowing out our business model.

For example, a Samuel L. Jackson movie I made, “Unthinkable,” had its Blu-ray rip posted to the web TEN DAYS before release. TorrentFreak, the piracy trade publication, said it went to #1 on the piracy charts. I watched as hundreds of thousands of illegal torrents and streams killed our revenue.

Today, these torrents and streams are in the hundreds of millions. 

I know audiences want what they want, when they want it. But there’s no way for a legitimate business like mine to compete with an illegitimate business when it’s giving away my product for free.

And finding them is easy – they’re indexed nicely by Google’s search engine. Just type in “watch” before the name of any movie and see what Google auto-completes for you. Go ahead, try it. Whether it’s a big studio offering or a small independent made for next to nothing, Google is glad to serve up illegal streams, undermining the industry that employs the thousands of people who make these movies.

So let’s get back to NAFTA, and why I’m writing a piece about a trade agreement when my business is making movies.

A lot has changed since my most enduring movie, Kasi Lemmons’ “Eve’s Bayou,” was released in the late 1990s. Here’s what hasn’t — the language of our laws, particularly the Communications Decency Act (CDA) of 1996 and the Digital Millennium Copyright Act (DMCA) of 1998. The outdated language in these laws is being used to reframe the intellectual property protections and copyright provisions of NAFTA, our most important trade agreement.

Both the CDA and the DMCA were passed during the infancy of the internet. Google was barely born and Facebook didn’t come along until 2004. There was a valid fear that onerous regulation could stifle what seemed an invention of fabulous promise.

The CDA guaranteed “platform immunity” to ISPs for almost any illegal act their users conducted through them, even if the ISPs know about it or turn a blind eye, and the DMCA provided “safe harbor” from copyright infringement, creating a “take-down” process that puts the onus on the copyright holder – whether that’s me in my little office or a large studio with an army of attorneys — a process ineffective at best and, at worst, enabling a massive transfer of wealth from creatives to tech monopolists.

Now, more than twenty years later, these virtually unregulated monopoly internet platforms have grown from their fragile infancy into the largest and richest companies in the world, with attendant lobbyists wielding economic power in legislatures. And they want more protection.

The current NAFTA renegotiation is their most recent vehicle. Google and its allies want a stronger “safe harbor,” more immunity from illegal acts, and broad copyright exceptions in trade agreements. They want protection from “secondary liability,” which is critical for creatives in US law.

Secondary liability is sort of like saying if you allow your car to be used in a robbery, you’ve got a problem. If you profit by enabling piracy, that should be a problem for you too.

If this protection isn’t in NAFTA, countries who are signatories to this agreement could spawn platforms of their own – with a global reach – that would profit from piracy with impunity.

These platforms don’t need immunity from this liability. It’s the creative industries that need the protection, and the people who work in them need it most of all. We are an industry full of small businesses and independent contractors like myself – whether it’s union craftspeople earning middle-class wages or lonesome independent producers, or writers and directors passionately risking their livelihoods trying to bring fresh voices and insights that will enliven and enrich our culture.

We, the 5.5 million Americans who depend on copyright to make a living, need protection and we need to demand it.  We must demand the same level of accountability and responsibility for these monopoly platforms as the rest of American industry. Put simply, we must demand strong copyright protections in the new NAFTA. We will only win if we fight.

Unlike some of the other fights we may have in our future, this one won’t take much of your time. Join 76,000 other actual Americans (no bots allowed) and tell the negotiators to protect creative rights. You can sign the petition here.

Cotty Chubb is a producer and production executive. His most recent picture, “The Dinner,” starring Richard Gere, was released in 2017 by The Orchard.

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