Ever Wonder Why Netflix Offers Bad Movies? Blame Washington, Not Hollywood

With streaming video making the dissemination of video cheaper and easier, why are most classic domestic and foreign films not widely available via Netflix streaming?

A few weeks ago, I noticed a sandwich board outside one of New York’s last video stores, listing directors whose work is unavailable via Netflix streaming: Douglas Sirk, Agnes Varda, Rainer Werner Fassbinder, plus a few others only minimally represented on the streaming video service. The writer of the sign, while criticizing Netflix, was actually being kind; Netflix is notorious for its lack of great films, and much of what it offers can charitably be called “filler”.

It’s a paradox of the digital age; the Internet has the potential to make just about every video ever digitized easily accessible — technologically, the possibility of an online, comprehensive video library exists — but the economic and legal realities have prevented it. Furthermore, the perversities of capitalism have ensured that mediocre or even bad films have a much greater chance of appearing on Netflix than something great, or at least good. How else to explain the inclusion (at this writing) of the 1995 remake of Sabrina but not the 1954 original? The undistinguished battle-of-the sexes rom-com Words and Pictures with Clive Owen and Juliet Binoche, but no Tracy and Hepburn classics?

Face it: When Netflix Instant offers more of Hugh Grant than Cary Grant, you know that customer preference and artistic quality are not exactly the top selection criteria.

It wasn’t supposed to be this way. A decade ago, Chris Anderson of Wired magazine wrote an influential best seller called The Long Tail, in which he extolled the internet’s ability to satisfy people’s most arcane artistic interests, from books to movies to music. In the book, Netflix’s enormous and diverse DVD inventory played a starring role.

The key reason why Netflix was able to cater to rarefied tastes (along with very mainstream ones) was not solely because of the Internet; it was because of the materiality of the DVD. The Internet as a delivery system was key, but the old-fashioned tangibility of the objects being sold was crucial, as well. Back when Netflix bought DVDs for rental, it owned those DVDs in perpetuity, and no rights holder could stop the company from mailing them out to customers in those iconic red envelopes. The Netflix business model relied on a pre-digital copyright law known as the First Sale Doctrine. This law was initially intended to apply to books; it ensured that libraries and used bookstores were lawful enterprises. According to the First Sale Doctrine, once a print book has been purchased, it can be loaned, rented, or resold without the permission of the copyright holder.

In 1981, over the objections of the movie industry, Congress extended the law to videocassettes, which led to the creation of library video collections, video rental stores, as well as the best movie Kevin Smith ever made, Clerks.

After 1981, the number of pre-recorded videotapes and the outlets for obtaining them multiplied. Not that there weren’t dissenters: in 1996 Susan Sontag published an essay in The New York Times titled “The Decay of Cinema“, in which she decried the lazy practice of watching videos at home. Still, the reality was that not everyone in the country could live in an apartment in a hip part of Manhattan within walking distance of the West Village’s Film Forum. For much of America, the only way to watch anything other than Hollywood’s latest blockbuster was at home.

I grew up in upstate New York in the ’70s and ’80s, and first saw Citizen Kane and Alexander Nevsky courtesy of the local PBS station. By the time I was a college student, my housemates and I were renting La Grande Illusion and Stolen Kisses from a local video store, and making trips from our suburban campus into Boston and Cambridge to catch Blue Velvet and Women on the Verge of a Nervous Breakdown as well as every film noir being shown at the Brattle Theatre.

Granted, the Brattle Theatre was the best place to see movies, but at home in front of the television is where we first got hooked.

The advent of streaming video is its own golden age, of course. It’s hard to dislike a technology that allows you to sit on your comfortable couch and watch His Girl Friday and Nothing Sacred. (All summer long, I’ve felt a surge of gratitude for video on demand every time I’ve glimpsed a subway ad for Ted 2.)

Still it’s important to remember why those two classic Hollywood films are so readily available on YouTube and Netflix. They fell into the public domain when some studio (failing to realize what reliable cash cows they could become one day) neglected to renew their copyrights. Most of the rest of sound film history (and even the final years of silent), is shackled by copyright, unlikely to ever be set free.

These battles over copyright and digital piracy are heated and wide-ranging, but there’s one nuance that isn’t, it seems to me, well understood. In the 18th century, copyright was deemed essential for protecting the rights of creators, but it was limited in scope, lasting only 14 years (with the option to renew for another 14). Protecting the rights of living creators is integral to the whole notion of copyright. Today, however, copyright, thanks to lobbying from the entertainment industry, just keeps being extended for longer and longer terms. (Only works released in 1923 or earlier are guaranteed to be free of copyright restrictions.) When it comes to movies, that means that the people making decisions about whether a movie from 80 years ago will be accessible to the public now has nothing whatsoever to do with creating them in the first place.

If the remaining great stars of the past — for example, Olivia de Havilland, Kirk Douglas, Kim Novak, and Eva Marie Saint — were for some reason to insist on limiting access to their films, I’d actually be more than happy to respect their choices. But the decision isn’t up to actors, writers, or directors; it’s the studios that own the copyright. I hate knowing that studio executives their grandchildren’s age (and not even their actual grandchildren) are deciding the fate of their films — and, by extension, these actors’/writers’/directors’ reputations. After all, an actor (or director) is only remembered as long as his or her work can be seen. It’s the reason why Jean Harlow is still an icon while fellow Kansas City native Jeanne Eagels, a Broadway star of the ’20s who, like Harlow, died at the height of her fame, has been forgotten (save perhaps for the 1957 biopic starring Kim Novak).

