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Open Paper on anti-piracy |
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This is an open paper being distributed on several email lists
By Mikeal Rogers
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A Premonition of things to come
What will be the next anti-piracy move by the RIAA/MPAA?
Many of us are wondering what the next action by these organizations to impair our rights even further will be. I most definitely have been for quite a while for a simple reason: If we know what they might be trying to do next then maybe we can try to beat them to the punch. At first glance of the actions these two anti-piracy giants have already put forth it looks more like random assaults than meticulous chess like advances by a Mr Burn’s type figure. But in actuality it seems their last move against piracy seems very laid out and will be the worst to date.
Who they are?
It might seem like lumping the MPAA and RIAA together so easily is a little presumptuous. But after looking at the facts carefully it is very obvious they are practically one and the same entity.
First it is important to note that 80% of all media(including; radio, television, internet news and other media, motion pictures, and music) is owned by only 10 large corporations, down from 20 in the early 1980’s.
The MPAA’s website notes only 7 members Walt Disney Company, Sony Pictures Entertainment, Inc., Metro-Goldwyn-Mayer Inc. Paramount Pictures Corporation, Twentieth Century Fox Film Corp.,Universal Studios, Inc., and Warner Bros. While the RIAA notes a remarkable 808 record labels that are “members” of the RIAA. Although many of these record labels are directly owned by the 7 members of the MPAA, indie labels such as Epitaph and Fat Wrech Chords are also noted as members. Which I found interesting considering Fat Wrech Chords owner Fat Mike is quoted on his band NOFX’s site as saying
“I totally back all freedoms on the internet, but a lot of hard working bands are getting cheated out of royalties they need to live off of. Making a living from playing music is hard enough on its own. I think Napster makes it a little harder for us musicians and a little easier for the general record buying public. I think the whole issue is pretty grey, but if it comes down to freedom against big business, I will stand on freedom's side every time.”
Not exactly an endorsement but it proves not all “members” of the RIAA are militant anti-piracy enthusiasts. Giving these indie record labels “membership” in the RIAA no doubt helps their “for the artist” campaign against piracy since major record labels are well known for taking more than their fair share of music profits and throwing pennies to anyone who doesn’t have a platinum record. While “indie” labels tend to give quite a bit more to their artists because “Hey, they did CREATE IT”. Out of the 808 members in the list only 5 are considered worthy enough to appear in the section next to “Member List” on the companies website entitled “Our Members In The Community” 3 of which are Sony Music Entertainment, Time-Warner, and Universal Music Group, who are directly owned by members of the MPAA.
Censorship and the Greed Factor
The MPAA and RIAA have quite a lot in common but when it comes to censorship the RIAA sure does seem like the lesser of two evils. Both the MPAA and RIAA have “voluntary” rating labels for their content but both are used in far different ways. In fact the RIAA originally tried to fight a rating system when the PMRC first brought the issue to the public. The simple “Parental Advisory” sticker holds absolutely no legal ground what so ever since it is a voluntary system. Although they can’t do very much about individual record store policies prohibiting “Sale to Minors”, they have been diligent in thwarting potential laws in Florida, New York, Michigan, Georgia, Tennessee, and Wisconsin.
However, the MPAA has quite a different stance on its “voluntary” rating system. The all too well known “G, PG, PG-13, R, & NC-17” rating system holds very little legal ground, mostly from christian influenced state litigation. But NATO estimates that the majority of theatre owners not only observe the rating system, they treat it like a law. The MPAA claims that this is simply to protect “parents rights” to decide what their children can and can’t see, but if a parent was to try and bring his pre-17 year-old child to an NC-17 film, they would be refused entry. In the mid 1980’s The Video Software Dealers Association (VSDA), our nations major trade organization for video retailers, made it’s “Pledge to Parents” which “strongly endorses the observance of the voluntary movie rating system by video retailers.” This includes limited distribution of NC-17 and Unrated films in theatres across America and Video stores like Blockbuster that prohibit the sale or rent of NC-17 and Unrated films. For enforcing this rating so vigorously they have been the recipients of much praise from the MPAA.
Well then why would two organizations with obvious financial investments in each other be so separated on the same issue. The answer lies in how these two different organizations use the rating system to their advantage. While the RIAA makes millions on record sales because of the lack of responsive enforcement to their rating system, the MPAA uses the rating system to muscle out independent film productions. Since the MPAA administers these ratings with little or no set limitations they tend to soften the ratings of films produced by major film studios while handing out NC-17 ratings to most independent productions with an ounce of “questionable material”.
