[wordup] Top Ten New Copyright Crimes

[Adam Shand]

The context is different, but still surprisingly apt:

  ...And viddy films I would. Where I was taken to, brothers, was like
  no cine I'd been in before. I was bound up in a straight-jacket and my
  gulliver was strapped to a headrest with like wires running away from
  it. Then they clamped like lidlocks on my eyes so I could not shut
  them no matter how hard I tried. It seemed a bit crazy to me, but I
  let them get on with what they wanted to get on with. If I was to be a
  free young malchick in a fortnight's time, I would put up with much in
  the meantime, my brothers...

  -- Alex, from A Clockwork Orange 

This is a pretty good article, there are lots of links and the
formatting is much better on the original so you're probably better off
reading it there.

Other then generally pointing out good common sense the link to Jack
Valenti's bio on the MPAA's web site is terrifying.  Not in what it says
but more in that someone actually *wants* that crap next to their name. 
  http://www.mpaa.org/jack/jack/index.htm

Adam.

From: http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=198

Top Ten New Copyright Crimes
Posted by Ernest Miller on Thursday, May 02 @ 13:05:27 EDT

Jamie Kellner, chairman and CEO of Turner Broadcasting (an AOL Time
Warner company), was recently interviewed by [INSIDE] on the future of
television (Content's King). In the interview, Mr. Kellner said some
very interesting things, including characterizing those who skip
television commercials as thieves:

  [Ad skips are] theft. Your contract with the network when you get the
  show is you're going to watch the spots. Otherwise you couldn't get
  the show on an ad-supported basis. Any time you skip a commercial or
  watch the button you're actually stealing the programming. To help
  develop Mr. Kellner's unfortunately common (at least in Hollywood)
  view of copyright, LawMeme offers the top ten new copyright crimes, as
  well as further choice quotes and commentary from Mr. Kellner's
  interview.

FOLLOWUP 2359 08 May 2002

LawMeme has an analysis of a new report that shows that PVRs are not as
bad for TV advertising as thought (Study: PVRs Not Necessarily the Death
of TV Advertising).

10. Watching PBS without making a donation.

You know who you are, you cheap ...

9. Changing radio stations in the car when a commercial comes on.

Future radios will prevent listeners from changing channels when a
commercial comes on. The RIAA has not yet taken a position on whether it
is permissible to switch channels when the listener doesn't like the
song.

8. Channel Surfing during commercials, especially with
   Picture-in-Picture capability.

Similar to radio, skipping through channels, particularly when combined
with picture-in-picture (which permits viewers to know precisely when an
ad block ends), will be prohibited.

7. Getting into a movie after the previews, but just in time for the
   main feature.

Theaters will be required to close their doors once the advertising and
previews have begun. The MPAA has not yet taken a position on
time-in-seat requirements for advertising in the pre-preview slide show
or whether audiences should be compelled to watch the credits at the end
of the movie.

6. PBS

How can commercially sponsored broadcast networks compete with a
government sponsored network?

5. Inviting friends over to watch pay-per-view.

When you call to authorize viewing, you will be required to indicate the
number of people present to watch. Compliance will be monitored and
viewers must identify themselves.

4. Blocking pop-up ads on the Internet.

Yeah, Mozilla and Opera users, this means you!

3. Not buying things from the advertisers on television shows.

Part of your contract is that not only do you watch the advertisements,
but that you subsequently buy from the advertisers. If you don't buy
from the advertisers, the whole system breaks down.

2. Watching MTV if you are older than 35 or Matlock reruns if you are
   younger than 40.

Advertisers buy ads to reach a particular demographic. If you aren't
part of that demographic you are, effectively, a thief.

1. Libraries and librarians.

This is why we have the Racketeer Influenced and Corrupt Organization
(RICO) Act.

Seriously, Kellner, who is a very powerful man, has said some truly
disturbing things in his interview. Not merely once, or off-the-cuff,
but multiple times in many different ways. At least Kellner is
reasonably straight forward in his intentions, unlike Jack Valenti.

