SOPA Supporters Urge White House To Use Secretive TPP Process To Insert Draconian New IP Laws

from the sopa-reunion dept

We've been warning for a while about the TPP negotiations, and how the big interests who pushed SOPA were making a concerted effort to use the (very questionable and extremely secretive) nature of international trade negotiations to sneak through many of the things they wanted in SOPA, without any scrutiny. Make no mistake: while the public has no access to, or information about, what the federal government is negotiating, the big special interests are well informed. As pressure has been mounting against TPP, it appears that the US Chamber of Commerce has "brought the band back together," putting outa letter to the Obama administration explaining why draconian IP rules must be included in the TPP. The letter is signed by a who's who of SOPA supporters, including (of course) the Chamber of Commerce, the MPAA, the RIAA, A2IM, PhRMA, AAP, BSA, ESA and more. Basically, it's a bunch of also ran industry trade groups whining to the feds that they can't innovate anymore and they need economically damaging mercantilist-style protectionism.

For the TPP to achieve that vision, it is essential that the final TPP agreement incorporate comprehensive and high-standards for the protection and enforcement of intellectual property (IP) rights – including patents, trademarks, copyrights and trade secrets. And that outcome can only be achieved through continued and heightened U.S. leadership. By contrast, any attempts to weaken IP rights or to exclude any sector from protection must be strongly rejected and would be inconsistent with overall U.S. Government policy and U.S. economic and trade interests.

Almost nothing in that paragraph is accurate (or honest). The TPP can be a perfectly good trade agreement without touching on IP issues. It's just that, in the past few years, industry lobbyists have realized that sneaking IP law expansion through international obligations is a good way (they thought) to keep them under the radar, and to get ridiculous rules pushed through without having to go through the standard legislative efforts. In fact, deals like these often require changes to the laws after-the-fact, which is exactly what the industry wants. Because then, rather than arguing for a law because they know it will hurt innovative upstarts, they can just stand around pouty-faced, talking about how we have to "respect our international obligations."

Furthermore, there is tremendous evidence at this point that IP laws are way too broad and too draconian, and that's causing significant hindrance to innovation. Claiming that no weakening of IP laws can be allowed is a ridiculous and unsupportable maximalist agenda, designed not to help the US, but to lock in entrenched players at the expense of disruptive innovators.

We commend your Administration for recognizing the key role played by innovative and creative industries in driving economic growth, jobs and competitiveness. As recently highlighted in the March 2012 U.S. government report – Intellectual Property and the U.S. Economy: Industries in Focus – U.S. IP intensive industries support more than one in every four jobs, over one-third of GDP, and approximately 60 percent of exports. The protection and effective enforcement of IP rights are therefore of critical importance to the economic growth and prosperity not only of the United States but also of its eight TPP-negotiating partners.

This is a load of hogwash. The "report" used the US Chamber of Commerce's own totally discredited methodology to inflate numbers to ridiculous levels. Furthermore, the US CoC's interpretation that this report shows that enforcement is "critical" is, once again, complete hogwash. It assumes -- without any proof whatsoever -- that these IP intensive industries exist because of strong IP laws.

What the letter conveniently ignores is that some of the largest players -- and the fastest growing ones -- included in the list of "IP intensive" industries were the tech companies who fought against SOPA and who have complained about enforcement and protection levels being way, way too high. To use those industry's own growth as proof of the need for greater enforcement isn't just disingenuous, it's downright obnoxious.

As you and your Administration have repeatedly recognized, strong IP protections have been an essential element in fostering the explosive growth in new and more efficient technologies, increased productivity, life-saving medicines and other health technologies, as well as a wide variety of creative and educational works. As a result, high-standard IP protections are a key driver of economic growth in the United States and overseas and are linked to the creation and retention of jobs in industries as diverse as consumer and industrial products, educational products and entertainment, scientific products and equipment and information and communications technology.

Ah, flattery. And yet, there is no evidence to support the statement above. In fact, research has shown that IP laws do not, in fact, lead to explosive growth in technologies. Rather, the laws tend to lag growth -- showing that massive growth often happens in the absence of such laws or with weaker laws. The laws are then put in place to protect the leaders against new upstarts. This is exactly what the signatories of the letter are trying to do.

