This paper was written for Michael Friend’s Archaeology of the Media course (MIAS 220). It discusses the technology of BitTorrent and online file-sharing. Noting the ways that file-sharing has often been connected with content piracy and illegality, I question whether rights holders may find ways of using services like BitTorrent legitimately and productively in order to facilitate access to their content.

---

Today’s world of media content distribution is largely digital, encompassing streaming movies and television, media downloading options, and digital video discs. In this digital world, from the perspective of content producers and distributors, file-sharing technology such as BitTorrent is often seen as nefarious, as tools for piracy of content copied and distributed by users without financial benefit to those who offer the content legally. However, in light of rapidly evolving technology and the innovations that this evolution engenders, file-sharing tools should be seen not as an enemy, but as potential assets to content distributors. Such tools can influence the progress of the technology used by legitimate purveyors of media content, and it can serve as the basis for further innovation and improvement to their distribution models. This is especially important with regard to rare movies and other media that are not currently available from legitimate distributors, as the most convenient way to access many of them is through private file-sharing communities that specialize in rare material. If content distributors take heed of the advantages of file-sharing technologies, they can improve their own operations as well as facilitate more viewers’ legal access to a wider array of content.

“File-sharing” is a unique innovation of the digital age with regard to its mode of operation, while the technology’s central purpose has existed in physical, analog formats long before the digital age. In the film-centered era, distribution of movies for personal use was divided between the purchase of legitimately available prints, often on smaller gauges (for example, Kevin Brownlow in his Napoleon book details his childhood collection of movies on 9.5mm film) and the underworld of film collectors who trafficked in illegally duped elements. The advent of home video in a sense helped make “bootlegging” of movies into a somewhat less esoteric pursuit; the practice was spoofed on an episode of the television show Seinfeld, in which some of the central characters become involved in an illegal movie-distribution ring, videotaping theatrical projections so that the poor-quality videotape copies can be sold on the black market. (Of course, the nebbishy character who touts his lawbreaking actions in order to seem “dangerous” is summarily arrested.)

The advent of the Internet, however, broadened the horizons of media sharing beyond the capabilities of the past, which were limited by the necessity of physical copies of the shared media at every stage of the sharing, from copying to distribution. Gavin Mueller offers a summary of the major developments in online file-sharing in a 2012 article for Jacobin Magazine. Although the article is not completely objective in its stance — Mueller paints a rather positive portrait of intellectual property “pirates,” seeing them as successors to the literal pirates of the high seas, necessarily attacking the capitalist economic infrastructure and the corporate-social hegemony that accompanies it — it offers a handy illustration of the development of what falls under the label of “Internet piracy.” The first files to be shared were software, turned into downloadable “warez” by programmers, and file-sharing then expanded to media like music and moving images. As an example of the way movie “piracy” transitioned from physical distribution to file-sharing, Mueller cites a 2004 incident of workers for Fox who hosted movies on their company’s servers for illegal distribution purposes.¹

A closer look at the evolution of file-sharing should examine some of the stepping stones of its history. Usenet was one example of a network over which users shared digital files. The late 1990s saw Napster, a notable peer-to-peer network mainly trafficking music in MP3 files. The Recording Industry Association of America (RIAA) took action against Napster, and Napster’s initial operation ceased by 2001. This conflict exemplified the pattern of opposition between media rights holders and file-sharing networks that still largely characterizes the relationship between the two parties: in general, file-sharing makes material available to users without their having to pay due costs to the rights holders, which casts the file-sharing networks as an adversary of the studios and other would-be beneficiaries of funds from the distribution of media. Later herein, I will examine whether this adversarial relationship is necessary, and whether rights holders might actually hope to benefit from harnessing and monetizing file-sharing technology for their own distribution purposes.

