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MPAA, unwittingly, makes EFF's point - October 21, 2008

Fred von Lohmann of the Electronic Frontier Foundation seems to have hit nerve with his post last week on the organization's policy blog, "Why Hollywood Hates RealDVD." Speaking up for Hollywood, the Motion Picture Assn. of America's chief technology officer, Jim Williams, has responded with an open letter to EFF titled, "Hollywood isn't Living in the Past, EFF Shouldn't Either." The letter was published in full by Cnet. In it, Williams argues that Von Lohmann's claim "that Hollywood is anti-technology and innovation," is "disingenuous and wrongheaded."

According to Williams:

The days of Hollywood being from Mars and Silicon Valley being from Venus are simply over. So forgive us if we take offense when the EFF and other activist organizations that continually take the side of those who profit from widespread copyright infringement attack our industry as one that stifles innovation. It's a desperate throw-back to the Napster days of old when they pull out this tired and weathered playbook. It's not 2001 anymore. We've moved on. So should you.

I should disclose here that Media Wonk had a minor role in the exchange. In his post, Von Lohmann linked to some reporting of mine on efforts within the DVD Copy Control Assn. to develop a "managed-copy" system for DVDs and Fred called me before writing his post to check some facts regarding that history.

Yet, without meaning to add to any offense taken by either side, it seems to me that Williams' response, perhaps without his quite realizing it, exhibits precisely the attitude Von Lohmann was criticizing and that Williams set out to refute.

Williams' letter, reasonably enough, itemizes some of the many new ways consumers today are able legally to access studio content:

To the surprise of some skeptical Internet watchers, Hulu, the NewsCorp and NBC Universal backed video streaming site, has been both a popular and critical success. And, beyond what you can get through cable and satellite on-demand services, thousands of movies are now available for instant rental, download or ad-supported streaming via sites such as Apple's iTunes, Amazon, and NetFlix. In fact, there are more than 275 legal Web sites worldwide that provide high quality, digital content to consumers.

But he blows it with this sentence:

Isn't it also just a little insincere to cast the studios as "anti-innovation" simply because they have filed a lawsuit against a technology company for introducing a product to market that effectively creates a profit mechanism for themselves built on the back of our members' copyrighted content?

Um, isn't that exactly Von Lohmann's point? "Built on the back of our members' copyrighted content"? It never seems to occur to Williams that RealDVD might be built on the back of consumers' unilateral right to make appropriate use of their own DVDs.

To Williams, I take it, consumers have no such right and should not ever have it. If consumers are to be allowed to copy their DVDs it will a privilege granted to them by the studios, under license, using tools approved by the studios.

That's a perfectly coherent position to take, with respectable grounding in the law. But it's more or less the definition of "anti-innovation": You can't build a business "on the back" of our copyrights. No independent innovation allowed.

It's the same reflex that led the studios to try to ban the Betamax 25 years ago and to try to strangle the video rental business in its cradle.

There are merits and flaws on both sides of the argument (the EFF, for instance, seems to assume that all innovation is, ipso facto, beneficial). But let's at least be clear on what the argument is really about.

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