A guest post from Peter Richman, a lawyer working in the motion picture industry in Los Angeles.
After last year's Stop Online Privacy Act (SOPA) debacle, Hollywood quietly retreated from
the copyright debate to nurse its wounds and rethink strategy. Now, with recent activity at the
Motion Picture Association of America (MPAA) and the introduction of the Copyright Alert
System (CAS), the industry is poised to re-enter the conversation with a fresh plan. As MPAA
Chairman Chris Dodd recently admitted
to the National Press Club, "I'm looking for a new
approach." But in the wake of SOPA, with opposition from Silicon Valley and little traction
in D.C., is there anywhere left to look? As it turns out, Dodd's answers may be waiting in the
unlikeliest of places -- Hollywood's own backyard.
Don't let the party line fool you -- if there's one thing the film and television industry can't live
without, it's copyright infringement. Ask any assistant. Piracy in Hollywood is not just a quiet
expectation, it's a stated requirement, and oftentimes a formal part of job training
. When I started
as a studio assistant, one of the first lessons I learned was how to rip an encrypted DVD. But it's
not just the studios. From agencies to management firms to offices all over town, the volume of
infringing material that trades hands on a daily basis makes Hollywood look like a Chinese flea
Let's take an example. An agent wants to introduce her new director client to the town. How
best to make the introduction? Burn 40 copies of the client's debut feature and send them out
to producers. Now one of the producers watches the film and sees potential for a big-budget
remake. How does he pitch the project to financiers? Burn another dozen copies and send them
out. Now one of the financiers watches the film and wants to gauge the opinion of a younger
demographic. So he burns a few copies and sends them to his daughters at college. And just like
that, 3 executives (and their assistants) have committed over 50 acts of copyright infringement.
Now multiply that by the daily routine of buying, selling, and trading movies, TV shows, books,
and comics, and piracy in Hollywood starts to look less like a dirty secret and more like a
cultural norm. But beyond the illegality and hypocrisy of the situation lies a much more salient
point which is its sheer, bottom-line necessity. Because the truth is, there's no better alternative,
and not even a close second. The quick pace of the industry requires a constant flow of content
and infringement is the way to get it done. In Hollywood, piracy isn't a matter of legal rights; it's
So where does that leave industry policy? While it's safe to assume the MPAA doesn't endorse
the casual infringement that courses through the industry, the organization is working hard to
distance itself from SOPA's one-size-fits-all approach to IP protection. From Dodd's consistent
rhetoric of cooperation
to the recent appointment of Diane Strahan as COO, the MPAA has
made a clear push to partner with the technology industry in the distribution and protection of
digital content. Some may question whether these efforts are genuine -- is Strahan's background
with UltraViolet and digital rights management the right type of experience for the job? Nevertheless, assuming the best, while it's certainly refreshing to see the industry operate under
a banner of collaboration, the real question is whether these efforts are sufficient to craft a new,
comprehensive copyright regime.
Let's take a step back. In the larger scheme of finding Dodd's "new approach," there's one
inescapable reality -- intellectual property protection is a matter of law. Business strategies and
technological advances shape the means of consuming and distributing content, but without a
legal foundation for support, they'll continue to operate on shaky ground. Because as we've
seen, whenever a new wall goes up, a new tunnel isn't far behind. And there's the elephant in
the room of the MPAA's newfound belief in tech-centric partnerships -- what happens when those tunnels
are exposed? When the CAS is subverted? When Ultraviolet is hacked? How will the MPAA
respond when the new salvos break and we're left with the same copyright legislation still
woefully unsuited to the times?
Enter the Hollywood pirates. This is where industry infringement can move the needle by
highlighting the absolute kookiness of our copyright laws. The MPAA professes to support our
current policy in the name of the agents, executives, and filmmakers who undermine that policy
every single day
. So what gives? Does the MPAA ignore its industry's behavior and retreat to
the comfort of the status quo? Or does it stick with its new message, swallow the bitter pill, and
truly commit to a new approach?
The answer comes down to leadership, and if Chris Dodd's words are anything to go by, I'm
inclined to hope for the latter. In every speech, press release, and policy paper, the MPAA makes
sure to stress one common point -- job creation. The film and television industry creates jobs -- not
just in Los Angeles and New York, but across all 50 states. Those jobs are what the MPAA says
it's fighting for, and when the industry says stop pirating, those jobs and a respect for their craft
are a reason many of us listen. There are a host of issues wrapped up in the copyright debate -- creative, business, legal, technological -- but when the dust settles, the industry spends nearly $15 million a year
on lobbying to protect its own interests and that means the jobs of its constituents.
So when a core requirement of those very jobs is to pirate copyright material, it is incumbent on
the MPAA leadership to take a close look at the industry it represents and figure out why.
If Dodd takes that look, he'll see the reality on the ground -- that there are scenarios where an
owner can't control all uses of her work. That speed, or convenience, or necessity may take
priority over a legal claim. In short, that content "in the wild" can take on a life of its own.
And sometimes that's a good thing.
Piracy facilitates business in this industry - and that means jobs. Obviously, the physical copying of Hollywood mailrooms is a far cry from the digital and international piracy truly threatening the studios, but the takeaway remains the same -- copyright
is complicated, content is malleable, and any honest attempt to institute a new intellectual property regime needs to be flexible enough to accommodate the times. It may mean carve-outs and exceptions, it may mean years of research, and it may mean a renewed commitment to
the legislative process. No matter the path, it means that as Dodd continues looking for a new
approach, instead of starting on Capitol Hill or in Silicon Valley, Hollywood might be the place to look after all.