While the benefits of strong IP protections and enforcement are widely supported throughout the United States and safeguarded in our Constitution and laws, such protections are at serious risk in the ongoing TPP negotiations. Some seek to enshrine low standards of protection, with limited enforcement, in the final TPP agreement, arguing that U.S. proposals would be harmful and could undermine other interests.

Actually, some seek to push back on the ridiculous excesses of those who signed this letter, in order to look out for what actually benefits the public the most. Shocker, I know, but these laws are supposed to (we're told) benefit the public. Of course, the letter attacks such claims as well:

The strong IP protections proposed by the U.S. government in the TPP negotiations do not represent, as some suggest, a threat to public health, the development and expansion of the Internet or rights of freedom of speech, but rather a much-needed response to increasingly sophisticated threats to IP protection throughout the world. More, not less, rigorous IP rules are needed to thwart the explosion in IP infringement, including of pirated, counterfeit and unlawful copycat products throughout all sectors of the economy, and trade-secret theft.

Notice how these groups don't even hide the fact that they know what IP protections are being proposed by the US government in the TPP negotiations. That's because they're heavily involved in the process. You know who's not? The public. When special interests -- especially ones with a history of trampling all over the public interest -- get to help write the laws and the rules, while the public is kept in the dark, it's a pretty safe bet to expect that the public will get trampled again. Sorry, special interests, but saying you won't trample the public interest, while not letting the public into the debate, isn't that convincing.

Furthermore, we're already seeing such laws harm public health, hurt internet development, and be used to attack free speech. We can provide tons of examples. So claiming that it won't do more of that is a laughably ridiculous assertion.

What's also true is that never has expanding IP laws and enforcement been successful in "thwarting" infringement. It may work briefly, but within months, people find other ways to infringe. The only thing that works is encouraging real innovation in the field -- enabling startups to enter the market and do cool new things. Let them compete with "piracy" and innovative companies can and do succeed (though the industry then wants to shut them down or squeeze more money out of them). Yet the TPP isn't about enabling disruptive innovators. It's about giving slow, lumbering legacy companies who don't want to adapt the ability to kill innovation.

In their essence, the arguments against strong IP protections are largely based on the misguided assumption that strong IP protections advance only the interests of IP exporting countries and disadvantage countries with less well developed IP-dependent industries. In fact, the adoption of strong IP protections by all countries in the TPP and more widely promotes strong benefits for all, whether or not the country has developed its own major IP-based industries

Citation needed. Seriously. Because tons upon tons of studies have shown exactly the opposite.

Developed and developing countries that have adopted stronger IP protections have proven better able to develop their own technological, science, creative and other innovative and IP-dependent industries, advancing their own economic growth, productivity, exports, innovation and the interests of their workers and consumers alike.

This is lying by use of correlation, rather than causation. The real relationship is the opposite of what they're saying. The innovation almost always precedes the increase in IP protections, which then grant the leaders the ability to stifle upstarts and innovation they don't control. While it's true that developed nations have stronger IP laws, that's more about crony capitalism happening after the fact, rather than stricter laws being the cause of the innovation and growth.

The letter, in typical fashion, is a complete joke. The claims don't stand up to any sort of scrutiny. The authors must know this, but in a political world, they can get away with being extremely disingenuous.

Filed Under: chamber of commerce, mpaa, riaa, sopa, tpp

Chris Dodd Rewrites Hollywood's History To Pretend That It Came About Because Of IP Laws

from the well,-sort-of dept

Ah, Chris Dodd. Can you open your mouth without saying something ridiculously misleading? Sometimes, it doesn't seem possible. The latest is that he's claiming that strong IP laws were the reason Hollywood was created:

The truth is that neither the content nor the technology industries could survive without strong protections for intellectual property.

Many of you are familiar with how the name Hollywood became synonymous with the birth of the American film industry. It was in Jacob Stern’s horse barn, at the corner of Hollywood and Vine, the story goes, that Cecil B. DeMille screened the first full length feature film 100 years ago.

Well, when it comes to the tech sector, replace “Jacob Stern’s horse barn” with “Mark Zuckerberg’s dorm room” at Harvard, and you have almost the same story with the birth of Facebook.

