During Academy consideration time and also later, (including when he hosted the IDA Awards), Moore repeated his pledge to support distribution of independent docs. So when The New York Times broke the news of another Academy rules change and he came out to explain it on the Academy’s behalf, I initially applauded. But on closer examination, it is clear that introducing 200 screeners per film into the mix will not be the solution; it will, in fact, create an entirely new problem. On top of that, most quality (but small) documentaries with limited distribution will inevitably find themselves handicapped by the elimination of the committee process. These two changes will shift the bias from favoring one side of the industry – TV – to another – large distribution of bigger films- all at the expense of independent documentaries.

Michael Moore smartly pointed to the empty 95% of the glass in his reasoning for the new rules as if they will reverse low viewership altogether. But even if sending screeners was affordable, doable, and risk free, it wouldn’t change the general Academy members’ relatively low interest in documentaries. Moreover, mass-mailing of screeners (post-nomination) to members whose plates are already overflowing with DVDs at Academy time is the equivalent of independent documentarians shooting themselves in the foot when it comes to voting.

The Academy’s documentary qualification process was never perfect, but the branch has always tried to protect it from unfair interference – commercial or otherwise (for example, the films are blindly grouped and assigned to committees in order to avoid favoritism). The Academy continues to believe in its mission statement; why else would it still protect the Short Documentary category under the old rules even though shorts clearly are not theatrical at their core?

So what exactly will change with the new rules?

Sending all submitted films’ screeners to all of the members of the documentary branch gurarantees a new unspoken unavoidable norm; namely, some will vote without seeing all of the films. Or perhaps they will, but after only the partial sampling of some films (or any combination thereof...). Either way, it would become impossible to enforse the rule requiring members to see ALL considered films in order to vote. It is one thing to opt in, (volunteer and qualify for committee work), it is another for members to disqualify themselves from voting because they were not able to truly view all sixty five or so screeners thrown at them (which is a bigger load than any of the commeettees ever had)! Ironically, viewing of all of the documentaries will still be done by a group made up of committed members who are able to devote the time and who also have the conviction to see the process through – many of the same volunteers who have been in committees up to now. Moreover, the viewing process will shift away from theatrical presentations and to the small screen on DVD in uncontrolled environments. This will not only mean fewer people will see most of the contending films theatrically at any given phase of the process, but it will also mean a trend away from Academy-sanctioned theatrical screenings. People tend to pay attention/watch/vote for bigger films they have heard about. As a result, smaller films will fall by the wayside.

This negative trend is also true post-Nomination; smaller docs will not be able to sustain an extended theatrical presence or conduct additional screenings. Independent films will not be able to provide screeners to the Academy at large or arrange screenings due to expense and logistics. Instead, the Academy should increase the size of the committees rather than eliminate them. Broader-based committees would prevent the “Steve James Anomaly” from happening while keeping the process honest and closer to the Academy’s vision that one must truly watch all films in order to vote. Committees allow the branch to share the load; there is no other realistic way to implement the Academy prinicpals and keep this competition honest and fair.Post nomination, there is no better presentation forum than the Academy-sanctioned screenings. Nominated films are screened in a theatrical setting and admission is verified. Supplemental screeners are tightly controlled while members who had seen any of the films prior (at the initial voting phases or at the theatrical release) are accomodated. But with the new rules it would become AMPAS for the rich, VSDA for the poor.

Years ago, we got a call from the head of a major studio (in person – it was no prank) who wanted to view an Oscar-nominated film we handled that year. We did not send it. Later, a number of Hollywood’s top producers, directors, actors, and musicians (who had suddenly developed a passionate interest in our little film) asked for copies. In trying to be fair and inclusive (despite my better judgment), I granted these requests having secured promises from each individual to “vote their conscience.” Members came up with the strangest excuses as to why they couldn’t attend Academy screenings and therefore must be given screeners (offering their FedEx accounts and lots of sweet talk). I was naïve. Arthur Kohn, on the other hand, got it right every time a film of his came up for nomination. Whoever accused him over the years of abusing the system by limiting the voting pool forgot that he played by the rules, rules created to prevent fraud. A few weeks later, the studio discovered that a network it owned was also involved with our film and the studio head got his screener (promising, of course, to vote his conscience). The reality of the situation finally came into focus: this was the studio’s only nomination for top brass and one of its prized producers was attached. The studio was not going to let an Academy Award slip away.

As we approached the finish line, the studio’s powerful distribution arm offered to sponsor screenings of all the doc nominees (at no cost to any of the other films). It had also accumulated and disseminated to members, lists of when and where all of the other contenders had previously played publicly. Their film was then kept in theaters playing to virtually empty seats (a studio “four-wall,” if you will). Meanwhile, they did all they could to obtain “legal” screeners of the other nominated films. One way or another, these measures allowed some Academy members with little or no interest in documentaries to vote that year. It was now kosher for some members to vote without attending the Academy sacntioned screenings (and without seeing the other films) becasue the studio had heavily lobbied them to vote for its film and had helped “qualify their vote.” Guess who won? Don’t get me wrong-- the studio-supported film was just as amazing and as deserving as any other, but the rules were bent to ensure victory.

In another close case I am intimately familiar with, the Academy bravely disqualified some votes for a film which was the favorite to win, having suspected, investigated, and then concluded that indeed some votes had been rigged by an overzealous mini-major (i.e. some members voted despite not seeing all nominated films). Screeners were at the heart of this action. The diligence of the Academy likely changed the results that year. Now imagine 200 screeners (post nomination even more) floating around. There will be no accurate way to keep the spirit of the Academy’s intentions, nor truly verify compliance of its rules.