On the morning of 9 January 2014, a copy of The Secret Life of Walter Mitty appeared online, quite illegally, as tends to happen around this time of year. Those who downloaded the film were surprised to find the screen emblazoned with the name of their unlikely benefactor: Ellen DeGeneres, plainly identified by the glassy block letters of the watermark. It seemed doubtful that a beloved TV personality would conspire to leak a high-profile Ben Stiller comedy to the internet, true. But the evidence was compelling. It seemed Ellen was responsible for piracy.

Eventually the leak was deemed the fault of a lower-level Ellen DeGeneres Show employee, and DeGeneres herself was duly exonerated. But the crisis proved a reminder of how vulnerable Hollywood movies are to theft – and of just how many sources of theft there are. At this point holiday piracy isn’t simply common: it’s inevitable, unavoidable. Which makes it rather difficult to assign blame. Had DeGeneres’s staff been any less negligent, to be sure, The Secret Life of Walter Mitty would have found its way into the clutches of pirates by alternative means. They have thousands of opportunities. A single lapse in security is all they need.

The Hateful Eight piracy leak traced to DVD sent to Hollywood producer Read more

The latest films of note to surface on torrent sites feloniously are The Revenant and The Hateful Eight, a pair of well-reviewed, hotly anticipated action-dramas poised for critical and commercial glory. They shimmered into view early on Monday morning, and by that afternoon, when Variety reported the case, they had already been downloaded more than 1m times combined. Both films are due to arrive in theaters in limited release in the United States this weekend, on Christmas Day, before expanding nationwide in mid-January; both have been screened extensively for film critics across the country, in order to qualify for critics’ group votes, and both aspire with some confidence to perform well at this February’s Academy Awards. Both will be affected by this leak. It’s difficult to say for now to what degree.

How does piracy of this sort happen? You may be imagining a man in an oversized coat squatting in a theater with a camcorder nestled on his knees, but no – it’s nothing so precarious. Every winter, as the year in moviegoing comes to an end, studios and distributors mail their most prestigious titles to people with the power to give them awards. These complimentary DVDs are known in the industry as For Your Consideration screeners, and a great deal of them make their way around the country annually. I receive them in my capacity as a professional critic. And consequently I have about 50 FYC screeners stacked on my desk beside me right now, including copies of Spotlight, Concussion, The Big Short and Steve Jobs.

Facebook Twitter Pinterest Leaky … Kurt Russell, Jennifer Jason Leigh and Bruce Dern in The Hateful Eight. Photograph: Andrew Cooper/AP

There are hundreds of film critics in America – all of them equally furnished with coveted films. The studios, meanwhile, also express-ship screeners to voters in the Academy of Motion Picture Arts and Sciences, an organisation whose membership sprawls into the many thousands, as well as to various industry professionals relevant to the promotion and exhibition of the film. The Hateful Eight’s leak has been traced, according to the Hollywood Reporter, to Andrew Kosove, co-CEO of the production company Alcon Entertainment – though, like Ellen, he denies being personally responsible.

Still, it could have been anyone. When a film like The Revenant or The Hateful Eight emerges where it shouldn’t the list of potential culprits is vast. Even if we’re fully committed to keeping these things off the internet the danger still looms. How difficult do you suppose it would be for one of us to misplace The Martian on the subway or lend to the wrong kind of friend Bridge of Spies? (“You agree to destroy this screener when you have finished viewing it,” reads the small print on the back of my Sicario DVD – quite an honour system.) The pertinent question isn’t how high-profile piracy happens. It’s why it doesn’t happen faster or more often.

Many of the films whisked before the eyes of critics during awards season have been seen by them before: our attention is requested back toward films released earlier in the year. This kind of screener invariably presents to the studio a lower order of threat. Perhaps a film like Black Mass, released theatrically in the US in September, stands to lose a share of the DVD rental market when its high-quality FYC screener winds up online. But it’s already been afforded the opportunity to play to an audience with no other ready means to see it. The Revenant and The Hateful Eight are at a distinct disadvantage here. If you want to watch either this evening they’re quite within reach, provided you’re not put off by scruples. Add to this the force of the hype the studios themselves have been actively producing and you have an unenviable situation: a huge demand to see a film and as yet only one way to see it. Can you blame an audience for partaking?

This kind of piracy, in other words, is at least partly a problem of timing. The Revenant and The Hateful Eight are opening at the very end of 2015 minimally, in major markets, for the simple reason that their studios wish for them to qualify for this year’s Academy Awards; the “proper” release, the worldwide rollout, they are reserving for the following month. This system is precisely the problem. As the reviews glow and the Oscar buzz deafens, the ordinary moviegoer is left to look on covetously. The only people welcome to watch the film early are those empowered to laud it. And it’s during that period of exclusivity – when the movie is circulating among voting bodies but to an eager viewer remains out of reach – when pirates are most likely to strike. It’s hardly surprising. The pirates have a captive audience.

The solution isn’t necessarily an end to screeners; that was attempted a decade ago, after the first flourishes of online piracy, until film-makers objected that without screeners smaller films would go unseen. The real problem is what happens when studios manufacture an occasion for a select few to enjoy something the general public can’t yet – when some people, in other words, can see a film long before anybody else. Thrusting a deserving film into a critic’s or Oscar voter’s view is an admirable cause. But every film ought to be for everyone’s consideration simultaneously.