Why Does The Entertainment Industry Insist That It Can Veto Any Innovation It Doesn't Like?

from the over-and-over-and-over-again dept

For years, we’ve seen that the entertainment industry honestly seems to think that it has the right to veto and kill off any new technology that doesn’t fit into its own business model plans. Of course, they’ve had some support in this from copyright maximalists, like former head of the Copyright Office, Ralph Oman, who recently declared that all new technologies that impact content should be presumed illegal until Congress decides otherwise. Can you imagine what sort of innovation we’d have in the consumer electronics space if we had to wait for Congress’ approval for each new device? Especially given the power to lobby against such approvals?

I’m reminded of this thanks to News Corp. (via Fox) filing for a new injunction against Dish Networks for the latest version of its DVR, the Dish Hopper with Sling. Now, you may recall that Fox already tried to get an injunction against Dish’s Hopper with Sling and lost pretty badly (even as it pretended that it had won). Fox is appealing that decision, but also filed a new request for an injunction against the updated device, claiming that the key new feature, Hopper Transfers, goes beyond anything else and (once again), must be stopped.

This is the same old story over and over again. The last century plus of copyright law has been driven by the entertainment industry flipping out time and time again over new innovations that they don’t think should be allowed. The 1909 Copyright Act was driven, in large part, by the introduction of the evil player piano, leading many to insist that this would kill the demand for live music and put musicians out of work.

Around that time, there was also the invention of the gramophone, or, as John Philip Sousa called it, “that infernal machine.” He famously claimed, “these talking machines are going to ruin the artistic development of music in this country,” and that “we will not have a vocal cord left,” because evolution will deem them not necessary due to “talking machines.”

Then along came radio, and it too, was destined to wipe out the industry, with ASCAP demanding that any song that was to be played on the radio first needed to (a) get permission from the rights holder and (b) have the DJ state clearly before each song that it was being played “by special permission” from the rightsholder. When people started mocking that phrase (and someone even wrote a song about it), ASCAP stated that the permission line had to be spoken by DJs with “no facetious trifling.”

Moving on, along came cable TV to add some competition to the TV market. And what happened? Lawsuits of course. “It would be difficult to imagine a more flagrant violation of the Copyright Act,” we were told.

And you may have heard what happened when the original VCR was invented. Why the MPAA’s Jack Valenti had a thing or two to say about that:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Cassette recorder? “Home taping is killing music.”

DVR? Must be illegal. According to the head of Turner Broadcasting: “People who watch TV without commercials are stealing from the entertainment producers.”

How about the first real MP3 player, the Diamond Rio? Lawsuit filed in which it was stated that allowing the device, “will injure not only the record companies and artists whose work will be pirated, but also the music publishers, musicians, background singers, songwriters and others whose existence is dependent on revenue earned by record sales.”

YouTube? Viacom’s lawsuit is still ongoing, but Viacom insisted that, if allowed, YouTube would “severely impair, if not completely destroy, the value of many copyrighted creations.”

And lets not even get into all of the technologies that the entertainment industry has been shutting down over the past few years. Zediva? Dead. ivi? Gone. Aereo? Still here, but fighting. Veoh? Dead (even though it won its lawsuit). MP3Tunes? Bankrupt due to lawsuit (even though it won too). There are many more as well.

See a pattern yet? This pattern repeats over and over and over and over again. The entertainment industry, aided by the Copyright Office, seems to think that there’s some sort of role it has to play in giving the yay or nay vote to any new technological innovation that concerns content consumption. And, of course, the vote is always “nay.” In the long run, that always turns out to be the wrong vote. So why do we constantly allow the entertainment industry to get away with this nonsense? This filing from Fox is merely the latest in a very long line of these kinds of actions, and it should be immensely troubling to those who recognize that the best way for the entertainment industry itself to thrive in the modern world is to embrace these new services, which increase value to consumers and make them more interested in watching/listening to the content being produced.

You would think that, after a century of these examples, those in the entertainment industry might finally realize that looking for the opportunities in these innovations is a more productive strategy than trying to kill every new technology. Apparently, however, the industry is still run by people who have no sense of history, other than the history of always ratcheting up copyright enforcement.

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Companies: dish, fox

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Comments on “Why Does The Entertainment Industry Insist That It Can Veto Any Innovation It Doesn't Like?”