In these and countless other examples throughout our history, the ability to give birth to an idea and convert it into economic success, whether it is the content of a film or the technology of the internet, depends on copyright and patent protection

Of course, that's all hogwash. Well, in a very twisted way, he's right. Hollywood did come about because of strong patent protection, but not the way Dodd seems to be suggesting. Instead, the reason that filmmakers moved out to Hollywood was because it was about as far away as they could get from Thomas Edison, who held the patents on basic filmmaking technology, and demanded exorbitant licensing fees. So the main reason that Hollywood is in Hollywood is because they were seeking a place to hide from patents.

It's a bit ridiculous for Dodd to try to rewrite this well-known history, and pretend that Hollywood developed because of strong IP protections when the exact opposite is what happened. I realize that Chris Dodd spent most of his adult life as a politician, so perhaps it's a bit naive to expect him to actually tell the truth, but at some point someone who works for him (I'm sure there's someone on staff who has accessed the internet once or twice) might want to explain to him that people can fact check him these days with relative ease online. Perhaps the next version of SOPA can be used to block people mocking Chris Dodd's inane statements as well...

Filed Under: chris dodd, edison, hollywood, intellectual property, mpaa

Prolific DVD Bootlegger Is 92 Year-Old WWII Veteran

from the mpaa's-worst-nightmare dept

The MPAA often loves to talk about just how evil DVD bootleggers are. They're the ones that the MPAA most frequently uses to draw a "connection" between "piracy" and "organized crime." Because of DVD bootleggers, we even got a ridiculous, 4th Amendment-ignoring law in California that lets police search DVD printing plants at random with no warrant, just to make sure they're not making copies of movies without authorization. Of course, law enforcement also has a history of seizing authorized DVDs and insisting they were pirated.

So, you have to imagine that the MPAA's PR team is not particularly pleased with the NY Times' profile of one of the most prolific DVD bootleggers out there: a 92-year old World War II veteran named Hyman Strachman, who bootlegs a ton of DVDs every month and ships them off to US soldiers abroad:

One of the world’s most prolific bootleggers of Hollywood DVDs loves his morning farina. He has spent eight years churning out hundreds of thousands of copies of “The Hangover,” “Gran Torino” and other first-run movies from his small Long Island apartment to ship overseas.

“Big Hy” — his handle among many loyal customers — would almost certainly be cast as Hollywood Enemy No. 1 but for a few details. He is actually Hyman Strachman, a 92-year-old, 5-foot-5 World War II veteran trying to stay busy after the death of his wife. And he has sent every one of his copied DVDs, almost 4,000 boxes of them to date, free to American soldiers in Iraq and Afghanistan.

There are some great pictures in the article, which show that he's actually using some sophisticated equipment, including a professional DVD duplicator that lets him make seven copies at once. He estimates that he spends about 60 hours a week bootlegging movies. By his own estimates, he sends about 80,000 DVDs per year, and has probably sent over 300,000 total since he started. And soldiers in the field love him for it.

An MPAA spokesperson admits that he "did not believe [the MPAA] studios were aware of Mr. Strachman's operation" and then delicately stated, "We are grateful that the entertainment we produce can bring some enjoyment to [soldiers] while they are away from home." However, you have to imagine that they're seething about the NY Times highlighting how much good a bootlegging operation can do.

Of course, the real shame in all of this is that the MPAA could -- and probably should -- be doing this directly themselves. They should be providing DVDs or streams free of charge to the military. Instead, in their insane fear of piracy, they make it complicated to impossible for soldiers to view films, even when they decide to send them over: "studios do send military bases reel-to-reel films, which are much harder to copy, and projectors for the troops overseas." Because that's exactly what you want for soldiers in the field: having to carry around and mess with heavy and annoying equipment that's likely to break.

As for Strachman, he seems to hope that his age and the fact that he's not doing this for money will protect him:

"If I were younger, maybe I’d be spending time in the hoosegow."

