The political economy of the MPAA’s War on Piracy.

By Jeffrey Levy-Hinte.

MPAA head Jack Valenti.

The entire independent filmmaking community should celebrate this historic victory. Not only was an obnoxious and ill-conceived policy swept away, but our community was empowered and emboldened to further advocate for the unique interests of independent filmmakers. Unfortunately, as I describe below, this victory was limited and provisional, at best.

In the wake of the screener ban the independent filmmaking community must take the opportunity not only to understand the “logic” of the ban and the court order that halted it, but to critically examine the broader range of piracy and copyright issues pursued by the MPAA, the ideological superstructure that informs these policies, and the power base that allows these policies to achieve political traction. It is imperative that we not only develop a robust analysis based on fact not myth, but seek to develop strategies that allow us to maintain and extend an environment where independent film can thrive.

THE SCREENER BAN

On September 30, 2003, citing “‘a determined commitment to combat digital piracy and to save movie jobs in the future,’ Jack Valenti…announced…that the member companies of the MPAA and their subsidiaries plus DreamWorks and New Line would not send out any screeners for awards consideration purposes.”¹ Thus the 2003 awards screener ban was born.

Opposition to the ban was swift. From independent filmmakers, film critics, Academy members and a wide array of award-granting bodies, to established industry insiders and the heads of the MMPS’ own Specialty Divisions, a singular message was projected loud and clear: the screener ban would be profoundly destructive to the fortunes of independent and specialty-film distribution. Those opposed to the ban called and wrote letters to executives of the MPAA and the MMPS, spoke out in the mass media, published open letters in the trades signed by hundreds of filmmakers, etc. — they dissected the “logic of the ban” and offered to work with the MPAA to find equitable and effective solutions to address their piracy concerns.²

How did the MPAA react to this concerted opposition? On October 23rd the MPAA and the Academy of Motion Pictures Arts and Sciences issued a joint press release announcing that “an agreement had been reached to allow for the distribution of ‘screener’ copies of motion pictures… to Academy members.”³ The remedy was worse than the illness: allowing only Academy members access to screeners severely disadvantaged all of the other accolade and award-granting entities. More to the point, given that the awards strategy of independent films often relies on moving up the awards ladder — from, for instance, critic’s accolades, to the SAG, BAFTA, Golden Globes and culminating in the Academy Awards — this policy only validated the worst fears of those opposing the ban: that the MPAA and the studios desired to win more Academy Awards and that they were using their anti-piracy campaign as a cover to marginalize independent film and competing awards bodies.

The deal with the Academy emboldened opposition to the ban; but the MPAA did not budge. Instead of listening and rethinking a profoundly flawed policy the MPAA and the MMPS stood fast, apparently secure in the knowledge that they were a powerful, well organized and disciplined “cartel” and that they would ride out the uproar.

Recognizing that the screener ban appeared to be illegal, as a last resort a group of independent film producers along with the Independent Feature Project/NY and IFP/LA brought a lawsuit against the MPAA seeking emergency relief to get the ban lifted. On December 5th, Chief Judge Michael Mukasey of the U.S. District Court for the Southern District of New York found that the “plaintiffs have shown a strong likelihood that the agreement entered into by the MPAA with its members and two additional studios to implement the screener ban constitutes an unreasonable and therefore unlawful restraint of trade in violation of Section 1 of the Sherman Act,”⁴ and went on to enjoin the MPAA “from taking any action to implement the ban on awards screeners.”⁵

Though the plaintiffs were victorious, it is important to underscore that the screener ban was not overturned because of the widespread demand to overturn it. Nor did the Court lift the screener ban simply because it was likely to cause irreparable harm to independent filmmakers. Rather, the Plaintiffs prevailed because of the way in which the MPAA and the MMPS instituted the ban — essentially they broke the law by colluding to restrain trade and then proudly admitted their activities in open court.⁶ In hindsight, it was quite fortunate that the MPAA pursued its misguided policy in a manner that blatantly violated Federal anti-trust law, thus creating the opportunity to seek court ordered relief to lift the ban.

One might hope that the MPAA and the MMPS learned their lesson and they will no longer pursue policies that adversely effect independent film. But I suspect that they are drawing precisely the opposite conclusion: they will continue to advance their narrow interests without regard to any harm to others, and will make a concerted, proactive effort to “listen” to their opponents while avoiding any violation of the letter of the law. In a manner of speaking the screener ban was overturned on a technicality, and I can’t imagine that the MPAA and the MMPS will allow this to happen again.

“A MALIGNANT FUNGUS”

“Piracy has become a malignant fungus on the face of our industries and it’s growing even more virulent as we go along”⁷ — so intoned Jack Valenti in his testimony in the screener ban case. This is a rather colorful metaphor to apply to an activity as mundane as the “unauthorized” duplication of motion pictures, but to simply laugh the comment off would be a mistake. Not only is Valenti speaking for the MPAA and the MMPS, but he has positioned himself as the voice of the entire motion picture industry. His views are embedded in everything from the mass media’s treatment of piracy to expansive Federal copyright and anti-piracy legislation, and thus it behooves us to explore his rhetoric more deeply.

Valenti asserts that “America’s crown jewels — its intellectual property — are being looted. Organized, violent, international criminal groups are getting rich from the high gain/low risk business of stealing America’s copyrighted works.”⁸ “The mysterious magic of being able, with a simple click of a mouse, to send a full-length movie hurtling with the speed of light to any part of the planet, is a marketing dream and an anti-piracy nightmare.”⁹ Ipso facto the battle against piracy has to take precedence over all other movie industry related interests, causes and concerns.

Valenti continues: “Between 400,000 to 600,000 movies are being illegally downloaded EVERY DAY! …visitors to the digital realms of KaaZa, Morpheus, Grockster, Gnutella, etc., so-called ‘file-swapping’ sites, and fill their hard drives with new movies, free of charge.”¹⁰ “We know this will increase exponentially in the future. The speed of broadband is nothing compared to the supersonic download speeds being developed right now. Scientists at Caltech have announced ‘FAST,’ an experimental program that can download a DVD quality movie in five seconds!” ¹¹

“To paraphrase Mr. Churchill, I did not become the head of the Motion Picture Association to preside over a decaying industry. …We will not allow the movie industry to suffer the pillaging that has been inflicted on the music industry…we must counter these attacks NOW with all the resolve and imagination we can summon. To remain mute, inert, to casually attend the theft of our movies would be a blunder too dumb to comprehend.”¹²

“Governments need to dedicate the same kinds of legal tools to fighting piracy that they bring to other kinds of organized crime: money laundering statutes, surveillance techniques, and organized crime laws. …Only when governments around the world effectively bring to bear the full powers of the state against these criminals can we expect to make progress.”^{13 14} “It is our most sincere desire to identify a technological solution to the plague of piracy. Until that day, however, I do not believe in dismissing any option to defend creative work online.”¹⁵

The fight against piracy is an avowed personal obsession for Valenti — it is “the dominant issue which has consumed my life”¹⁶ — and where level-headed analysis and an examination of the facts are obviously required for proper public policy analysis Valenti gives us “fungus,” “pillaging” of the “crown jewels,” “a blunder too dumb to comprehend,” and the “full powers of the state.” Beneath this florid and hyperbolic rhetoric lies an insidious organizing principle: the myth that the MMPS are the victim of powerful pirates who threaten the very survival of the industry, and therefore the pirates must be stopped by any means necessary. The Victims are vulnerable and virtuous, while the Pirates are mighty and malicious — it is a battle of Good verses Evil. It is this comprehensive anti-piracy ideology that I indicate with the use of Piracy, with a capital “P.”

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