Kellner on bathroom breaks:

  I guess there's a certain amount of tolerance for going to the
  bathroom. But if you formalize it and you create a device that skips
  certain second increments, you've got that only for one reason, unless
  you go to the bathroom for 30 seconds. They've done that just to make
  it easy for someone to skip a commercial. Here, of course, he is
  referring to the ReplayTV 4000, which can skip forward in 30 second
  increments and has already been sued (basically, using Kellner's
  theory). Of course, note that there is only "a certain amount of
  tolerance." Go to the bathroom too much and you are a thief.

Kellner on Sony v. Universal, i.e. the Betamax case

  Our company is working on a number of different VOD [Video on Demand]
  models. The question's whether these are going to be head-end-based
  models or in-home models and whether ultimately there's going to be a
  license required for use of the copyrighted material, or whether
  people make a bet the Betamax case can cover this usage. My bet would
  be the Betamax case is not going to cover this usage. What was a
  highly questionable decision with the new technology will not stand up
  to the potential of the digital world. Whether there's going to be a
  challenge or whether it's going to be legislation, there's going to be
  some way in the digital world that we can protect copywritten
  material. I think that that's inevitable....

  Again, I think that whether it's legislation, whether it's new
  technology, whether it's challenging Betamax, whatever it is in the
  video marketplace, we're going to have to find a way to protect
  copywritten material or there will be less of it made or it will not
  be made available in windows where it's not protectable and that's not
  good for consumers, so there's got to be some way it's protected.

Basically, Kellner is challenging the legitimacy of Sony v. Universal,
which made it clear that VCRs are legal. While most copyright owners
claim not to want to interfere with the right of citizens to time
shift, Kellner does away with the pretense. In his view, Sony "was a
highly questionable decision" in the first place.

Kellner on Napster

  The audio marketplace--Napster and other companies had a great game
  going. They figured out how to use the Internet to give music away 
  that they didn't own and make it into a business. Everyone was
  planning on getting rich there at one point. The companies that are
  financing and own copyrights stepped in and challenged it, and it's
  not a very rosy picture for them right now. I think the idea of
  copyright is very important--and it's respected by the courts and our
  government--and as people realize the potential of what the Internet 
  with digital can do in terms of distribution, I think there's a good 
  decision to be made that will protect the copyright.... Someone's
  going to have to recognize that once we've entered the digital world
  people can send out perfect copies without any costs to large numbers
  of people in many different territories of the world [and] can
  dramatically disrupt the system that we've built that allows us to
  produce and distribute content and pay for it and make...a profit in
  the investment, and that has to be addressed. 

What has to be addressed? Copyright infringement is illegal. The Napster
case was decided (mostly correctly) on established copyright law. There
will be disruptions in distribution chains, but that is the beauty of 
capitalism. Robert Heinlein said it well:

  There has grown up in the minds of certain groups in this country the
  notion that because a man or a corporation has made a profit out of
  the public for a number of years , the government and the courts are
  charged with the duty of guaranteeing such profit in the future, even
  in the face of changing circumstances and contrary public interest.
  This strange doctrine is not supported by statute nor common law.
  Neither individuals nor corporations have any right to come into court
  and ask that the clock of history be stopped ,or turned back, for
  their private benefit.
  -- "Life-Line"

Kellner on Innovation

  I encourage innovation, and I believe that we should try to satisfy
  the marketplace, make it as easy and convenient for people to get what
  they want out of their cable subscriptions, so I'm all for that. I'm
  for multiplex and multiplay because in many ways it does a similar
  thing, and it doesn't add in the cost of VOD. It's sort of half a step
  in the same direction for those who don't want to take the full step,
  and it's something that can be done relatively quickly and easily. But
  I'm certainly not opposed, and I encourage the idea of exploring new
  models with new technology that make it better for people. At the same
  time, we have to make sure we don't damage the existing businesses,
  whether it's pay-per-view business--what does it do to that on the
  cable side--and that we don't damage the advertising-supported
  networks, cable and broadcast. 

The problem with capitalism, see, is that in creating new markets you
usually destroy older markets. Kellner and Hollywood just don't seem to
understand that. As Copyfight put it more eloquently (Speak Softly and
Carry a Big Sledgehammer), Hollywood has fallen in love with the
creative and distribution possibilities of the Internet, but feel
betrayed that those same possibilities will destroy many of their
existing business models.