In the wake of Napster’s demise as a free file-sharing service, other peer-to-peer networks arose, such as Morpheus, Kazaa and LimeWire. These also met with lawsuits and technical impediments to use, such as the threat of malware and the necessity of subscription services. Newer paradigms were established; these were one-click hosting Web sites and BitTorrent networks. The three private file-sharing communities that I have examined, and that researchers such as Justin Mckinney and Mark Simon Haydn have studied in recent years, use either one-click hosting or BitTorrent. These communities are noteworthy because they focus largely on movies that are difficult to obtain for various reasons — having only been released on now mostly obsolete formats such as VHS and Laserdisc; having been released on DVD or Blu-ray but gone out of print; or not having had official video releases at all, to name some. Looking at the role file-sharing has played in the facilitation of access to content marginalized by rights holders can give insight into what rights holders have yet to accomplish in terms of serving the full range of their potential audiences, and how the file-sharing technologies ostensibly adversarial to them may be beneficial to them if they hope to reach the audiences of the more marginalized content.

One-click hosting services store content in sizable chunks on Internet servers, and users of the hosting Web sites can download the content files. One of the three private file-sharing community links to one-click hosting sites in order to provide access to materials. When I first became familiar with that community, in 2008 and 2009, the primary hosting services it used were RapidShare, MegaUpload, and MediaFire. Significant developments in the file-sharing world have changed those services’ primacy. At the time of this writing, RapidShare is little over a week away from permanent dissolution.² MegaUpload was famously established by Kim Dotcom, an extravagant figure who, Mueller notes, served as the perfect notorious-villain figurehead for file-sharing networks in the eyes of the copyright holders; Mueller presents him as something like the modern-day Internet analogue to Blackbeard. In January 2012, the United States Department of Justice shut down MegaUpload for facilitating copyright infringement. Although other hosting services shut down their sharing operations in the wake of MegaUpload’s seizure, the pattern familiar from after Napster’s demise recurred, and other one-click hosting sites came up, including Dotcom’s own replacement service, Mega, established in the New Zealand Web domain in 2013.

The main apparent alternative to one-click hosting has been the peer-to-peer file-sharing protocol BitTorrent. BitTorrent downloading has the advantage of numerous users not having to all download one large file from a single server. Instead, multiple users sharing a file become part of a “swarm” as they all download the file in “pieces.” Once a user has downloaded a piece, that user becomes a “seed,” or download source, for that piece of the file. In this manner, “peers” can download a file from any combination of users currently connected to the file in the swarm.

Two of the three private cinephile file-sharing communities that I have observed are BitTorrent-based. In these communities, users upload, or seed, and download, or “leech,” files hosted on a private tracker, so that users outside the group cannot access them. Users gain status in these communities by improving their ratio of content uploaded to content downloaded, with bonuses available for fulfilling user requests for seeds, submitting subtitle files for unsubtitled movies, and many other forms of contribution that benefit community members and/or the community at large. This sort of economy could potentially form the basis for a business model if rights holders such as movie studios might look toward embracing BitTorrent as an official means of distribution of their content.

Although there have been threats to certain BitTorrent hosts from enforcers of the law — The Pirate Bay and Demonoid are two examples — BitTorrent as a whole appears to be thriving. Some BitTorrent Web sites use foreign domains due to various concerns, such as the risk of being shut down. The Web site Kickass Torrents, for example, has shifted from the .ph domain to .to and then to .so, and currently it has moved back to .to. In addition, to use the same example, Kickass Torrents purports to attempt to combat copyright infringement by users in accordance with the Digital Millennium Copyright Act (DMCA), likely working to make a claim for its legitimacy against allegations that it, like other file-sharing sites in the past were alleged to do, facilitates distribution of material that violates copyright. The allegations of copyright violation against various file-sharing sites continues; in 2014, for example, the Digital Citizens Alliance (DCA) produced a report accusing Mega of operating for the purposes of copyright infringement.³ In February 2015, PayPal stopped providing Mega with payment services, due, at least in part, to government pressure; however, reporting of the case alleged overreach, criticizing the DCA report for not emphasizing that Mega “[b]y any standard…lives up to the requirements of the DMCA.”⁴ (In the interest of fairness, it should be noted that the Web site that published the referenced articles is sponsored by BitTorrent clients, indicating a potential bias.)