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Ninja (profile) says:

This should be always used as a defense. I’m fairly sure all, ALL of the mentioned causalities along the destructive and abusive litigation path the established industry has chosen would be welcomed with honors if they had come with them first and they were the ones benefiting from the money. And the Govt happily submits to their wishes. Again it reminds me of that South Park episode (the IT vehicle). Because some moron says in a completely biased, bogus and dishonest statement that they employ the entire goddamn world and everything would be doomed because they are losing twice the planetary GDP (as impossible as it logically is) the Govt steps in to protect that moronic business model, regardless of how insane and harmful that action obviously is in the long term.

So how do we the people deal with this? We share, we crowdsource, we open source.

Anonymous Coward says:

Of course, they’ve had some support in this from copyright maximalists, like former head of the Copyright Office, Ralph Oman, who recently declared that all new technologies that impact content should be presumed illegal until Congress decides otherwise.

You keep repeating this, but it was wrong the first time you claimed it and it’s wrong now. That’s not what he said. Care to discuss the matter on the merits?

Anonymous Coward says:

Re: Re: Re: Re:

“Indisputably, Congress drafted the Copyright Act to prevent the creative efforts of authors from being usurped by new technologies. That core principle is at the heart of the Copyright Act. Congressional intent would be undercut by any decision that would sanction the use of technologies which could be used indirectly to undermine its goals”

Sure seems to me that Mike’s correct on what he said.

Anonymous Coward says:

Re: Re:

It most definitely is true. There was an entire article written about this, complete with links to comments made by the man stating exactly this.


Pulling from the article the relevant snippet:

Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.

It’s not surprising, AJ, that you choose to ignore this and yet again prove exactly where your loyalties lie. With copyright maximalists.

You’re just a belligerent troll. None of us here expect anything less or more from you.

Anonymous Coward says:

Re: Re: Re:

In that article, Mike pulled some quotes out of context and twisted their meaning. I don’t think it’s me being a “belligerent troll” to ask Mike to discuss the point. I’m happy to discuss it with him, and I hope he’ll take a moment to address the merits. The only one being belligerent is you.

Franklin G Ryzzo (profile) says:

Re: Re: Re: Re:

As was requested below, why don’t you present your interpretation of what he said, why you describe Mike’s interpretation as “pulled some quotes out of context and twisted their meaning”, and present the merits of why you feel your interpretation to be correct. I would think that if Mike was actually going to respond, this would be the minimum amount of effort you would need to display to initiate a serious conversation. Even if he doesn’t respond, there are plenty of us here that wouldn’t mind having a rational discussion which you have proven you are capable of. The ball is in your court…

Anonymous Coward says:

Re: Re: Re: Re:

“furthermore, that exceptions should be granted, if at all, only by Congress, the body institutionally able to balance the delicate interests of the sometimes-competing interests involved in high-stakes copyright matters.”
“Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established.”

How do you interpret that?

Ima Fish (profile) says:

Great overview, but you forgot the player piano. Under copyright laws in the 1800s they were perfectly legal and attempts to ban them or collect licenses from them failed. Back then, only published sheet music was protected and player piano scrolls were not considered publications.

After lawsuits failed, Congress changed copyright law to make unauthorized performance illegal. And now syncing music to video without authorization is illegal, even if you have the individual rights to both. Great job Congress!

out_of_the_blue says:

Your perspective is that without a stake in the game, Mike.

Yet again, you only come across as a puzzled dolt. You should at least take as given that moneyed interests will always use as much leverage as possible to pursue that what they see as in their interests.

By the way, they’re certainly right that all those gadgets you list increase piracy, regardless whether they got more income by re-cycling old products (those where can actually ignore “sunk (or fixed) costs” because long since recovered). But the end of that gravy train is in sight.

Anyway, since you’ve NO fix to even propose, it’s just MORE useless complaining.

Can you see YOUR OWN PATTERN yet, Mike? It’s endless re-cycling of “See? Buggy whips are out now that these new-fangled horseless carriages are in.” — You stick to what you know works, exactly as does Big Media!

(And for the obvious reaction: I basically work with what Mike puts out, so when he only repeats endlessly, so do I.)

Real mystery here is how Mike “makes a living by writing”, as he claims. It IS a different era when you can get income without any visible ads it could be from. Tell us more on how that works, Mike.

JMT says:

Re: Your perspective is that without a stake in the game, Mike.

