In America during the 1950s, there were regular sessions of a body named the House Un-American Activities Committee. These sessions were like TV series in themselves in that nobody really knew what was going to happen in the next episode.
Content-wise they really shouldn't have had much to do with film and TV at all, but they did, and in one of these sessions they hauled up screenwriter doyen, Dalton Trumbo, to ask him what his position was on the so-called Hollywood blacklist. It seems he answered, "At the top of it I think".
Wit under pressure is a testament to the man's talent, but after they'd jailed him he found it tough to put his talent to work, and as a result, he became one of the first victims of piracy and actually promoted it himself. He worked out that the only way he could earn a living was to secretly write stuff like Roman Holiday and Spartacus, then let other people steal the scripts so he could split the booty when they were picked up by Paramount, MGM and the Academy Awards jury. Only in America? Perhaps, but it was a sad time for artists like Trumbo, as well as for the US.
Maybe not surprisingly for a country blessed with peerless storytellers, its people can turn their commercial hand to any writing at all. For example, the growth area I've been struck by most recently, centres around their car-bumper stickers. These now no longer limit themselves to telling you whether you are in the Sunshine, Peach or Wonderful Life State but they now also impart 10-word shards of insight that leave you wondering who is laughing at who. Best of the current bunch is the one on the back of those mirrored-steel trucks and SUVs, which burn up the plains from east to west. It reads: "Well, at least the war on the environment is going well…"
A cracker, you'll agree.
But it’s no less fun back in television. There are times when the topic of piracy in TV gives rise to the same kind of end-of-days comedy, and this is all the harder to understand when you consider that audiovisual piracy accounts for billions in lost revenues in the TV business, and that’s just in the US. Season six of Game of Thrones has just ended and it’s hard to imagine what the Iron Bank’s iron-faced managers would say if they knew that twice as many people had illegally watched their mythically expensive series for free, as were watching through good old premium pay TV (approx average cost for a package containing the series: €50+). It would probably be something like, "My office at 9 o'clock sharp, Mr HBO. And bring your leaky technology partner with you".
The problem gets worse not better as HBO and others wriggle to compensate for the losses: either the consumer price of pay-TV packages rises, with the €100 summit long-since scaled; or it fragments into indecipherable programme quantums, which add up to more than that; or it just gives itself another complicated promotional twist and generally gets people’s backs up. Nothing creates a thief faster than an unjust price for bread, and likewise, nothing gets a pirate reaching for the nearest illegal website faster than a programme they feel they’ve got a right to see but can’t.
There are times, we have to admit when our industry looks like it’s really trying to go the way of private medicine and high street banks - that is, convert itself into the product nobody wants to pay for but sometimes has to. If you think back to when Sky kicked off their coverage of live events at the end of the 1980’s there was a definite belief that they had improved the viewer experience and dragged some of our quaint old sports into a new digital era of spanking images and wall-to-wall emotion - think The Masters, The Ashes, The Champions League. And in the process, they seemed to make their 50 quid a month asking price sound like a favour to the armchair viewer. No complaints there - we were happy to pay for that, weren't we?
Fast forward though to the cash-strapped modern fan recoiling in horror at suddenly having to pay not one, but two subscriptions to follow just one team in one league. What are we financing now, they ask? Some kid's third or fourth Maserati?
And to add to this general queasiness, TV viewing has changed at quite a pace, with TV viewers now on the move more than ever, and wanting to take their programming with them. Whether it's in the garden, on the bus, away to their student flat or just on holiday. But whatever the direction they move in, they don't want to trouble their minds with rights, device restrictions, SD not HD, or messages which tell them, "Not available on this brand new TV set". Basically, they have no truck with any of the industry pillars which operators like Magine have to help keep in place in order to keep their word to the programme makers.
It seems that right now, viewers have already made that self-justificatory journey which tells them, “I already pay enough for TV shows – I am perfectly within my rights to steal this programme”. Hence we get rampant piracy, led by the most innocent in the class – our kids.
But is there any real will to tackle this? OTT operators like Magine have spent tens of millions on technology to track TV usage and to protect programming. On top of that, we have poured our admittedly entrepreneurial efforts into clearing rights with every artist in the food chain, from the Hollywood studio to the composer of the credits sequence ditty. And yet legal, monetizable viewing via the internet is still forced to jump through a thousand unlikely hoops by the same content creators/producers/distributors. Why is this? OTT may have the tools to tackle piracy and return most of the lost billions, but there just doesn't seem to be the will to let them do it yet. Or at least to help them do it by pursuing with the same bite, the TV operators who just take signals without asking, or don't give guarantees on content protection. Try doing that with water, electricity or even a hotel coat-hanger.
