The following is a response to the issues presented in Jack Valenti's article in the Washington Post.
http://www.washingtonpost.com/wp-dyn/articles/A62085-2002Feb24.html
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Movies Get Framed |
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By Jack Valenti |
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The movie industry is under siege from a small community of professors who argue (1) that broadband access to the Internet will never gain consumer acceptance without movies legitimately being made available on the Net and (2) that producers deliberately are holding back the exhibition of movies on the Net because of -- in the words of Lawrence Lessig ["Who's Holding Back Broadband," op-ed, Jan. 8] -- "the threat the Net presents to their relatively comfortable way of doing business." Add to this (3) the accusation that copyright owners are stifling innovation in the digital world. The first claim is true: The great omission in digital downloads is the lack of legitimate movie availability. Text is mainly what the Net offers. A recent survey revealed that 68 percent of all home computer users say they're satisfied with their normal 56K computer modem. It can download pretty much all that's on the Net, as not much (legal) material is out there that's chock full of graphics and in a consumer-friendly format to create the need for a cable modem or a digital subscriber line (DSL). |
Jack Valenti's position is that all content on the web, not sold by him (or his organizations), are illegal. Jack has been wrong in the past, however. Take a look at Jack's opinion about VCRs in the 1982:
"The growing and dangerous intrusion of this new technology threatens an
entire industry's economic vitality and future security. [The new
technology] is to the American film producer and the American public as
the Boston Strangler is to the woman alone
Jack Valenti, President, Motion Picture Association of America,
testifying on videocassette recorders before the House Judiciary
Committee in 1982.Now, the movie industry makes MORE money from VCR tapes than they do with theatrical movie performances. So let's just decide not to take Jack's word for it, and take a closer look at some of his arguments.
Copyright law is simply not formed at the bidding of Jack Valenti! There are many scenarios which have been affirmed as fair use by the court system which take place on the the internet every day, which Jack would label (and likely count in his statistics) as “illegal”. The content industries consistently try to deceive people into thinking that their idea of copyright law is the correct one. For example, the introduction to many movies now claim that “Copying is prohibited”. This is a half-truth. It is certainly true that the content industry prohibits copying, but they have no legal authority to deny copying. What is implied in the statement but is missing is the two magic words, “by law”. The content industry wants users to be deceived into thinking they have no right to copy, when the Supreme Court says that they do. Jack Valenti is an expert at playing this word game.
Let's take a look at one scenario that Jack would consider to be “illegal”.
Let's say, for example, one of the VHS tapes that I purchased was left out in the hot summer sun and was rendered unplayable. Naturally, this is of course my fault, however, when I purchased this movie on VHS, I also purchased the right to watch it. (if you disagree, I would challenge you to name the exact moment that a legitimate movie owner becomes authorized to view the movie) Now, under copyright law, using the first sale doctrine as a guide, I would be well within my rights to download this movie title and record a replacement copy of the movie. This goes back to the very simple concept of, “I bought it, I own it”. Even Walt Disney Co seems to agree with me, after all, they boldly advertise “Own it now on DVD”.
Jack, however, would shut down all sites with movie downloads first, and deal with issues like this on a case for case basis later. This is because what he is really truly, afraid of is loosing control. Jack says he opposes free music and free movies on the internet. Do you suppose that he also avoids listening to the radio or watching broadcast TV? I think it is far more likely that the content provider industries are using the internet as a power grab, ignoring proven business models that do not give them as much control.
In any case, I would recommend that the reader read the rest of this article and make up your own mind. This “small group of professors” represents some of the smartest minds in copyright law. Also, there are many non-professors who understand the problem – enough to stage worldwide demonstrations in opposition to this copyright abuse.
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The second professorial indictment is palpable nonsense. It is a charge issued only by those who have a blurred knowledge of the financial fragility of the film industry. Because making movies is so expensive, only two in 10 films ever retrieve their production and marketing investment from domestic theatrical exhibition. Distributors have to use other venues -- delivery systems such as cable, satellite, TV stations, videocassettes, DVDs, international markets. Every producer yearns to use the Internet as a new delivery system to speed movies to consumers' homes for rent or sale, at fair, reasonable prices. Any producer who chooses to reject Internet exhibition is a fiscal lunatic. |
Fortunately, or unfortunately, there are lots of fiscal lunatics out there. First of all, notice that the 2 in 10 statistic only applies to movies that “retrieve their production and marketing investment from domestic theatrical exhibition”. What is not mentioned are more significant:
International theatrical exhibition - $
Domestic merchandising revenue - $$
Domestic and international VHS/DVD sales - $$$
In this case, clearly, Jack is not telling the whole truth here, in an attempt at making his industry look more vulnerable. The truth is, the motion picture industry is reported to make more revenue from home movie sales than it does in “theatrical exibition”. This is a telling fact, when you consider that the motion picture industry tried to ban VCR technology in the 1980s. It is just as possible that they might someday make more from uncontrolled internet distribution of their works than they do with their current business model.