Kellner on Contracts

  I've spoken out about this a number of times. Again, it doesn't handle
  the deal that exists. The only payment for a lot [of content] is the
  willingness of the viewer to watch the spot, the commercial. That's
  part of the contract between the network and the viewer. For anybody
  to step in between that content and encourage the viewer to disregard
  the payment in time that he's making--I think everybody should fight
  those people...or let the viewer have a subscription model where they
  pay for that, in which case the monies can be taken in and distributed
  back to cover the loss of the ad revenue. This is the time to honestly
  address it; also, for people to deal with it. If you think it's
  something that's good for consumers, give them the choice of either
  watching the commercials or paying incremental money for the service
  and make sure that people in the business understand the economic
  damage they can do by licensing this product. 

Will someone please send this man to business school? No one is forcing
Turner to use their free broadcast airwaves. Turner is perfectly free to
stick with subscription cable revenues. If they don't like the
characteristics of a particular medium, they don't have to use it. No
medium can force their readers to pay attention to advertisements
(newspaper, radio, movies, etc.). What makes television different?

Kellner on how television won't change

  I don't think [PVRs] changes the way you make programming. I think it
  may change the way you market programming. If you have something you
  really, really believe in and you have a large installed base of PVRs
  out there, you may be willing to invest a lot more money on the
  launching and the marketing just to get the PVR/VOD viewer to go home
  and log in to receive the show because you can probably get a lot of
  additional viewership. If you're against tough competition, you could
  put a program against Friends and if there's a large PVR base you
  could try to pick up people who are still going to watch Friends, but
  will you watch the next half-hour, the next hour? You pick up People
  magazine and see this ad for a new show and you see a lot of promotion
  on the air and if it's a good enough idea maybe you go home and log in
  on your PVR. You may get very aggressive at promotion because you have
  two shots at getting people there versus one. 

If I were Turner, I would seriously consider firing this guy. Of course
PVRs will change the way you make programming. Fragmented special
audiences require different types of production than the nearly
monolithic television audiences of the past. Based on Kellner's theory,
cable shouldn't have changed the way programming was made either. Formal
networks are dying, and will die (unless courts or legislators change
things). Even Kellner's own innovations, such as multi-casting (showing
the same show more than once a week or on two or more channels), have
changed the way shows are produced. Sheesh, no wonder AOL-TW stock is so
depressed.

Kellner on people as means to his ends and not as ends in themselves

This is from a letter Jamie Kellner wrote to fans of Seventh Heaven,
explaining that viewers are commodities to be sold to advertisers,
"Selling high volumes of 18-34 adults to advertisers does not mean we
aren't very excited about reaching a broader audience ..." (LUV-7H
Correspondence with James Kellner).

Additional Resources

A number of other sites have picked up on the controversy: Slashdot, of
course (Turner CEO: "PVR Users Are Thieves"). Kuro5hin leads off its
post on the subject (Turner CEO says: If you avert your eyes, you are
stealing!) with a highly appropriate quote:

  ...And viddy films I would. Where I was taken to, brothers, was like
  no cine I'd been in before. I was bound up in a straight-jacket and my
  gulliver was strapped to a headrest with like wires running away from
  it. Then they clamped like lidlocks on my eyes so I could not shut
  them no matter how hard I tried. It seemed a bit crazy to me, but I
  let them get on with what they wanted to get on with. If I was to be a
  free young malchick in a fortnight's time, I would put up with much in
  the meantime, my brothers...
  -- Alex, from A Clockwork Orange 

The Shifted Librarian's bank account is already getting a work out (The
Shifted Librarian: Content's King). Go to TiVo Community (aka "the Den
of Thieves") for some heartfelt responses (News: Turner CEO calls TiVo
"Theft"). U.S.S. Clueless's Den Beste has a few choice things to say
(Contracts and Obligations), as does Cory Doctorow (Hollywood fatcat
calls TiVo use "theft").

Unrelated to the current flap is another website, which is the number
two google result for "Jamie Kellner", a website entitled, "J. Kellner,
Source of All Evil".

Interestingly, AOL-TW owns part of TiVo (TiVo Partners). But, we all
know that things are not going very well inside AOL-TW.