Filed Under: bootleg, dvd, hyman strachman, mpaa, world war two

SEC Investigating Hollywood Studios For Alleged Bribes To China

from the open-markets dept

When the MPAA came out with its annual report about the movie market worldwide, it showed that China was a huge growth market. However, now it appears that perhaps some of that growth was the result of Hollywood studios bribing Chinese officials. For years, China has limited how many Western movies can be released in the country. While Hollywood loves to decry all of the "piracy" in China, much of it is due to the fact that the movies can't be released there under the law. That's a situation where the problem is not piracy, nor the MPAA itself (even as it whines about Chinese piracy), but local laws. However, there has been a loosening of those restrictions lately -- and the SEC is exploring whether or not that came about due to bribes from the studios:

The Securities and Exchange Commission has sent letters of inquiry to at least five movie studios in the past two months, including News Corp's 20th Century Fox, Disney, and DreamWorks Animation, a person familiar with the matter said.

The letters ask for information about potential inappropriate payments and how the companies dealt with certain government officials in China, said the person, who was not authorized to speak publicly about the letters.

That said, there is an interesting tidbit in the Reuters article about all of this, that really serves to highlight how ridiculous the MPAA's fight against "piracy" is. It shows that despite the fact that piracy is rampant for Hollywood movies -- once the MPAA was able to get legit movies into the country, people flocked to the theaters. In other words, despite the cheaper pirated options -- or even free options -- people have no problem paying for the legit product when it's offered in a quality fashion:

China's booming middle class is increasingly willing to pay tickets prices for a cinema experience, forgoing cheap pirated DVDs and free internet downloads.

Once again, this seems to demonstrate why the problem is not piracy. If consumers are offered what they want in a reasonable manner, they are more than willing to pay -- and the Hollywood studios seem to recognize this implicitly (which is why they may have bribed Chinese officials to release authorized versions in that market, even with "piracy" being so common).

Filed Under: bribes, china, hollywood, mpaa, sec
Companies: 20th century fox, disney, dreamworks, news corp

Rep. Zoe Lofgren Quizzes US Register Of Copyrights Over Close Connection To Industry

from the how-does-she-keep-her-job? dept

We've expressed significant concerns about the Register of Copyrights, Maria Pallante, and her statements that copyright is for the author first. This isn't the first time we've had concerns about Pallante, who also strongly supported SOPA and testified at the House Judiciary Committee hearing in favor of SOPA. Usually, the heads of government agencies don't take specific positions on bills, especially when that position appears to favor one particular set of stakeholders over others. It certainly raises significant questions over the impartiality of the office.

Thankfully, some in Congress are noticing. Rep. Zoe Lofgren recently quizzed Pallante about these statements and about her testimony, during a House Oversight Committee meeting concerning the Library of Congress (which is in charge of the Copyright Office). Lofgren also dropped a bit of a bombshell, noting that the day before Pallante testified in favor of SOPA she was hanging out in Hollywood with top lawyers from the major MPAA studios. Pallante played it off as an attempt to talk more directly to stakeholders rather than lobbyists -- as if the top lawyers at the studios don't already have plenty of access with the Copyright Office and other government officials.

Lofgren also asked about Pallante's comments, which we mentioned above, about copyright being for the artist first. Pallante noted that her oath of office requires her to uphold the Constitution, and then cites the Supreme Court's ruling in Eldred and Golan as agreeing with her interpretation. Just listening to it, I started to get annoyed, and, thankfully, so did Lofgren, who immediately pointed out that Pallante's comments were "a real misstatement of the Eldred case," which was only about Congress' authority in determining the structure of copyright law." Later, Lofgren had a chance to offer a second question. There, she discussed a meeting Pallante had with two more big SOPA supporters: the Authors Guild and the Association of American Publishers in New York in December last year. Similar to the meetings with studios, Lofgren asked for details of such a meeting. She then asked about Pallante's questionable comments to the AAP which we reported on at the same time as her comments about her interpretation of copyright law. Lofgren asked if Pallante thinks it's part of her job to preserve "a particular form of copyright works... or industry business model" in response to Pallante's claims that she can't imagine a world without books. Pallante's response was a bit condescending, saying she wasn't talking about "a particular format of books -- I was talking about books." It's good to see Congress recognizing that the Register of Copyrights seems impossibly biased in favor of specific industries, rather than actually paying attention to the purpose of copyright law: to benefit the public.

