A year ago, I wrote an essay about piracy (and, implicitly, about online archives, be they “legal” or otherwise) as the source of a new type of cinephilia and method of film archival, starting from the case of the online group “la loupe” and going down to the “the founding figure of modern cinephilia” (as I put it), the legendary Henri Langlois. In the meantime, “la loupe” is gone (or at least, from Facebook), and in the time that passed since I wrote that text – not without feeling guilty, thinking that I might have contributed to the situation by making the group visible, nor without a message sent to me by the administrator of a piracy group that I’d “better not mention their names next time I write about them”; well, at least he didn’t question my “good intentions”! — I kept thinking about the shortcomings of that text, written in one of the few moments of utopianism of the pandemic years, about one of the few phenomena that could inspire a utopic feeling. After all, the idea of utopia is grounded in idealism, in a possible reply or manner of organizing model in response to current circumstances – and as legitimate as it was not to discuss negative phenomena in the article at the time, I now feel that I might have been speaking from the deceptive, quicksand-like place of the “end of the pandemic”.

For all the talk in 2020 and 2021 about the online medium and the supremacy it had gained under the circumstances of the pandemic, predictably and understandably so (and under the influence of new crises that have rightly taken over the popular consciousness and media agenda), the subject has slowly vanished in the world of “post”, possibly also because people don’t want to look back on those traumatic years. But the discussion shouldn’t be left hanging (for example, what do we do with all the online festival infrastructure now that there are no more restrictions on cinemas?), especially as the online medium proved its worth in those years, in spades. But mostly also because two recent cases, as different as they are eloquent – that of the Internet Archive and the HBO Max platform–, expose how fragile the online environment really is when it comes to its function as an important archival resource – especially when it comes to cinema – and the ways in which it is at the mercy of big business, big money and the modern understanding of copyright/copyright. As my colleague Călin Boto put it, “their [archivists’] fight is not against the pirates, but with us”.

I’ll start with the case of the Internet Archive (which, incidentally, is the institution that best illustrates Călin’s words), one with potentially significant implications for the way we relate to information available online, and which represents a new chapter in the eternal battle of the big intellectual rights holders against digital piracy – which could have legal ramifications in terms of how public libraries function. The Internet Archive – based in San Francisco – was sued in the summer of 2020 by four extremely powerful publishers (Hachette, HarperCollins John Wiley & Sons, and Penguin Random House LLC) for the way it expanded its online book lending system during the lockdown in springtime, a project dubbed by IA as the “National Emergency Library”. More on the fine print of this case can be found in VICE Motherboard’s complete article on the matter. Still, in short, if the four publishers are successful in their lawsuit, the entire existence of the website, a fundamental institution of the internet and free access to information in the digital age, is also threatened.

Let’s take a look at their collection of films – in fact, a mix of features and shorts, trailers, and various old film clips – which contains over 86,000 (!) items, of which about 15,000 are feature films. If one is to sort them by popularity, a mixed canon is revealed – everything from cult masterpieces like Michelangelo Antonioni’s Blow-Up, Akira Kurosawa’s Seven Samurai, Star Wars, and Night of the Living Dead (the most popular film on the platform, with 3.4 million views), to various pornographic or exploitation films; among the most popular films we can find, for example, an American propaganda film about drug use, Reefer Madness (d. Louis J. Gasnier, 1939, almost 900,000 views) and a nineties’ comedy from Australia: Dallas Doll (d. Ann Tuner, 1993, over 750,000 views). The collection is awe-inspiring on the heritage film side (the silent film collection has over 3,500 titles), seeming to house mostly films whose copyright has expired or not been registered (George A. Romero’s horror classic being one of the most famous examples in cinema history in this regard). Why am I mentioning all this? Precisely to point out that the massive loss in this case will be of films that can’t produce revenue anyway in the current configuration of copyright laws; and of films that, beyond torrents, probably can’t be found anywhere else.