As movie-viewing technology moves into an age dominated by online streaming, questions of where file-sharing technology is heading are bound to arise. A Variety report from February 2015 cites, again, the DCA in alleging that piracy of movies is shifting from downloading to streaming as well.⁵ If streaming technology of superior quality is falling into the hands of content distributors separate from the rights holders of that content, then the rights holders need to set their sights on new streaming paradigms in order to combat the next wave of illegal distribution. In the meantime, however, despite the shift alleged by the DCA, BitTorrent appears to remain strong according to indications of operations both illicit and commercially approved, and it is worth examining the strengths and potential commercial uses of Bittorrent, especially with regard to material that is more difficult to acquire through commercial means.

According to Brad Stone, writing for Bloomberg.com, the most elegant and sophisticated innovation of BitTorrent technology appears to be Popcorn Time, a “far more user-friendly and less obviously sketchy” BitTorrent program established in 2014. Stone’s reporting gives the impression that despite efforts from the MPAA to thwart the creators of Popcorn time, further development of the program’s open-source code by other software programmers will likely perfect the technology to the point that the program will shift away from central servers and operate entirely by linking users’ computers. The report notes that Popcorn Time, due to its professional appearance and smooth operation, serves as a competitor to legitimate distributors of content such as Netflix. In assessing the competition, Stone concludes:

[S]tudios and legitimate streaming services will have at least one other way to answer [Popcorn Time’s] growing popularity: making sure legal alternatives are widely available, affordable, and desirable. In the U.S. and U.K., where Netflix and other legal streaming services are well established, Popcorn Time’s Google search numbers are still way behind.⁶

The conclusion evident here is that the ubiquity (and simplicity to use) of legal means of streaming content acts as a deterrent to using illegal means, such as BitTorrent piracy, for the same purpose. Movies and television programs can be streamed legally via Netflix, Hulu, and Amazon; watched as Video On Demand; and downloaded from iTunes — that is, of course, for people who pay the requisite fees for those and other services. As long as those services work well, keep up with consumer demand, and remain within reasonable price ranges, according to Stone’s conclusion, illegal file-sharing of the material that legal services offer can be relatively kept at bay.

However, the reliability of legal outlets to satisfy consumer demands for content only applies to the content that those outlets offer. Although that statement may appear tautological, it speaks to a deeper issue: the means by which audiences are forced to seek out content that the rights holders do not make available to them. In 2013, Calum Marsh highlighted ten important films that were not currently available on home video. In his introduction to the list, Marsh pointedly critiques the seeming ubiquity of the available legal content sources as he sums up the problem of “invisible cinema”:

The myth of home video is that everything is readily available for us to consume. We tend to perceive DVD, especially, as an exhaustive catalog of cinematic history, a format upon which even the smallest films have been released. But while Netflix continues to pretend that its users have instant access to everything worth watching, countless essential works both old and new remain unreleased or out of print throughout North America. And as great films languish in perpetual obscurity, their place in the canon [inevitably] diminishes, woefully unmentioned and undiscussed simply by virtue of being hard (if not impossible) to see.

We like to think that we have complete control over the films we chose to value, and yet basic availability—what’s easy to find and accessible to watch—greatly affects even the most fair-minded conceptions of the canon. The importance of celebrating those films without the privilege of even a simple DVD release can’t be overstated, and they need to be tracked down and championed whether it takes traveling to see a rep-theater screening or finding a bootleg rip online.⁷

Although Marsh primarily discusses the medium of DVD as the general legal mode of availability for movies, he implicitly acknowledges streaming services in his reference to Netflix and its “instant access.” And Marsh’s mention of “bootleg rips” as the only possible way to see many of the “invisible” films in question brings us back to the private file-sharing communities that specialize in these rare movies that are difficult, or next to impossible, to find copies of elsewhere. When it comes to providing access to these movies, communities that use BitTorrent and other file-sharing technologies clearly hold the advantage over the legitimate distributors of moving-image content. If both access to important material and respect for the law are to be valued, it is imperative for studios and distribution companies to search for feasible means of making these rarer movies available for public viewing, and file-sharing technology may offer them a place to start.

