Stop the Presses: Hollywood Turns Up the Heat

It was law professor and author Lawrence Lessig who first described the battle for control of the Net as a kind of civil war between Northern and Southern California: between Silicon Valley and Hollywood.

The North, he says, “believes in a free exchange of ideas”. The modern South wants to protect intellectual property the way the old South wanted to protect its privileged plantation system. If you want to traffic in any of its copyrighted material, you have to visit “their plantation and seek permission from the master”. And, “if you develop technology that interferes with their right of perfect control, you will be punished.”

In this civil war, everyone who wants to protect the Net's wide-open frontiers is a Siliconian, and everyone who wants to maintain absolute control over the distribution and use of “content” is a Hollywoodian.

The latter would include Jamie Kellner, the chairman and CEO of Turner Broadcasting, who was installed by AOL's Bob Pittman in the wake of the AOL/Time Warner merger. In an April 2002 interview with Cableworld, Kellner said, “I'm a big believer we have to make television more convenient or we will drive the penetration of PVRs and things like that, which I'm not sure is good for the cable industry or the broadcast industry or the networks.”

When asked to explain why, he continued:

Because of the ad skips....It's 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.

PVRs are Personal Video Recorders. The most popular PVR is the Linux-powered TiVo. Its main competition comes from ReplayTV, which sells under the Panasonic and SonicBlue brand names. ReplayTV PVRs have the power not only to record TV programs, but to share them over the Net. To Hollywood, sharing is theft. In testimony before Congress, Jack Valenti, chairman and CEO of the Motion Picture Association of America (MPAA), said, “The potential undoing of America's greatest export trade prize...is the theft of movies in both the analog and digital formats.” In that same testimony, he outlined a three-prong attack on “piracy” that began this way:

First, we have taken on the task of protecting copyright laws in the courts....We have to insist that copyright laws cannot be casually regarded, for if those laws are shrunk or loosened, the entire fabric of costly creative works is in deep trouble.

So, as I write this (on May 2, 2002), ReplayTV finds itself the subject of a lawsuit brought by a raft of TV and film studios. In the course of discovery, the plaintiffs filed a motion asking ReplayTV to turn over precise customer usage records. Cory Doctorow, outreach director for the Electronic Frontier Foundation, describes what happened next:

As we understand it, the Court ordered ReplayTV to change its software to include spyware that will capture its customers' clickstream—every commercial skipped, every show watched, every recording shared over the network. The plaintiffs—a cabal of Hollywood studios and TV networks—asked for this information as part of the pretrial discovery process, and when ReplayTV responded that it did not have the data or the means to collect it, the judge ordered them to change the software to collect the information within 60 days. When ReplayTV tried to safeguard its customers privacy by making the mandated spyware an opt-in process, the judge denied the request.

By the way, TiVo does not collect individual data—only aggregate statistics—and all data gathering is opt-out for customers. But the precedent here puts TiVo no less at risk than ReplayTV. Valenti's legal attack strategy is sure to send a message to the legal departments of the world's TiVos.

In a recent interview with Business 2.0, Lessig explained the strategic context:

The problem today is that the words “intellectual property” have become captured by people like my friend Jack Valenti, who goes around talking about intellectual property not as a balance but as an extreme; not as something that we're supposed to be constantly restriking as technologies change to make sure it doesn't stifle innovation, but as a tool that the dinosaurs can use to make sure there are no mammals in the future.

Cory Doctorow puts it another way, “The role of the technology industry is to blaze new trails that create new opportunities for Hollywood. The role of Hollywood is to seek injunctive relief from those opportunities.”

But Silicon Valley has some friends whose jobs cross the boundaries. Mark Cuban, most familiar these days as the high-profile owner of the Dallas Mavericks NBA basketball team, is also chairman of HDNet, the first all-HD (high definition) TV network. At a speech to the National Association of Broadcasters, Cuban called on the broadcasting industry to “just completely ignore” Hollywood in the fight over copyright and intellectual property, calling the litigious studios a “chicken little environment”.

—Doc Searls