Filed Under: aap, authors guild, congress, maria pallante, mpaa, register of copyrights, sopa, zoe lofgren

Report Shows MPAA 'Experts' Seriously Misrepresented The Uses Of Hotfile

from the substantial-non-infringing-uses dept

We've been following the surprisingly weak case that the MPAA filed against Hotfile for some time -- and, in some ways it's become even more important lately as a sort of "civil analog" to the criminal case against Megaupload. Hotfile and Megaupload have many similarities, and the arguments against both seem to make the same highly questionable assumptions -- taking perfectly legitimate actions and insisting that they must have been done for nefarious purposes. For example, in both cases, the fact that the companies offered "affiliate programs" that allowed users to make some revenue on frequently downloaded works was used as evidence that they were inducing infringement. But what the facts are showing is that this was quite often used to create legitimate and lucrative new business models for creators themselves. When Megaupload was taken down, for example, hip hop superstar Busta Rhymes argued vociferously that it was a fantastic way to make money -- with much, much better terms than major labels. That's because he (and lots of other artists) could release their own content through these platforms, allow consumers to get them for free, and get a large cut of the ad and subscription revenue.

It appears that this was also a popular use on Hotfile. TorrentFreak obtained a filing from copyright expert and law professor James Boyle, in which he points out that open source developers were using Hotfile's affiliate program as a business model, and, in fact that open source downloads were incredibly popular on the platform, very likely representing one-third of the top 100 downloads, adding up to millions of downloads.

The standard for infringement under the Betamax ruling is supposed to be if there are substantial non-infringing uses of the technology, and that certainly appears to be the case here.

Boyle also points out other ridiculous problems with Hollywood's "expert" report trying to claim that Hotfile was almost always used for infringement. For example, he notes that the report appears to have purposely excluded approximately 60% of the files on Hotfile. Hollywood's experts ignored files that were never downloaded or only downloaded once. Yet, as Boyle points out, the point of a cyberlocker is to store files -- and many people likely put files up so that they could be stored in case they were ever needed. Thus ignoring the 60% of files that were never downloaded or only downloaded once, excludes the fact that many of those may have been for perfectly reasonable and legitimate purposes of backup, storage or place/time-shifting. Basically, it looks like the MPAA's "experts" ignored anything that was inconvenient.

And it gets worse. The so-called "experts" that the MPAA found seemed to classify works as "highly likely infringing" despite there being significant evidence that they were perfectly legitimate works to be shared. Perhaps the most egregious example was a copy of a Russian book on embroidery published in 1871. No matter how you look at it, a book published in 1871 is in the public domain. But the MPAA's expert listed it as highly likely infringing. Then, when called out on that, the expert said that maybe there were new works in the book and would only downgrade his classification to "unknowable" rather than admitting it was public domain.

Mr. Zebrak’s classification here was inexplicable tome in my rebuttal report and remains so now. He argues that there could be copyrightable selection and arrangement in the illustrations of this work, even though both the original work and the illustrations are clearly in the public domain. I dealt with and dismissed this possibility in my rebuttal report – indeed the site to which he cites in his original argument for infringing status explicitly identifies this exact book, in unchanged order and arrangement, as being published in 1871 in St. Petersburg. This book is at the most conservative possible classification,“highly likely in the public domain.” Mr. Zebrak will not concede even this, though he does at least change his classification to “Unknowable.” Again, I think the refusal to admit evenoverwhelming evidence like this indicates a predisposition to find infringement that is worryingly strong – and that predisposition appears to be a general one, which therefore has significance far beyond the files I was able to examine in the time available to me.

Similarly troubling, the MPAA's experts took a freely distributable podcast, and insisted that, too, was "highly likely infringing." Podcasts are usually distributed for free, and since bandwidth costs are expensive, many podcast creators love using cyberlockers like Hotfile or Megaupload as a free storage and distribution platform. But the MPAA's "expert" insists that it's highly likely infringing. And it gets worse: even after the creator of the podcast said he was happy with its free redistribution, the MPAA's expert used iTunes terms of service to argue that it was still infringing. Except iTunes terms of service have nothing to do with the podcast:

Photography 101 Podcast: This podcast is an example, again, of the same theme .As I pointed out in my rebuttal report, the podcast is in fact offered for free download online and its author confirms that he does not object to its redistribution. Mr. Zebrak – somewhat puzzlingly – introduces the iTunes terms of service into the picture, apparently imagining that iTunes has the ability to affect the copyright status of a work in which it holds no copyright. It does not. Mr. Wittenburg holds the copyright in his podcasts. He allows people to download them freely and to repost them and says so explicitly in his affidavit. There is no evidence that the version of the podcast posted on Hotfile even came from iTunes. Mr. Wittenburg refers to the podcasts being available in multiple locations online. Even if it did, the iTunes terms of service are a red herring. I may give a lecture which I record and post online, posting it also on iTunes. I hold the copyright and I may choose to allow posting and reposting as I wish. Copyright law gives iTunes no rights over the program and no rights to circumscribe what I allow with my own podcast – they have no copyright to infringe – and thus the claim that the file is "highly likely infringing" cannot be supported on this basis.

Reports like this raise significant concerns about the claims against Hotfile (and similar sites).

Filed Under: affiliate program, busta rhymes, mpaa, open source
Companies: hotfile, megaupload

Former Chief Tech Policy Officer At MPAA Admits That SOPA Was 'Not Compatible With The Health Of The Internet'

from the indeed dept

We mentioned recently that the Chief Tech Policy Officer at the MPAA, Paul Brigner, had jumped ship to the Internet Society -- whose position on SOPA was diametrically opposed to the MPAA's position on SOPA and similar concepts. While there was some concern that ISOC was moving away from its strong internet freedom stance, many of us suspected that perhaps the reason Brigner jumped ship was that his own views were much more in line with ISOC's. Indeed, he's now told News.com that he thinks SOPA isn't just a bad idea, but that it's not good for the health of the internet:

"Did my position on this issue evolve over the last 12 months? I am not ashamed to admit that it certainly did," Brigner writes. "The more I became educated on the realities of these issues, the more I came to the realization that a mandated technical solution just isn't mutually compatible with the health of the Internet."

And how does the MPAA feel about this?

A spokesman for the MPAA said his organization would not comment on Brigner's volte-face.

Well, what can you say when your (now former) chief tech expert agrees with what every other tech expert has been saying all along?

Filed Under: internet, mpaa, paul brigner, sopa

Forced MPAA Filter On IsoHunt Means Legitimate Content Is Being Censored

from the not-cool dept

One of the more bizarre rulings in copyright/file sharing cases was the district court ruling in the IsoHunt search engine case a couple years ago. It's still involved in the appeals process, but the district court is one of the only courts so far to broadly interpret the DMCA's "red flags" rule to mean that general knowledge means you have to block access. The ruling ended up being that IsoHunt basically had to accept a keyword filter from the MPAA and block all access to anything that matched the keywords. As you can imagine, that's leading to significant overblocking of legitimate content.

TorrentFreak has the unfortunate story of filmmaker Brian Taylor, who released a short horror film called "the Bite" via his En Queue Film production studio, and decided to distribute it via isoHunt. However, that's when things went bad:

"I got it going, had downloads start from the US and Europe almost immediately, which made me a very happy guy," Taylor told TorrentFreak.

However, this enthusiasm faded quickly when he tried to access the torrent from a US connection a day later. Instead of a link to the torrent file the filmmaker was welcomed with the following message. “Torrent has been censored, as required by US court.”

They also note that a torrent of public domain music has been blocked by the MPAA (even though the MPAA's filter is about movies, not music). Of course, this is what happens when you force overblocking and the use of technologically stupid filtering methods like keywords. What's amazing is that a court made this same mistake a decade ago with Napster (forcing keyword blocking) and it didn't work then, and doesn't work now. It's amazing that judges who clearly are technologically illiterate find it reasonable to make rules up out of thin air like this one, that not only does little to block any actual infringement, but does plenty to block legitimate uses of tools.

Filed Under: brian taylor, censorship, dmca, filtering, mpaa
Companies: isohunt

MPAA Pretends Dodd Didn't Say That New SOPA Negotiations Were Underway

from the nice-try-guys dept

So Chris Dodd just said that there were ongoing backroom negotiations for a new SOPA, with some push from the White House. Of course, he did it with a wink and a nod, by saying he was "confident" that such was "the case" but that he wouldn't "go into more detail, because obviously if I do, it becomes counterproductive." When asked to clarify, he made it clear that Obama was pressuring the tech community to agree to a version of SOPA:

I'm not going to revisit the events of last winter. I'll only say to you that I'm confident he's using his good relationships in both communities to do exactly what you and I have been talking about.