As mentioned above, I have looked at three private online file-sharing communities geared toward consumers of rare and obscure cinema. For the purposes of this essay, I will focus primarily on the two that utilize BitTorrent as their means of content access, as BitTorrent appears to be more promising than one-click hosting according to recent developments regarding content distribution.

Mckinney and Haydn conducted a case study of one private online film community; they did not disclose which one. In their write-up of their findings, they discuss users’ views on some of the ethical concerns of accessing media content in a manner that is not legal and that in numerous cases probably violates copyright. One user surveyed notes that the unavailability of the content via legal means makes the pursuit of that content through the online BitTorrent community worthwhile; this user, in addition to others, make the case that their efforts might influence commercial distributors and rights holders to make the content legally available: “I feel this provides a chance to rescue such films from obscurity or even oblivion, and sometimes an online audience may lead to commercial release for films that otherwise would never be discovered.” Echoing that sentiment, Mckinney and Haydn state: “83% of respondents indicated that films from PTs [private trackers] directly influenced their film purchases.” However, they add that “some distributors & retailers have argued that film downloads have negatively impacted sales,” and that studies do not appear to show conclusive results one way or the other.⁸

Despite the lack of empirical certainty, it would make sense for content distributors and rights holders to consider the demand for movies not currently available commercially that is being met by dealings such as those of the PTs for cinephiles. The fact that consumers are resorting to illicit means in order to access materials not offered to them legally should make distributors at least consider a change in their approach to deep-catalogue material that they would be within their rights to distribute. In the time since Marsh made his list of the top ten movies unavailable on home video, at least three of those ten titles have since become available. Jacques Rivette’s Out 1, a holy grail of rare cinema that was distributed on the PTs, and stills from which were used as illustrations in Mckinney and Haydn’s report, was released on DVD in Germany by Absolut Medien and Arte later in 2013. John Cassavetes’s Love Streams saw a Blu-ray and DVD release by the Criterion Collection in 2014, and Thom Andersen’s Los Angeles Plays Itself was released by Cinema Guild in 2014 as well. There is no concrete evidence to suggest that the aforementioned three films’ proliferation on the PTs directly led the respective distributors to release them in legally obtainable formats, but the distributors had to have been aware somehow that there was enough demand for the titles to warrant official home-video releases.

Movie studios and distribution companies release at least some of their deep-catalogue materials via manufactured-on-demand (MOD) DVDs and Blu-rays, although some companies do this more prolifically than do others. The MGM Limited Edition collection, the Fox Cinema Archives collection, and Sony Pictures’ Screen Classics by Request collection are examples of this type of releasing, while Olive Films releases deep-catalogue titles from Paramount on Blu-ray and DVD, Kino Lorber Studio Classics puts out films from the MGM catalog on Blu-ray, and Twilight Time issues limited-edition Blu-ray releases of Columbia, Fox and MGM titles. Specialty labels such as Flicker Alley have embraced MOD DVDs and streaming in addition to general releases on DVD and Blu-ray, and the Criterion Collection makes titles from its catalogue available via iTunes and Hulu. Farthest ahead of the pack in this regard among the studio labels, however, is the Warner Archive Collection. Having begun by issuing MOD DVDs of Warner’s deep-catalogue titles, Warner Archive has expanded to issuing certain films on Blu-ray as well, in addition to streaming numerous titles on its Warner Archive Instant service. Some of Warner Archive’s streaming movies are streamed in high definition despite not having been released on Blu-ray. Many of the titles released by all of the above-mentioned companies had previously been easiest to access — if not accessible solely — through the PTs, such as James Whale’s Show Boat (Warner Archive), George Stevens’s The Only Game in Town (Twilight Time), Otto Preminger’s Skidoo (Olive), and experimental films by Curtis Harrington (Flicker Alley) and Hollis Frampton (Criterion).

