Wolverine Versus the Pirates

April 10, 2009
A thought by James Berardinelli

Let me start with a disclaimer: In no way do I condone or support the illegal downloading of copies of the Wolverine work print. Although I am fully cognizant of where and how to download it, I have not done so nor will I do so in the future. Having written that, however, I believe the situation creates opportunities to discuss a series of interesting issues related to piracy, copyrights, marketing/promotional strategies, and critics blinded by stupidity or arrogance.

Perhaps the first question to ask is whether this act of piracy will hurt Wolverine's bottom line. My opinion is that it will not. In fact, I can make an argument that it may help. My reasoning goes something like this: the hundreds of thousands of individuals who have downloaded a copy of the work print did not do this in lieu of seeing the film theatrically. They did it for the "prestige" of being able to say they saw it early. Regardless of whether they like it or hate it, they'll still pay money for their opening weekend ticket. To be sure, a percentage of the downloaders will not see the movie, but most of those wouldn't have seen it anyway. Are these assumptions unreasonable? No. I have spoken to several individuals who have downloaded Wolverine and all of them remain excited about seeing it in a movie theater. They view their home copy as little more than a glorified, super long trailer.

Those who worry about the impact of downloading on the theatrical box office need look no further than Taken for a measure of solace. Because that film was released very late in its life cycle in the United States, it was already out on DVD in parts of Europe. As a result, pristine, DVD-quality copies of the film were readily available, and the download counts were high. Despite that, however, Taken became one of 2009's early, unexpected hits. There's no evidence that the bottom line was negatively impacted by piracy. But could an aspect of the movie's positive "buzz" have been created by those who downloaded the film and were impressed by it? There's no way to determine that for sure, but it's at least worth thinking about.

When it comes to doling out punishment for the Wolverine infraction, Fox should focus its efforts on uncovering the leak. Tracing the original uploader makes sense. Going after individual downloaders does not. The fundamental problem is the increasing disconnect between the movie studios and their customer base. Put your ear to the ground and listen to what high school and college kids are saying: The concept of downloading being "illegal", even if the material is copyrighted, is absurd. It's not "stealing" - it's copying (that is to say, the person possessing the original does not lose it). These aren't isolated opinions held only by a fringe group of nutjob anarchists. Either a growing minority or a majority of those in the under-30 category believe this. There is a cultural shift going on that, sooner or later, will destroy the current business model. Movie studios ignore this at their own peril. What happened with Wolverine is unlikely to be an isolated incident. In fact, it may be the first shot across the bow. It is certainly the first instance of a blockbuster being so widely, blatantly, and publicly compromised.

If distributors were smart, they would caucus and figure out how to make this work for them. There are conspiracy theorists who believe Fox intentionally leaked the work print as a form of underground publicity for a movie that was being ignored as hype for Star Trek built. What better way to get Wolverine into the public eye than to invent a scandal? Personally, I don't buy it. Studios are notoriously risk averse, and this would be a risky move. But maybe there's a lesson to be learned. Could studio-sponsored "leaks" work as a form of publicity for downloaders? What about partial movies that are missing key scenes? Or poor quality copies? I'm not proposing that studios pirate their own films (actually, maybe I am), but it's time to hire some really smart college grads who understand the market and the mindset of their generation and get them to do some out-of-the-box thinking.

Meanwhile, there are the legal implications to downloading. While it may not be "stealing" in the traditional sense, it is copyright infringement, and that is punishable under current laws. The problem is, the laws being applied were written during those pre-Internet Dark Ages. The entry of VCRs into the market caused a seismic revision to copyright law in the early 1980s, and it's past time that statutes be re-written and/or re-interpreted. The doctrine of "fair use" needs to be expanded and altered to make sense in the current environment. I'm not going to set forth a detailed proposal, but common sense argues that "fair use" should apply when a download meets two criteria: no money is being made by the downloader and no money is being taken from the copyright holder. The Devil in the Details is figuring out when those two conditions are met. Gray areas abound but it's clear that something has to be done.

Finally, a word about Roger Friedman, the entertainment reporter who reviewed Wolverine based on an illegally downloaded copy of a work print. He deserves his fate. Not only is the guy unethical - under no condition should the workprint of a movie be used for a review (unless the studio has specified that it's "screening ready," which usually means it is final except for some minor color correction) - but he's stupid. Admitting you did something illegal in order to obtain the copy of the movie you reviewed is just plain dumb. Friedman would probably have kept his job if he had merely written a review. What got him in hot water was boasting about how easy it was to download the copy. Yes, it's easy, but a man in his position should not have done it. And, if he did it, he certainly shouldn't trumpet it to the world. It boggles the mind.

Am I curious about Wolverine? Sure, but not enough to go online and download a copy. I don't need one and I don't want one. Even if it was the final theatrical version, I wouldn't do it. I can wait three or four weeks. I have never understood the need to see something NOW. Whatever happened to the delicious flavor of anticipation - of waiting until Christmas morning to open the presents? And why would anyone want their first view of a movie to be a mediocre copy on a computer screen with numerous unfinished special effects and 20 minutes of scenes missing?

I can understand why someone who doesn't care about Wolverine might download a copy, but since he or she isn't motivated, why bother? Most of the downloaders are fans - because IT is out there, they must have IT. It's a compulsion. The temptation to watch is too great to resist. The result is that they're doing a disservice not only to Fox but to themselves. Those who really love the character of Wolverine and who have been waiting for the movie should stay away from this downloadable work print. The release date is May 1 and, to best experience Wolverine, that's when they should see it.