For all the winking and nodding, the meaning of the statement was pretty clear. Of course, now that it's getting plenty of attention and the MPAA is getting slammed from every direction for continuing its braindead backroom strategy, the organization is simply denying Dodd said what he said:

"Sen Dodd did not say SOPA is coming back to life. He said the tech and entertainment industries need to come together to work on a new solution and those conversations are beginning. SOPA is gone. The path forward now is a serious conversation between all involved industries about new solutions, and that was Sen Dodd's point."

That's an interesting twist on what he actually said, but even if we take the MPAA at their word, this still shows how out of touch they are. Notice that they say the path forward is not an open conversation with internet users. Nope. It's a backroom negotiation between "all involved industries." It's as if the MPAA can't even get its mind around the fact that the stakeholders here are the internet users -- or that any such discussions should be done in public. Instead, the only thing it can think of is that it has to negotiate in backrooms with industry reps. I don't think I've ever come across an organization so ridiculously tone deaf.

Filed Under: chris dodd, mpaa, sopa, white house

Dear MPAA: Stomp Your Feet And Repeat It As Many Times As You Want, But Infringement Is Not Theft

from the must-we-do-this-again dept

Ah, gotta love the MPAA and their gleeful sophistry. We wrote about how MPAA comms person and former Congressional staffer (note the revolving door...) Alex Swartsel went way, way overboard in attacking GigaOm's Janko Roettger for noting, accurately, that the entertainment industry's anti-consumer behavior, combined with a potentially worsening economy, could mean that more people switch away from authorized options for watching movies to unauthorized options. This is a pretty reasonable analysis, and it's hard to see how you could disagree with it. However, in the minds of Swartsel and the MPAA, anyone who even dares to acknowledge that unauthorized file sharing exists must be condoning the practice, and Swartsel wrote one of the more intellectually dishonest pieces we've seen in a long time, going after Roettger, pretending he was telling people that it was fine to infringe on copyrights.

We responded on a bunch of points, including Ms. Swartsel's repeated incorrect use of the words "steal" and "theft" to describe infringement. Swartsel has now responded, with a post so full of sophistry, you have to wonder if the MPAA might not be better off sending her back to remedial talking points training. It seems clear that Swartsel is jumping into a debate for which she is woefully unprepared -- though, of course that explains why the MPAA, yet again, has turned off comments on its blog. The main point of the blog post appears to be to simply repeat the words "steal" and "theft" so many times that readers are driven into submission. Of course, most people aren't stupid, though the MPAA seems to presume that's the case.

By my count, the post uses a form of "steal" six times and a form of "theft" another six times. That's a dozen incorrect uses of those two words in a mere seven paragraphs. Impressive.

Even worse, nowhere does Swartsel admit that she totally and completely overreacted and irresponsibly attacked Roettger for accurately reporting what's going on in the world. Instead, she doubles down on the this claim that merely stating what's happening means we all think that it's okay:

In other words: movie and TV theft is inevitable. Why? Because it’s easy to steal something that, in physical form, exists only as data, and easy to justify stealing it as a result? Because information wants to be free, no matter the cost it took to produce or its creators’ judgments about how best to disseminate it? Because anything is fair game once it’s on the Internet? Because if I rip a movie file off of a DVD or camcord a showing at a theater, I have created that movie with my own labor and can do whatever I want with the file, including posting it online and making money from ad sales or subscription fees? Because by stealing films and TV, or watching stolen films and TV, I’m just exercising my First Amendment rights to freedom of speech? All those are arguments we’ve heard before.

Oh gosh. Where to start? Notice how she intermixes the fact that making a copy and sharing is easy with the idea that people need to "justify" it. Poor Ms. Swartsel. No one ever shared a DVD with you? No one ever invited you over to their house to watch a TV show together? Sometimes "sharing" is just that. It's not stealing.