A film entitled “Orgazmo” written, directed, and starring Trey Parker (co-creator of MPAA’s most wanted list television show south park) was released with an NC-17 rating even though the film had limited violence and only brief nudity.
“We cut some stuff, sent it back and received an NC-17 again. This is ridiculous, this is not an NC-17 movie. There's no sex, there's no nudity, only cartoonish, stupid violence.”
Said Enraged Trey Parker after trying a second time at a better rating. Many Believe that since the film made fun of a particular religious group, and the ratings board is populated with many people known for being right-wing christians, it received such a harsh rating. But if history has shown anything, morals very rarely interfere with corporate greed. Case and point is the critically acclaimed film “Clerks”..
The indie classic Kevin Smith film was made for under $40,000, which not only made more than every penny back but sky rocketed Smith’s career, was originally deemed NC-17. The film had no nudity, no violence, and was given and NC-17 rating for “explicit dialog” and “graphic references to oral sex”. Then how does the MPAA justify it’s R rating to “There’s Something About Mary” when Cameron Diaz has ***** in her hair. Luckily, Smith fought the rating in court and won an R rating for the films official release, but lots of other independent films are forced into limited distribution by a rating system run by the major film studios.
Media Control
Again remembering that only 10 corporations own 80% of all media we can notice how easily these organizations can manipulate the news’ coverage of anti-piracy events. Once I started looking it was so simple. The MPAA can’t really claim it’s “looking out for the artist” like the RIAA can since film makers receive their compensation before a films release and not after. In fact the MPAA has no other position except “We are loosing money” siting a 3 billion dollar annual revenue loss do to international piracy. This figure is quickly follow by the tagline “these figures are NOT currently included in the overall loss estimates.”, well I’m sure the guys down at the IRS had a nice laugh when you tried to explain that every single person who had a pirated copy of a film would have paid full price for it if it weren’t for piracy. In fact their site is litered with inflated loss estimates. Like this little bit:
“One real-world example of piracy’s devastating impact on the legitimate marketplace is with the 1999 release of the film Star Wars: Episode 1 – The Phantom Menace. Pirate copies of the film (created by using camcorders in US theaters) flooded the Asian marketplace while the film was still in U.S. theatrical distribution. When the film opened legitimately in Asian theaters, attendance was far below expectations. In addition, home entertainment retailers lost vital business in the home video window due to the availability of pirated copies. In this case, piracy affected legitimate theatrical distributors, exhibitors and local businesses.”
It sounds legitimate at first, but anyone who has been to Hong Kong or Tokyo knows that piracy didn’t start yesterday in Asia. In fact finding pirated copies of copyrighted works in Hong Kong is easier than finding legitimate ones. Wouldn’t they have taken this into account when estimating the theatre attendance in Asian? Could it have been the fact that the studio was counting on people to see the film in the theatres even after seeing pirated copies because of the barrage of special effects the film included, but any sane person wouldn’t pay 50 cents to watch the film in the theatre after seeing how bad it is? If the recent “Pluto Nash” has shown us anything, it’s that studios can’t tell if a film is bad or not before hyping it up and estimating the release value.
So in the end “we’re doing it for the artists” sounds much better than “we’re doing it for the money”. Using this the RIAA will run attacks and campaigns against specific big name entities in the name of the artist while the MPAA attacks something much broader and detrimental to the community. When the RIAA was all over the news media about it’s attack on Napster the MPAA, by no coincidence, went after the DeCSS circumvention technique. While Napster had a very noticeable and public face the DeCSS circumvention technique had a much less public appearance and was in considerably less media, if it weren’t for Slashdot following the story so closely a lot of us might not even have known about it. The RIAA did win it’s case against Napster, but the MPAA failed to stop the DeCSS.
The next time the RIAA/MPAA team went out they had a much better plan. The RIAA went after Morpheus and Kazaa, two big new faces that filled the Napster void, and the MPAA started a huge campaign geared towards using existing laws to raid and prosecute pirating groups. As an added bonus, while the RIAA was simply trying to shut down systems like Morpheus and Kazaa, the MPAA was seeking litigation to allow the MPAA to send mass hacks, DDOS attacks, and worms all over any of the systems currently infringing on their copyright, even if the systems have not yet been proven to be infringing on their copyright. To try and achieve this the MPAA is still dumping millions into lobbyists and campaign contributions.