The option of streaming deep-catalogue titles appears to be a valuable one for distributors with regard to the future, if we choose to follow the trend toward streaming noted by Variety. If streaming from legitimate outlets is the easiest way to consume content for a majority of viewers, then it should be worthwhile for distributors to invest in streaming technology and content in order to hold their own against streaming piracy and competing programs like Popcorn Time. Additionally, if researchers for the media distribution companies have access to the workings of the PT communities, they may find some assistance in gauging the ways in which users gain access to rare materials, their processes of requesting certain content uploads, and a better sense of which titles are in demand and would be worth the companies’ investment to scan for legitimate releases. It is important to recall the fact, articulated by Marsh, that not nearly every movie viewers want to see is available on Netflix or any other streaming service, or even on DVD, and this fact motivates the cinephile file-sharing communities to operate. If a commercial distributor makes easily available a rare movie, previously primarily available on a PT, with better picture and sound quality than the version available on the PT, then the distributor has the advantage over the PT in terms of offering the best — as well as legal — access to that material, and is more likely to draw customers who otherwise might have sought out the movie via a PT and who are invested in watching that movie in the best quality available.

BitTorrent technology is not only used for illegal downloading of content, contrary to what may seem to be the case from the previous discussion herein. In recent years, distribution companies have actively made movies available through BitTorrent. One example from this year is the horror film Spring. Drafthouse Films has made Spring available for purchase as a BitTorrent Bundle; for a price comparable to what Amazon or iTunes might offer for a movie download, viewers can download a “bundle” that includes the movie as well as supplemental features.⁹ This practice of “bundling” multiple files together, common in making BitTorrent content, can help to maintain the practice of including supplemental material alongside the main feature, a hallmark of the DVD age that is not easily carried over to streaming. The example of Spring, along with other movies made available in the same manner, demonstrates what a collaboration between official distributors and BitTorrent technology might achieve.

The ways in which BitTorrent technology operates may be of use to distributors of content as well. As has been noted here, BitTorrent downloading is not wholly dependent on a single server and users downloading large files continuously, but each connected user becomes a potential seed for each piece that the user has downloaded. Thus, the burden for offering one constantly working server from which all users must download is significantly decreased. That burden is a real one whose effects have been felt by content distributors and users. Early in 2014, HBO Go crashed due to the large swarm of users attempting to access the finale of the first season of True Detective. That same year, the service crashed again in the wake of the season premiere of Game of Thrones. Distributors may be able to avert that unfortunate outcome by altering their mode of access to a model that reflects BitTorrent’s spreading of file sources; this would alleviate the pressure on the distributor’s server’s bandwidth when many people attempt to access content at once.

If media distributors are to consider adopting BitTorrent technology for their systems of facilitating users’ access to content, especially, for this essay’s purposes, to facilitate rare material in the manner of the PTs, it will be necessary for them to monetize the use of BitTorrent technology in a way that would benefit them financially and be acceptable enough for users to purchase service from them. One possibility lies in examining the economies that exist in the PT communities and finding ways to adapt these models to form a monetary model for the distributors. In the PT communities, user status is primarily determined by the ratio of material uploaded (seeded) to material downloaded (leeched). The higher the ratio — that is, the more material a user seeds than leeches — the higher the user’s status. The sites offer several other ways for users to increase their ratios. One site offers a ratio bonus to users for as long as they continue seeding material they have leeched. Users can pledge amounts of data from their ratios to whichever user will fulfill requests they have, such as uploading a certain movie to the tracker, creating and uploading a subtitle file, or re-seeding a file that currently has no seeds. When a user fulfills such a request, that user will receive the data amounts other users have pledged for the task, and it will be added to that user’s ratio. The economies of these sites are well regulated, and users who break the rules or fall below the set minimum ratio are penalized.