“By the way, they’re certainly right that all those gadgets you list increase piracy, regardless whether they got more income…”

Why would you waste time and energy caring about piracy if you’re making more money? That time and energy invested in trying to prevent piracy will never be recouped; it’s a bad investment, money down the drain.

“But the end of that gravy train is in sight.”

Another bold claim from Blue with no explanation as to what you?re actually claiming…

“Anyway, since you’ve NO fix to even propose, it’s just MORE useless complaining.”

The problem is the entertainment industry complaining about technological advancement. The “fix” is to stop complaining and use these advancements to their benefit. This has been stated countless times.

“Real mystery here is how Mike “makes a living by writing”, as he claims.”

It’s only a mystery to the intellectually impaired. Most of us can figure it out pretty easily.

Rikuo (profile) says:

Re: Re: Your perspective is that without a stake in the game, Mike.

Blue, take a look at my avatar. See the word insider there? That means I’ve purchased an insider package, with money. I pay Mike $15 a month for that package. So do plenty of other people on the site. That’s not his only revenue stream. He consults as well.
So unless you’re prepared to suddenly show us smoking gun evidence of all this supposed corruption, shut the fuck up about his income stream.

AdamF (profile) says:

In other news: it's been a slow day today.

In your own words: “This is the same old story over and over again.”
An interesting article, as usual, but there is nothing new here. As much as I usually disagree with OOTB, he may have a point this once. A number of techdirt articles start out with a bit of (interesting) news, before repeating the same old arguments (and preaching to the choir and deaf congregation). This time, there is enough news for only 2 sentences. Why bother?

Anonymous Coward says:

regardless of the number of times the entertainment industries have ‘freaked out’ over new innovations and regardless of the number of times they have been successful in curbing the advancement of new innovation because of their own fear of the new, the unknown, the ones that should be even more ashamed of what has happened over the years are the politicians that have, either willingly or after accepting ‘incentives’, done whatever the entertainment industries demanded to stifle any and all challenges to their backward thinking business models. had those politicians done ‘the right thing’, as they were appointed to do and looked after the interests of the majority, not the most wealthy, how different and almost certainly, better our present day would be and probably how much brighter our future would also be. hindsight and stupidity seem to go hand in glove with US senators. you get more proof of that than is reported here oh, so often!!

Anonymous Coward says:

The middlemen who make their money from the moving picture and music businesses would have passed up every opportunity they had to expand their businesses, whether it was TV or cable or the VCR or records, cassettes or mp3s.
Given that history, why on earth does anyone ever listen to them. They have demonstrated time and again that the very best tactic for them to follow, if increased exposure and revenue are the aim,is that which they rail against.
At least it goes to show that to really earn big money as middlemen it is a distinct advantage to be both ignorant and incompetent.

Anonymous Coward says:

Re: Response to: Anonymous Coward on Feb 26th, 2013 @ 2:20pm

Is it at all possible that these people keep trying to choke new tech and their own businesses because they get some sexual pleasure from that auto-asphyxiation.
It’s somewhat tempting to not save them from themselves but then we’d have their rotten stinking corpse to deal with, that and having to lie to those who loved them to try to minimise their distress.

‘No, I’m sure it was just a horrible accident, that they never saw coming and was through no fault of their own despite hiring the motel room, buying the ballgag, the silk stockings and taping the bag over their own head. No, I can’t imagine why the life insurance company aren’t paying out.’

X says:


I’ve encountered a problem with Cinavia I’ve never seen reported before. If you’re familiar with Cinavia protection, you know it’s designed to withstand ripping. Even if you break all other forms of copy protection, Cinavia survives and will be present on your burned disc. This means nothing to me in terms of playback because my DVD players don’t detect Cinavia. However, that copy is not detectible in my computer. I can rip and copy the original just fine. The copy plays back in my DVD players just fine. But if I put that copy in my computer, it won’t read the disc. It will try for a few seconds and then just quit. This only happens with copies I’ve made from Cinavia-protected DVDs (“Rock Of Ages”, “Men In Black 3”, etc.). I’ve never heard of this happening before. Have you?

special-interesting (profile) says:

Doesn’t this belong under the heading of ?Just Because They Can?? (they will do it over and over again)

These events would be hilarious on an afternoon soap opera and would make J.R. proud. (cultural reference: Dallas ?who shot J.R.?) Its another effort of industry to take advantage of whatever tools are available to get ahead of the competition.