Jack Valenti has a fundamental weakness in dealing with this situation. He is so caught up in “protecting” the movie industries' works, that he completely fails to consider the possibility of leaving them unprotected. Let's imagine what broadcast TV would be like if Jack's ideas were carried over to that medium. You turn your TV on, and it displays a 1-800 number for you to call, before it lets you view any channels. Every time one program stops and another starts, you must dial up once again and activate the next program. Now, given this environment, is it even a question how well the system would work? Broadcast TV is a business model which relies on the most people possible “pirating” content!
If the movie industry would really like to succeed, they should excuse their lawyers from the room, and have a discussion about releasing their content in an unprotected fashion. Heck, they could even put commercials in the unprotected video stream. Most people wouldn't bother the time to take them out. Who knows? History may repeat itself.
If the prospect of making movies is too risky for Jack, then he is welcome to find other employment. His attempt to mislead the reader about the “fragility” of the motion picture industry is particulary unconvincing.
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According to the Boston-based consulting firm Viant, some 350,000-plus films are being downloaded illegally every day. Some are still in theatrical exhibition when they are illegitimately recorded, mostly by those who use state-of-the-art university broadband systems. Those who don't have broadband but find it beguiling to download movies free simply start their computers whirring at bedtime, and when they wake in the morning they have a movie. Free -- and illegally. |
Once again, it is quite probable that Viant was tasked (probably by interests in the movie industry) to find the number of downloads, without even considering whether a particular download was “illegal” copyright infringement or not. Truly discovering the number of legitimate downloads would be quite cost prohibitive, and would not be so simple!
The controversy here is very similar to the controversy when the printing press was invented. For many years, monks would hand-copy each book – copyright simply didn't exist because it was so much effort to copy in the first place. When the printing press was invented, they simply couldn't compete with the more efficient process.
Jack may base his business model on selling water in the desert, but does he deserve our sympathy when it starts to rain?
If the current leaders of the movie industry do not adapt to the changing conditions of the world, other people will. That is the nature of capitalism.
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The reason pitifully few films are legitimately available on the Internet is not producer hoarding. It is that those valuable creative works can't be adequately protected from theft. The analog format (videocassettes) and the digital format (DVDs) are different. Videocassette piracy costs the movie industry worldwide more than $3.5 billion, even though the sixth or seventh copy of analog becomes unwatchable. But the thousandth copy of digital is as pure as the original. Moreover, digital movies on the Internet can be pilfered and hurled at the speed of light to any spot on the planet. This is what gives movie producers so many Maalox moments. |
I'm still waiting for Jack to set me up with an internet connection that runs at the speed of light to any site on the planet. While I'm waiting, though, I'll dispense with the exaduration and focus on the facts.
It's true that the digital environment presents problems for the current business model used by the motion picture industry. It's also even possible that there is no perfect business model that will save the motion picture industry from the changes in technology.
Lets pose a question to Mr. Valenti:
If new technology causes the protection of copyrighted works to require implementing a totalitarian system of government, constantly monitoring all citizens in case they might commit “crimes”, is it worth it?
I don't think so.
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What's keeping the movie industry from making its creativity theft-proof? Simply put, in order to transport movies as agreed to by the consumer on a rent, buy or pay-per-view basis with heightened security, computers and video devices must be prepared to react to instructions embedded in the film. Other ingredients are necessary to protect digital content, but it gets too complex to explain in a few sentences. At this moment, that kind of interaction is nowhere to be found in any computer or set-top box. Some security is available, but it is porous. The movie industry is, however, consulting with the finest brains in the digital world to try to find the answer. |
The finest brains in the world have already told Jack that his security system is impossible. Digital bits are digital bits, and nothing can change that fundamental fact. Bits can be copied. Even if an unbreakable protection technology were invented, one could simply use a cam-corder to re-record a movie from the screen. At some point, scrambled or unscrambled, the content has to enter human eyes and human ears, and when it does, it could be recorded.