But the Internet Archive is not limited to its collections of books, film, music, images, or software – its most powerful tool is the famous Wayback Machine, which, through its crawling algorithms, archives snapshots of the entire internet and stores them in a huge library, making it easy to access past versions of webpages. It’s an extremely useful tool for researchers and journalists looking for digital footprints that have disappeared in the meantime, due to various reasons (website redesigns, improper digital archiving, hiding traces, etc.) – the two journalistic investigations I’ve written about ghost-festivals would have been greatly hampered without the access to the now-vanished pages of the frauds that I looked into. But there are other uses: for example, one can research film festivals that haven’t archived their previous editions, or that have disappeared: while the now-defunct NexT short film festival’s website has been taken over by a junk domain, the Wayback Machine allows us to go back in time, from 2011 (the date of the earliest working capture, corresponding to the festival’s 6th edition) to 2018 (the year of the last edition). With the demise of the Internet Archive, we also risk the loss of a significant piece of modern history, not just in terms of cinema and the arts, but truly in the fullest sense of the term.

The case of HBO Go, on the other hand, is a thornier one. First, because when you are involved in such an undertaking, the old neoliberal adage is always whispered in your ear – Whatever the company decides to do is its own business, you poor simpleton who blindly checks off „I have read and agree to terms and conditions”! –, but also because what lies at the heart of the dispute is not necessarily the kind of prestige cinema that is usually worth fighting for under the banner of cinephilia. (But to briefly come back to Langlois, wasn’t he also famous for saving everything in his impressive Cinémathèque Française, including films of dubious quality?)

In a nutshell, the problem sounds like this: following the merger of Warner Media (formerly Time Warner, owned since 2018 by telecom giant AT&T) and Discovery at the end of 2021, under “Warner Bros. Discovery”, the decision was made to unify the two media conglomerates‘ main streaming platforms: HBO Max and Discovery+. Only things weren’t that simple: the new company decided to save $3 billion (!), possibly as a direct consequence of the merger costs, so it had to massively cut back on expenses and bring out austerity measures. The first – with a major impact on the European film industry (even though the merger of the two conglomerates had to go through the European Commission for approval!) – was the decision to halt production of new series in the Nordic countries, Central Europe and Turkey (except France and Spain; no news on Romania at the moment, but things don’t look quite rosy). The second, related to the topic of this article, was to remove many of the series made in these territories from the platform – which, as far as Romanian content is concerned, led to the removal from HBO Max of Ruxx, One True Singer, Umbre (season III) and Hackerville for an indefinite period. (If they ever return, or are sold to third parties according to details provided by Warner Bros. Discovery, it remains to be seen.) All of this comes at a time when other streaming giants are faltering – like Netflix, which has lost at least two million subscribers this year, leading to a significant drop in the company’s stock price and substantial layoffs.

Still, this is a striking and unexpected decision on Warner’s part – especially considering that the major studios have already been earning more from home video than from traditional theatrical distribution for at least two decades. Obviously, my first question – though, again, not that this is a genre of cinema I’m passionate about (nor am I a series person) – is: where do these films and series go now? Who do they belong to now, if there are no physical copies “belonging” to the viewers around? Could they be taken in by some state-run archive – especially considering that in the States there are no real public film archives, except for the hyper-select Library of Congress collection (which preserves films years after their release), save for some film fragments lying in various libraries (n.b., mediatheques libraries don’t count)? Moreover, the practice of archiving series in the public system is virtually non-existent. And any private archive is ultimately far more unstable than a public one – no matter how powerful the entity that controls it, no matter how many procedures said entity put into place, they are not non-transparent, but also subject to extinction if their owner y goes bankrupt. And so a second question arises here: can streaming platforms be regarded as archives? Or are they, in fact, archives? (I’m not referring here to platforms such as Henri or Arsenal 3, which belong to actual archives.) Yes and no – after all, since they do not claim to have this status, they don’t make a corresponding claim to be exhaustive, an idea for which an archive strives. But if we look at an archive as a direct point of contact between the public and a work of art, no matter how stubborn the algorithm and how low it pushes a title down the page, then, yes, a platform is also an archive.