And, no, no one -- not me, not Roettger, not Torrentfreak -- ever attempted to "justify" the actions that are infringement. None of us said that it is "fair game." None of us said that "information wants to be free." None of us said that it's a First Amendment issue. It seems that, rather than respond to the actual points all of us raised, Swartsel and the MPAA are simply throwing out a ton of strawmen -- every false caricature she can come up with -- to describe the "scary" people who argue that maybe, just maybe, the MPAA is going about this the wrong way.

Mike Masnick wrote that we need to “adapt and deal with reality,” and actually, I think he’s right – depending on which reality we’re talking about. Is it the reality that the Internet and the explosion of mobile technology have opened up vast new ways for us to communicate with one another and for film and TV-makers to offer their work to people who want to watch it? Because as Julia blogged last month, there are “more options than ever before to get movies and TV shows online safely and legitimately” – we have a list on MPAA.org here, and the creative minds in our industry are working on even more as we speak.

And yet... and yet, as folks like Wil Wheaton recently pointed out, those efforts are still at about the 1997 level of fan friendliness. They still treat most people as if they were criminals who need to be limited and contained. For the most part, they do not offer the same level of convenience and user-friendliness of other options that are out there, even if they are illegal. Historical evidence has shown time and time again that what Swartsel thinks of as "theft" is not in any way similar to "theft," but is merely her industry's best customers expressing how they would like to be offered content.

And sometimes, indeed, the industry does get it right -- but it's usually with a lot of kicking and screaming as they're dragged there by a much more innovative tech company. Netflix, of course, is a great example. Yet, every other online movie offering is horribly limited. Things like only being able to watch a movie within a 24 hours period, forcing people to watch previews (and the silly FBI warning for something they paid for) isn't fan friendly at all. It just drives more people to unauthorized means.

And, as for Netflix, which actually does seem to be about as consumer friendly as they come (and has done quite well because of it), well, then along comes the MPAA and the Hollywood studios with plans to kill the golden goose, by doing everything possible to strangle it. They're ratcheting up the prices, they're limiting the selection (drastically). They're trying to demand further restrictions.

Honestly, it's quite easy to show that the MPAA and its member studios have done much more to drive people to infringement than any mere reporter who simply points out the reality of the market.

Is it the reality that some people do steal content online? Unfortunately, it’s clear that’s true – otherwise we probably wouldn’t be having this conversation. But do “many, many people” really intend to engage in theft just to watch a movie or TV show cheaply or for free? We doubt it, particularly if legitimate, better alternatives are available; if they know it’s wrong; and if they understand it’s not a victimless crime.

Ah, my favorite bit of sophistry, which really shows that Swartsel is somewhat new to this particular debate. Look, the industry has been screaming about "education" and "victimless crimes" for decades ("home taping is killing music!"). And it's totally bogus and everyone knows it. Even bringing it up is an admission that you have no real argument. Both significant research and basic history show that this is not an "education" issue. Telling them "file sharing is bad," doesn't change anyone's mind. And these people are more than willing to pay, as is seen time and time again by study after study after study after study.

While Swartsel and the MPAA sit back and claim "but we are offering legal options!" they're totally missing the point (again). They're not offering the legal options that people want. In some cases they are, but every time they get close, they try to make those good services worse, and drive more people to alternatives. The people are willing to pay if given a reasonable option that doesn't treat them like a criminal and put ridiculous restrictions on them.

That's not "theft," that's frustration that the industry is so clueless that it can't offer a good service after all these years.

But if what Masnick means is that we need to throw up our hands and look the other way while people who had nothing to do with making a movie or a TV show steal and profit from it, that is a reality to which we do not care to adapt, period.

In what world does "learning to adapt" mean looking the other way? Seriously, if you're going to make ridiculously false statements about my position, at least make them appear logically consistent. I'm not saying throw up your hands. I'm saying stop being stupid and start offering services that don't treat people like criminals and which actually compete on value with the services that people want. It's not that hard, but if you're going to go around calling your biggest fans criminals a dozen times in the course of seven short paragraphs, I guess it's little surprise that you wouldn't be able to comprehend such basic things.

Filed Under: alex swartsel, business models, mpaa, sharing, stealing, theft
Companies: mpaa