At this point in the history of home video, viewers have shifted their allegiances to streaming video; the market for DVDs has atrophied. So now, rather than potentially being the DVD-by-mail provider of Michael Haneke for people living in rural Idaho, Netflix has reinvented itself as the streaming video provider of blockbuster original programming along with a lot of movies that are so crappy they’re being sold by their rights holders for a song.

I feel bad for those hypothetical Michael Haneke fans in rural Idaho. While the US Postal Service was able to deliver their Netflix DVDs without a hitch, many of them can’t even watch Orange is the New Black if they wanted to; Internet service throughout rural America remains subpar. Which means that a lot of people with Long Tail tastes are being left out in the cold, no matter what they want to watch — and not just in the chillier and more remote parts of Idaho. (Chris Anderson, by the way, has wisely chosen to abandon cheerleading Netflix and to write about 3-D printing instead.)

DVDs and other forms of tangible media allowed society to take advantage of the First Sale Doctrine. As long as something had come out on home video at some point, there was always a possibility of finding a used copy. Furthermore, libraries were allowed to make copies of a video if the film in question couldn’t be bought at a fair market price. This allowed college professors to tape otherwise unavailable movies off television or to make copies of their friends’ videocassettes. Here, copyright law and technology dovetailed to serve viewers (in this case, film students) whose needs were too specialized to be served by the mass market.

With streaming video, the First Sale Doctrine no longer applies. Streaming video is a service, services are subject to contract law, and contracts always supersede copyright law. If you’re one of the 62 million Netflix subscribers, I suggest you check your Netflix user agreement. You have, I guarantee you, signed away the rights afforded to you by the First Sale Doctrine. Declining to relinquish those rights, of course, means that you aren’t allowed to use the service at all. It’s a Catch-22.

What’s happening is that, in the words of legal scholar Ann Bartow, “copyright owners are using the attributes of digitalization to realize their own normative view of ‘what ought to be,’ absolute control over copyrighted works that are embodied in electronic formats.” So, as the technology to disseminate all kinds of art and information becomes more sophisticated, so too does the means and the motive to restrict access. If entertainment industry executives are smart (and they are) they’ll make sure that streaming video turns out to be a whole lot more expensive for consumers than home DVD rental.

At the moment, home video viewing can be expensive, indeed. If I want to watch Josef von Sternberg’s Dishonored, hardly an obscure film, I can’t rent it or stream it. There’s no other way for me to obtain it but to buy it as a manufactured-on-demand DVD for $20. At that price, watching a movie at home becomes about twice as expensive as watching it in a theater. This is bad for consumers, but even more problematic for critics, journalists, students, filmmakers, and scholars, all of whom require inexpensive and easy access to very specific movies — oftentimes the ones with expensive licenses that Netflix’s business model won’t permit it to buy. (For example, critic Jon Brooks apparently spent almost as much time searching for a DVD copy of Sweet Sweetback’s Baadasssss Song as he did writing about the movie.)

Don’t cry for me: I have a job and can afford the occasional $20 DVD. Of course, the job I have makes me especially concerned about the economics of obtaining video for students and scholars — I’m an academic librarian in charge of a video collection. Unlike the print books that I continue to place orders for, DVDs require players, which may soon be in short supply, either because manufacturers will stop making them or because cash-strapped universities will stop buying equipment to support a dying medium. Right now, I can legally buy that $20 video for the library and allow people to check it out indefinitely — that is, until someone accidentally steps on it or leaves it in a rental car during winter break.

It’s not just Netflix that has to worry about the unsustainable cost of buying movie licenses; universities and libraries do, too. I think it’s safe to say that in the future, universities will be buying only as many streaming video licenses as they absolutely need to run their courses; it’s hard to imagine a class at any place other than the wealthiest schools being allowed to acquire more than a handful per semester. That will mean the end of most library collections, and the ability of students to immerse themselves in film, which I think most people agree is a vital part of 20th-century cultural history.

Part of the reason why Charlotte Bronte and Walt Whitman remain canonical is because their work has been universally available in libraries in the English-speaking world for more than a century. Today, thanks to digital technology and the fact that 19th-century books are all now in the public domain, their works are more accessible than ever in cyberspace. If it’s just as important for an educated person to know Charlie Chaplin and Orson Welles as it is to know Bronte and Whitman, we should find the will to make copyright law sane again.

I want living directors such as Spike Lee and Varda to have some say over where and how their work is seen. It bothers me that Douglas Sirk and so many other cinematic greats aren’t available on Netflix, since they’re in no position to profit posthumously from Hollywood’s business strategy of creating false scarcity. If they could speak to us, surely they’d say that they’d prefer to maximize their films’ reputations rather than some corporation’s bottom line.

Rachel Paige King is a recovering journalist who currently works as the Media Librarian at Long Island University in Brooklyn.