Silverscarcat is one up on me pointing our the concept of ‘locking up’ culture. (a recurrent theme of this site) Of which would be nice to explore a bit by suggesting it makes a profitable, if ruthless, business model. By eternal suppression of cultural items such as books, movies, songs, software (patents), etc. the media industry can force themselves to be the middlemen of culture charging whatever prices such a monopoly would allow. It is this kind of copyright abuse that robs your bookshelf and Family Archive of new and creative works. (In addition to all the works removed from public domain.)

Being a middleman of culture also provides opportunities to play an audience’s awareness of culture like a conductor oversees an orchestra. Want to blame anyone about modern culture? (point, point.) Its tempting to place all the blame here on present media firms but each is forced by shareholders and a ‘culture of profitable business’. If it weren’t for the damage to our cultural awareness it would be fine.

Beyond the obvious propaganda opportunities this business model offers. (I can’t stomach that much corruption in one day so will stick with the obvious, unfair, business advantage.) one can see that it removes the opportunity’s of the current audience to make derivative works within their lifetimes. Then it is a viable business option to crate a remake of a movie every 10-20 years or so. Thus reinterpreting the culture surrounding that story and reselling it at the same time. (how soon will another remake of The Blob pop up?)

How many Hobbit stories were quashes by the family of Tolkien? How many Batman stories were wiped away by, the figure of, Batman being trademarked? (Trademark is another abused law. Raise the cost of it dramatically or find another way to stop a firm from trademarking everything. Disney? hahaha) Fan Fiction is a wonderfully diverse field that explores characters in ways the original author could or would not. How many plays, videos, band performances, live events of any kind using whatever cultural references have been eliminated form the repertoire of live actors and musicians. Translation or Scanslation groups? What whole sectors of profitable activities have been wiped out by political clout. How much GDP has been lost to… the middlemen of culture?

Note: Satire has been used for centuries in comedy and see no reason why some modern 20th century court found it was not fair use. (there has got to be 10k examples of its historical use in newspaper political comics and literature) Another way in which law is used to edit culture.

Many of the tools used by media firms cement their cultural middleman status are based on hardware (and now software?) and the formats they use. Patent law is also rife with abuse. All of this affects how much and how fast the public domain grows. Sadly the concept and value of the public domain is does not enter into political debate.

At the moment the present batch of politicians only view the public domain as meat for the omnivorous corporate donor (special interest groups) animals that devour anything if only because they need to satisfy the stockholders (rights-holders?) insatiable appetites. Please notice I never mentioned actors and artists etc.

Mentioned was ?after a century of these examples? which brings to my point of the propaganda like editing possibilities that being a middleman of culture gives. Surely in every movie they make is an underlying meem that their way of business is just and valid. The unmentioned and unanswered question is why is the concept of public domain vacant from the political and public vocabulary?

It seems a director/producer’s self justification claim is solely based on an over 100 million gross.

Innovation can be a wonderful thing in that it makes our lives easier, better, longer and leaves time for more fun. It also has the benefit of bringing monopolies down to earth. I encourage any idea that leads to the expansion of our shared culture. Many times innovation has succeeded by eliminating the middleman and we can only hope… (silence)

My punch line is another reference to ‘cigarette arguments’ because even if the firms involved feel they have no choice in their actions… they know the consequences to public domain and the culture we need to be able to share. Grim Reaper Shinigami Inc. would be proud of them and might consider contracting them as media reps.


The ‘tying up culture’ business model is another example of how the elimination of the entire copyright amendment would simplify our lives and remove the cultural middlemen who profit by such behavior. I am in favor of some type of author protection for a term much less that the life of the audience but don’t call it copyright! Call it something else, because it seems, the entire copyright law has been corrupted and its to late to be saved.

We can work on trademark law and dump software patents if we can.

My thread of logic is here: http://www.techdirt.com/articles/20130222/14191722072/six-strikes-officially-begins-monday.shtml#c2558 which basically says ?culture (and cultural awareness) will grow when copyright is less that the lives of the audience?.

I always seem late to the party but thanks for leaving me some strongly media laden drinks, hardware based sushi and a light format salad. (and don’t forget the satirical dessert) I have in mind, every time is start one of my essays, something short, possibly humorous and definitely sweet but am amazed at how it grows from that. (and turns out completely different)

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