Fighting a loosing battle
Although we have had a few victories the american consumer still seems to be fighting a loosing battle against these corporations seeking to impair all of the rights we barely have left. Currently any blank media(including: cd-r, cd-rw, dvd-r, dvd-ram, video cassette, and tape cassette) holds a hidden charge included in the price, that is given to the RIAA and/or MPAA for a “copyright retribution”.
The DMCA still holds most of its power to keep anyone from coming up with methods of “copyright circumvention” and is used far too often because of its loose wording to impair the rights of anyone seeking the simple knowledge gained in breaking and encryption algorithm.
The RIAA won a monumental case against internet radio stations who use copyrighted music, seeking retribution much like the small fee that radio stations pay when they play copyrighted material. But the RIAA insisted that since radio stations are broadcasting audio that is sub-standard to the clarity of current cd technology but internet radio is broadcasting at cd quality, they be ordered to pay much higher retribution for the copyrighted material and be back paid for copyright infringement done before the retribution was made into law. But wait, when the fee was set for those radio stations weren’t they broadcasting at, what was then, quality comparable to the current audio technology. And any musician or record promoter will tell you that radio play INCREASES record sales.
When looking at sites like live365 and shoutcast before this case was won, the answer was simple, these radio stations were playing much more indie music than popular big label music. The majority of the music I saw was punk rock and electronic, most of which are prodominatly on independent record labels. So now the internet radio stations we so loved, since our government already stole the air from us and sold it to corporations in search of controlling the media even further, are gone. Not even a legitimate internet radio station can afford to pay the charges the RIAA is now enforcing. They didn’t need to try and shut them down, they just made it impossible to ever cover the cost of running them.
Checkmate
So after chronicling the RIAA/MPAA in their actions for the last few years it was obvious that they are fueled completely by greed, yet they still spent lots of time and money on certain things that seem less of a problem than others. Certainly the millions of dollars on litigation set out after Morpheus and Kazza could have been spent on a way to keep down the piracy in Asia, especially since right after Morpheus and Kazza pop up another file-trading application will no doubt pop right up. At least they could spend more on releasing their films in Asia and American at the same time. If there was no immediate financial gain then why spend so much to stop it if not to stack the deck for a final blow in anti-piracy? I knew that they had to be gaining legal momentum for a much larger and scarier attack. But What? Then, while reading the MPAA website it was right there, it was right in front of everyone and we didn’t even see it coming. In a section intended to tell consumers what exactly piracy is in all of its forms there is a small section called “Downloadable Media” and it reads:
“Downloadable Media refers to digital files that allow for motion pictures to be compressed and uploaded for direct download onto a computer. Pirates use Downloadable Media formats to illegally offer and distribute motion pictures to other Internet users.”
Why keep attacking the means of distribution when you can cut it off at the source? Why go after certain applications that distribute pirated media and take a small amount of development to engineer, when you can attack the codecs that account for almost all of the pirated media and take years of innovative engineering.
They have already determined that if a technology can be used to detract from their profits(such as blank media) no matter what other purposes the technology can or will be used for.
They have determined that if a technology preserves the original quality of a copyrighted material they can claim insane retributions.
With the MPAA seeking litigation to DDOS, hack, and infect distribution applications and their users why couldn’t they do the same against codec distribution websites and the people who download them.
With Napster they proved that technology doesn’t have to be engineered to infringe on copyright, it simply needs to exist for them to shut it down.
With all the DMCA lunacy going around the MPAA could even say that these codecs “circumvent” their video and audio files on DVDs simply by lowering the file size and making it easier to distribute. It sounds a little more ridiculous and far fetched, but so have the last few cases people have won using the DMCA.
All they would need to do is have the RIAA launch some large, extremely public campaign against the newest big piracy face and the MPAA could throw its multi-million dollar wallet at campaign contributions and lobbyists. After all there are already 32 lobbyists to every congressman in washington, who’s gonna notice a few more. The RIAA doesn’t even have to be involved in the litigation since the all the codecs used to infringe on music rights are used as the audio codecs in film piracy.
I sincerely hope that this doesn’t happen, but I’m almost positive it will. It’s the next step in the anti-piracy movement that gains more and more ground everyday. It is by far the most detrimental of any of it’s predecessors and if we don’t take action against it before it happens then we will be high and dry when they make their move. I doubt you’ll hear anything in our favor about it on the major internet and network news media, if anything at all. Zdnet makes a point to represent the corporate interest in every one of their stories, and the network media has always been against anything remotely resembling “internet outlaws”. It’s not a coincidence that these media hubs are all owned by the very same corporations that are making sure large advances against our freedoms. If we don’t struggle to keep our freedoms then we will inevitably loose them.
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