The content industries are holding back on internet production because they want to create an instrument of control which is only possible by creating a totalitarian system of monitoring to manage it – and even then history shows us that it will not survive long.
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As for the third charge -- that copyrighted movies are destroying digital innovation -- what the critics mean by "innovation" is legalizing the breaking of protection codes, without which there is no protection. |
Jack is dead wrong on this point. Being the smart man that he is, I think it is likely that he is attempting to deceive the reader with this statement, for surely someone with an educated background such as Jack Valenti would know the basics of copyright law.
Copyright is a social contract. The public gives away the right to use works (other than fair use) during the copyright period, and receives in benefit a wider variety of writings than would be produced, had there been no incentive for the author. The copyright holder gives up certain rights in allowing the public to benefit from the work (fair use), and in exchange gets a temporary legal monopoly on distributing their writings.
That's how it's supposed to work anyway. Jack Valenti turns the concept of copyright on it's head, claiming that content producers deserve the legal monopoly of their products, without the corresponding ability of the public to make use of the works, since they are encrypted.
If the content providers could limit their “protection” to matters of copyright infringement, most people would agree that this is OK. This isn't what happens, though. Instead, the content providers use the technology to exert control beyond what legal copyright grants them. It's a boon for them, because they become above the law. Now, it doesn't matter what the Supreme Court says about copyright, because the movie industries technology becomes the final say in the matter.
Conduct such as this should deprive the copyright owner of the legal monopoly for their work. After all, they are refusing to uphold their side of the copyright bargain (by not granting direct access to the work for fair use), and they obviously don't need the Government's help to protect their monopoly via copyrights when they use encryption systems to help themselves.
The “innovation” spoken of, is the result of the copyright balance – the public's ability to use copyrighted works for fair use. Many of the greatest works of all time were based on other ideas. Allowing this progress to happen is the reason copyright exists in the first place. Jack is trying to generate sympathy by sensationalizing his distorted view of reality. We're not the ones abusing copyright law, Mr. Valenti!
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Movie producers are eager to populate the Net with movies in a consumer-friendly format. There is a way to achieve adequate security for high-value movies on the Net. Computer and video-device companies need to sit at the table with the movie industry. Together, in good-faith talks, they must agree on the ingredients for creating strong protection for copyrighted films and then swiftly implement that agreement to make it an Internet reality. Without concord, one option is left: Congress must step in to protect valuable creative works on the Net and thereby benefit consumers by giving them another choice for movie viewing. The writer is chairman and CEO of the Motion Picture Association. © 2002 The Washington Post Company |
Actually, nothing of the kind is needed. The motion picture industry could just try releasing content in an unprotected fashion, using advertising and product placement as sources of revenue. This might allow the movie industry to keep its profits, and yet avoid placing our government in the position of the former Soviet Union. What Jack is proposing is nothing less than posting guards on every computer. True, the guards are only software programs, since that is much cheaper than appointing government agents to do it. However, I think our society deserves better than that.
Why should congress help an industry that is already helping themselves? They have implemented technology that goes beyond copyright. They have used their lobbying influence to remove the public benefit from digital content, by making any way to achieve it illegal under the DMCA. Jack, in his testimony in the US court case Universal v. Corley, suggested the the public stick to analog media, to retain the rights given to them under copyright law. Yet, the movie studios now use technology (macrovision) to prevent even that from happening! With the movie studios, there is no digital future for the public – only for the content providers.
Jack's recommendations would put our government on a collision course with an era of corruption and abuse. It all comes down to: “Who's guarding the guards?”. If the motion picture industry is overstepping copyright law now, who knows how far they may go in the future? They've already started down this path. Hopefully, we'll be able to stop the content industry's abuse of copyright law before the situation becomes so unfair that people loose respect for copyright law in its entirity.
This lack of public respect for copyright is predicted in a speech, delivered by Thomas Babington Macaulay to the house of commons in 1841, when similar interests in the bookselling industry tried to tamper with the public balance of copyright.
... I am so sensible, Sir, of the kindness with which the House has listened to me, that I will not detain you longer. I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim's Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress? Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living...
This is what happens when copyright goes too far. Jack, you could learn from this. You are endangering the very copyright system you depend on for your industries well being.
It would be smart of the movie and music industries to lobby for more reasonable copyright laws. The duration of copyright should be short enough that a human being might hope to see the end of it in his/her lifetime. The DMCA should be modified so that infringement is only actionable in cases of copyright infringment. Do these things, and you will be part of the copyright solution instead of part of the problem, and you might avoid this otherwise inevitable outcome.