Things get all the more complicated given the big mergers and acquisitions that have eliminated an awful lot of studios from the film market in the last decade, creating a new monopolistic terrain in Hollywood, 100 years after the passing of antitrust laws first broke it: Disney, Warner Bros., Paramount, Universal and Sony Pictures (dubbed “The Big Five”) take in over 80% of the American box office, especially having assimilated some of their historic rivals – Pixar/DreamWorks/Lucasfilm, 21st Century Fox, Metro Goldwyn-Mayer. It’s complicated because all of these studios and conglomerates (whether they kept the ones they bought as subsidiary brands or assimilated them completely) are, in one way or another, descended from the old big Hollywood studios of the 20th century – and any such acquisition (especially when handled by mega-companies like Amazon or AT&T) means to also acquire the already-existing work of those studios, which often has a gigantic roster and includes many of the films that shaped cinema as we know it. But the case of HBO Go shows just how powerful the echoes of these mergers are beyond the borders of Hollywood, and also what can happen to audiovisual products that have no big lobby behind them (be corporate or rebellious cinephiles): they become the object of cynical and mercantile calculations. But there are groups in the industry that want to fight against these exact types of calculations.

We can end things on a positive (and, therefore, possibly misleading) note – just as I said last year, with regard to the “right” to pirate films made with public money, in the absence of systemic reforms capable of changing the paradigm in which film financing and exploitation currently operate, there is a need to think about short-term solutions that work within it. I was all the happier, then, when I read Vanity Fair’s article on the Missing Movies collective, founded this year – which, though it has adopted a fairly small number of mostly American films for now (though it announces that it wants to expand into other territories), proposes a model of film lobbying that would make it easier to digitally watch an out-of-print/distribution film through legal channels. Films that are therefore missing, not lost – an important distinction that suggests a different way of thinking about heritage cinema in terms of viewing – which they define according to five criteria: films left without a distributor (either through the disappearance of the original or the expiry of contracts), films with missing elements, films with an uncertain distribution rights situation (due to legal disputes), films that have never had a distributor or are neglected by the distributor (who are refusing, for various reasons, to re-release the film in question). The most famous film on the list is Elaine May’s The Heartbreak Kid (1972, remade in 2007), whose rights holder refuses to sell it to a distributor and is… a pharmaceutical company.

Beyond this first layer, what I find impressive about this initiative is not only that it takes on a bridging role between filmmakers, archivists, audiences, distributors, and platforms, deciphering complex legal situations as well as lobbying for copyright revision, but also that Missing Movies clearly points out the problems of (commercial) online archiving. “[We] Movie audiences are being told that streaming has made the entire history of cinema available for a simple subscription fee — or at least a couple of dozen subscription fees.” they write in the opening of their manifesto. “This is not true.” I don’t think I’ve ever seen the claim they make anywhere else – that the VHS era was superior to today’s (!) in terms of accessibility – and it’s always a pleasure to see a scathing critique of the monopolies that dominate the streaming market (“Now, with a few giant companies controlling the most popular streaming services and trying to outdo one another with original content, many older movies are being left behind” they write) and the effects of their market policies (“This is especially true of work created by women and members of the BIPOC, LGBTQ+ and disability communities. As a result, we end up with a skewed history of filmmaking and crucial gaps in our cultural knowledge and legacy”). I, for one, will keep my fingers crossed for them.

Main image: still from Irma Vep (1996), by Olivier Assayas.

Flavia Dima

Film critic & journalist. Collaborates with local and international outlets, programs a short film festival - BIEFF, does occasional moderating gigs and is working on a PhD thesis about home movies. At Films in Frame, she writes the monthly editorial - The State of Cinema and is the magazine's main festival reporter.