Distribution companies should be able to find ways to adapt such economies to their own monetary systems if they are to harness BitTorrent technology for their own content distribution purposes. The ratio system can be transmuted into a money-based cost-benefit form. For example, users could pay a subscription fee to access the content available for downloading — in the manner of Netflix, Hulu, or Amazon Prime — and they could gain benefits for exemplary seeding, or they could incur additional costs for leeching significantly more than they seed. Benefits that users could earn might include access to bonus content or some sort of V.I.P. or premium user status. Individual companies would have to work out these systems more carefully depending on how they decide to operate, but the economies that already exist in file-sharing communities should be able to serve as a basis for a monetized system using a similar framework and similar technology to those communities.

Although file-sharing technologies such as BitTorrent downloading have, overall, justifiably been seen as a threat to legitimate distributors of media content, it is clear that rights holders and distributors of content should be able to use these technologies to their advantage. Distribution companies have already made movies available, perfectly legally, through BitTorrent, and the importance of file-sharing communities in facilitating access to rare and obscure media should offer an incentive for distributors to make the same media available through legitimate means and to make file-sharing technology work to their benefit, making them better competitors to illegal downloading. If distributors correctly achieve those ends, then their business will benefit from offering products superior to that of the competition, and if they invest in distributing media that consumers demand but that has not yet been made available, then consumers will benefit as well from the increased access that these practices and technology will facilitate. A business model that serves users’ needs, in terms of both content and technology, and that serves the financial interests of the content’s distributors and rights holders should provide better access to more diverse content and benefit both consumers and content providers.

 

Notes

1. Gavin Mueller, “Gimme The Loot.” Jacobin Magazine, August 2012. Online at http://www.jacobinmag.com/2012/08/gimme-the-loot/.

2. Frederic Lardinois, “RapidShare Shuts Down.” TechCrunch, February 10, 2015. Online at http://techcrunch.com/2015/02/10/rapidshare-shuts-down/.

3. “Ernesto,” “Report Brands Dotcom’s Mega a Piracy Haven.” TorrentFreak, September 18, 2014. Online at http://torrentfreak.com/report-brands-dotcoms-mega-a-piracy-haven-140918/.

4. “Andy,” “Under U.S. Pressure, PayPal Nukes Mega for Encrypting Files.” TorrentFreak, February 27, 2015. Online at http://torrentfreak.com/under-u-s-pressure-paypal-nukes-mega-for-encrypting-files-150227/.

5. Ted Johnson, “Study: Piracy Shifts Away from Downloading to Video Streaming.” Variety, February 10, 2015. Online at http://variety.com/2015/biz/news/report-piracy-shifts-away-from-downloading-to-video-streaming-1201430189/.

6. Brad Stone, “This Torrenting App Is Too Good to Be Legal.” Bloomberg Business, February 26, 2015. Online at http://www.bloomberg.com/news/articles/2015-02-26/popcorn-time-torrent-app-makes-piracy-easier-than-ever.

7. Calum Marsh, “Invisible Cinema: The 10 Most Essential Films Not Available on DVD.” Film.com, April 10, 2013. Online at http://www.mtv.com/news/2770467/best-films-not-on-dvd/.

8. Justin Mckinney & Mark Simon Haydn, “Zoink.It: BitTorrent & the Creation of Private Digital Repositories.” Montreal: AMIA Conference, 2013. Online at http://www.amiaconference.net/wp-content/uploads/2014/01/AMIA_Poster_Zoink_It_Mckinney_Haydn.pdf.

9. Jena Keahon, “Drafthouse Films to Release Monster Romance ‘Spring’ as BitTorrent Bundle.” Indiewire, March 13, 2015. Online at http://www.indiewire.com/article/drafthouse-films-to-release-monster-romance-spring-as-bittorrent-bundle-20150313.