Meanwhile, with the passive acquiescence of most of the interested parties (creative, industrial, governmental), millions of viewers either take out satellite subscriptions in countries where they do not live or copy and share programmes daily. Or just find a website that does it all for them. Lets call it a fully-turned blindness of the eye rather than active permission, but it goes on. Because after all, a pound is a pound. Except that right now, it is illegal and left unchecked it pulls apart the broader process which creates and produces the programmes we watch.
It seems the EC may normalise part of the modern viewer's behaviour by allowing some sort of rights portability between member states. Hats off to them as a public organisation for doing that. But they could be held up by the tricky issue of how to track usage accurately and therefore keep an eye on where - and for how long - viewers are stretching their TV watching rights. Are we on a two week holiday in Ibiza or did we move there in 1992? And if we did, should it matter if we pay our license fee in our country of residence?
The slightly weird thing is that with OTT technology and cloud-based rights management, there is no need for this TV twilight zone to exist, or for pirates to be actively encouraged by abusive or incomprehensible pricing. Magine (and perhaps others) can block illicit viewing down to the accuracy of a postcode. And can allow it where it has been properly paid for, either via license fee or subscription. With a simple flick of the 'cloud switch', British viewers would be able to watch the BBC on holiday in Amsterdam and Americans, the NBC in Abu Dhabi, and they would not infringe a single law, upset a single local operator, or deprive a single artist of their due reward. It's just about precision rights management and the will on the part of the content owners, to back it.
And what are current operators doing to rein in those galloping piracy stats that are making off with their revenues and their partner's programming? Well, if you were to judge purely on results you'd have to say that whatever it is, it's not working. The BBC is about to end a two-year 'consultative process' to license its channels to OTT operators. Whatever went on in that vast investigative exercise it came up with the idea that restricting mobile devices to in-home viewing would be a good idea. To describe this as swimming upstream would be an insult to salmon everywhere - is there any chance at all of a viewer understanding why their tablet stops showing a programme when they walk outside? Or why they can't tune in on 3G if the coffee shops wifi is down or a bit slow. Start doubling the piracy stats.
Netflix, on the other hand, originally prided themselves on easy access and a simplified pricing model which they claimed was reducing piracy from 20% to an acceptable 7%. We would share their pride if the story stopped there. In fact, what they were really doing was allowing subscribers to access their content anywhere in the world, via VPNs and proxies, with all the viral effect that had on sales. They then took steps to block this illegal practice, but only when it started to mess with their new licensing business, which lo and behold, was actually making more money for them through selling rights to broadcasters territory by territory – the very system they set out to 'liberate' us from with their binge-when-you-want approach.
Why did content owners not push them to plug this leak before, as an OTT distributor like Magine would be forced to do? The easy answer is because some operators really were OTT in what they were paying for those rights. And there is no difficult answer.
In other words, the rights holder's position was, ”The billions I’m losing to piracy is already written off, and anyway it isn’t quite as important this year as the €100M I can get right now on my shift to make the numbers square up. And if I'm crafty with the PR, the local broadcaster (who's also bought my series for stacks of cash) will blame piracy, not me...."
So they sup with the devil and give the can a hearty kick down the internet highway. But then, in the end, some poor soul has to pay for this and that will be the viewer who still follows the rules. It will always be those who fork out unthinkingly each month who foot the bill, whether it's because they don't miss the money because they believe it's a fair price, or simply because they have never knowingly broken the law and feel uneasy about doing it.
And anyway, it isn't all gloom, is it? The Aereo case in the United States showed that it is possible to act against operators who access content without the permission of the owner. Except that, it is just one case which has not been applied yet to any similar cases outside the US.
So the message you can begin to glean from this is; don't be too sympathetic when you read that by midnight on Monday the 25th April, just 21 hours after the latest Game of Thrones premiered, 10 million illegal downloads of Episode One had been detected just in Australia. Because the truth is, nobody very big is really that worried about it yet, and if you are a pay TV subscriber, you’re the one paying for it anyway.
And so the operators hope that while you are pitying them as you would a friend who'd just been burgled, you won't notice that your subscription price has just taken a hike upwards. There really are no free lunches in this and the unspoken digital rule is that a worldwide, virally-marketed piracy business can do wonders for the visibility and future sales of a product. High-profile, globally simultaneous releases have just sexed-up the challenge. Cool pirate captains the world over, now want to 'watch-it-for-free and chill'.
So while enough remaining viewers continue to pay inflated prices for their rigid TV package and while nobody feels like backing legitimate OTT solutions to track their content properly we can all rest easy and look forward to getting a consolation sticker on next month's pay TV bill. Something like "At least the war on piracy is going well".