Hollywood yesterday (Feb. 6) did what it does best. The Motion Picture Association of America (MPAA) brought all of their big shots together here in Washington to talk about the business of show business. They brought out the big names – Will Smith and Clint Eastwood, for starters, directors Taylor Hackford and Steven Soderbergh as well. Director Michael Apted shows an eight-minute film chock full of iconic Hollywood images from Henry Fonda to Henry Thomas (the kid in ET).
They brought out the friendly lawmakers, from Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) to House Ways & Means Committee Chairman Charles Rangel (D-NY). They packed the auditorium at the newly refurbished National Portrait Gallery with top-flight industry executives and with Federal employees ranging from the FBI to Justice Department, Secret Service, the State Department and the FCC.
The big stars, though, were the economic facts that MPAA was pushing at every opportunity. For some reason, the movie industry, along with the music and publishing industries, feel the need to remind Washington policymakers how much of a contributor they are to the U.S. economic well-being. From the big glossy reports on side tables outside the auditorium where the conference was held, to the little glossy reports sitting next to each place setting at lunch, the statistics were inescapable – 1.3 million workers in the film industry, 11.3 million jobs in copyright industries, 24% of the economic growth. We know the facts. We are pleased the industry is doing so well. Where we part company, however, is the use to which the facts are being put. The industry's point, of course, is that when this economic power speaks, Congress should listen when the industry comes asking for harsh punitive measures that they say are needed to safeguard their livelihood.
It's a good story, the kind Hollywood is adept at spinning. That's because the MPAA seminar was a feature film, not a documentary. It started with a kernel of truth in the economics, it ventured afield from reality. They paint a doomsday scenario of the mighty economic juggernaut would so hobbled by losses that the creative lights will be dimmed or, in some cases, extinguished.
We agree that losses from theft are a problem. But we part company when the industry blames others for its ills, when it so restricts consumer behavior that the concept of ownership ceases to exist. To defend these extreme positions, they have loosed an army of straw men, putting forward issues that drift away in a mild breeze.
The MPAA's first argument is that consumers are to blame because they insist on having some say in how they use items they purchased. Warner Brothers Chairman Barry Meyer reacted strongly to Consumer Electronics Association Chairman Gary Shapiro's statement at the CES show that “ordinary consumers are not pirates, and private conduct may be unauthorized, but that doesn't mean its piracy.”
“So when does 'unauthorized' behavior become 'illegal' behavior,” Meyer asked: “When you break into a car in a parking lot and move it to your garage?” That was the wrong question. His straw-man talking point: “It shouldn't be 'illegal' when it's a car theft statute that's broken and only 'unauthorized' when it's a copyright law.”
Suppose we ask Meyer's question another way. Is it illegal to break into your own car (much less repaint it or install a turbocharger)? Do consumers have any rights at all when it comes to DVDs or any content they own? Meyer's statement, and those of others at the conference, ignores the reality that consumers have rights, and that there are many lawful uses of copyrighted content that do not need specific authorization from the copyright holder.
Copying a DVD someone buys onto his or her own computer or portable player is one. In one extreme case, a hacker broke the code on the new high-definition DVDs not because he wanted to steal it, but because the disc wouldn't play on his equipment. As Shapiro said, “We believe consumers should not be in legal jeopardy if they do something with lawfully acquired content and keep it in their home.”
What's the alternative? Should Hollywood have the right to decide which players will play its material? They want to do that you know, through content controls like the broadcast flag for over-the-air digital TV and controls for terrestrial digital and satellite radio. Does the industry really think consumers or even their friends in Congress would accept a scheme in which someone would have to buy a separate copy of something for each player or computer?
Meyer trotted out another straw man when he blamed the consumer electronics industry for causing consumer confusion: “We're not the ones responsible for creating and promoting non-compatible formats.” Yes, you are. On the video front, your studios are feeding the battle over standards for new high-def DVDs. They support Blu-Ray. Others support HD-DVD and combining formats isn't a long-term solution.
On the music front, it was unfortunate for the MPAA that Apple Chairman Steve Jobs chose the same day as the movie seminar to rip the curtain off of the digital rights protection racket for music. When he called for the removal of DRM from download services, Jobs said the big music companies required Apple to use DRM as a condition for licensing. When Meyer asked why won't a song downloaded to an iPod play on another MP3 player, that's the answer. Look in the mirror.
The movie industry, Meyer declared, quoting Shapiro, would never “smother the ability of technology,” because the industry is tech-friendly. It is tech friendly internally, as each example he gave, of using sound, color and high-definition, was something to help the industry. But advances to help consumers – that's a different story. From the challenges to the video cassette through the early 1980s to law suits against Replay and ClearPlay and the early MP3 players, the content industry has been nothing but hostile to any attempts by consumers to use their own media for their personal use.
Meyer wasn't the only one trotting out arguments that don't hold up. Over the course of the day, there were many. One was the question of third parties making money off of others content, as when a Web site puts up copyrighted material and benefits if ads are sold. In that case, the argument goes, owners aren't getting compensated for an unauthorized use while others reap the benefits.
Web sites that sell ads do for the totality of the site, not just for what might or might not be copyrighted content. People go to YouTube for all sorts of things, from exploding Diet Coke to Jon Stewart (an audience builder, to be sure). It will survive, with out without deals from content companies, because there is so much to the site. People want to see what's there and to create their own videos.
How far do we want to extend the principle of unauthorized monetization? Should movie reviews only to be made up of material authorized by studios? What about ads sold on the same program or Web site or newspaper page as a review? Do movie companies get to share in that revenue? Of course not.
MPAA talking points also dictate that sites like YouTube should be able to screen for copyright because they screen for porn. That one might sound good, but in the end doesn't hold up, either. YouTube does not and could not control the content on their site. There are too many videos and insufficient technology to do so. If there is a complaint about pornography, or any other item, YouTube staff review it. If there is a violation of copyright alleged, they check it out.
At some point, it may be technologically possible to screen for copyright, but that only works if you believe copyrighted material can only be used with permission. That's not the case, despite what the content industries would like policymakers to think and despite the many straw men they create to argue their point of view. Consumers have rights. That's an answer that won't be blown away in the wind. It's solid and here to stay.