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On SOPA and the Future—and the Past—of Film

By Violet Lucca on January 25, 2012

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The advent of any media technology innovation always guarantees two things: pornographers will pioneer its use, and copyright battles will be fought. And while legislative discussion around the former has laid dormant since the Sixties, the past week’s debates on “piracy” have turned a skirmish into an all-out war. If you’ve been paying attention, it’s no surprise: those tensions are ever present—and have been as long as film has existed. The movie industry is built upon the relentless pursuit of redefining what intellectual property is and what it’s worth.

Before the rise of Hollywood, the arguments supporting the U.S. government’s laissez-faire stance regarding copyright violations were essentially the same as the reasons now given for stricter regulation: it’s good for business. Even when America was still just a colony, American publishers reprinted manuscripts without paying any royalties to their European authors or publishers. Nearly all of today’s largest publishing houses built their legacies on this practice. Belated government intervention came in 1891 at the insistence of American authors who were tired of the same thing happening to their works abroad. But the resulting piece of legislation, the Chase Act, contained large loopholes that allowed things to go on more or less as they had until the 1930s.

For those familiar with film history, those are auspicious years, but for different reasons. In 1888, Thomas Edison met with Eadweard Muybridge and viewed his zoopraxiscope for the first time. Fascinated, he tasked his assistant William K. L. Dickson with creating a device that “does for the eye what the phonograph does for the ear.” In October of the same year, Edison filed for a patent on what would eventually be called the Kinetoscope; a working Kinetoscope would not appear until 1891, when the necessity of flexible celluloid stock was recognized. This in many ways inaugurated moviegoing, bringing a formerly scientific pursuit to the masses. But it also began a war: Dickson collaborated with two other inventors, and created the Mutoscope; Charles Francis Jenkins and Thomas Armat developed the Vitascope; the Lumières collaborated on the Cinématographe; and many other variant projectors and cameras came forth. Edison engaged in long legal battles with each of these companies for patent infringements, and on the same grounds also threatened to sue theaters that didn’t use his machines. These patent lawsuits would often come down to disputes over the smallest components of a projector or camera, such as the Latham film loop, which steadies film stock as it’s moving through the camera or projector and allows images to be captured and projected for long periods of time. With potential competitors being derailed by legal intervention, American film production was effectively limited to Biograph- and Edison-controlled companies. After failing to squeeze out Biograph, in 1908 Edison founded the Motion Picture Patents Company, a trust that united all of the major American film companies, the country’s leading film distributor, and Eastman Kodak, the biggest supplier of raw film stock. Together they held 16 patents, and were allowed to use police (and sometimes hired thugs) to prevent the use of their films and machines by unlicensed exhibitors and distributors. They also established a specific rental rate for films under the guise of “quality control” and limited production to one-reelers.

This history, of course, tells us nothing about the early artists who worked under the MPCC banner. Whether or not they were outraged by (or even aware of) the limitations the trust placed on production is, as it is for those who work for the major studios today and oppose the Stop Online Piracy Act (SOPA), sadly irrelevant. The MPCC was dissolved in 1915 after being declared a monopoly, opening up the field to an oligarchy on the opposite coast: Fox, RKO, Paramount, Warner Bros., MGM, Universal, Columbia, and United Artists. There isn’t a direct lineage between the MPCC and what would eventually become the MPAA, but it’s hard to believe that Edison’s business ideas weren’t instructive. An industry that works together and censors itself is more profitable than one which is held accountable by external, public forces. In 1922, in the midst of rising anti-Semitism, xenophobia, and objections to morally dubious content, Famous Players-Lasky, Metro-Goldwyn (pre-Mayer!) and First National founded the Motion Picture Producers and Distributors of America. William Hays’s role was as much to keep film aboveboard and in line with regional and state censors as it was to curry favor with all branches of the government and military. In exchange, complaints about the group’s vertical integration filed by independent producers went ignored (the famous Paramount decrees would not be implemented till the early 1950s). And now, thanks in large part to the Washington connections of former Lyndon B. Johnson aide Jack Valenti and our first movie-star president Ronald Reagan, we live in an era of horizontal integration and synergy.

Through their numerous subsidiaries, today’s big six media conglomerates exercise an unprecedented influence on how issues relating to copyright are reported and possess an equally daunting ability to lobby key figures. Kirby Dick’s 2006 attempts to use surveillance tactics to reveal the identities of MPAA ratings board members (and, by extension, their mysterious rating criteria) in This Film Is Not Yet Rated was so fraught in part because of the sheer volume of marketers and copyright lobbyists going in and out of the MPAA offices. And it’s very likely that those same blurry figures are behind SOPA and the Protect IP Act (PIPA). Regardless of how you feel about downloading a book, a movie, or some music, both bills have wider-reaching implications than merely preventing “piracy.” SOPA weakens existing “safe harbor” provisions, which allow a site to remove content that infringes upon copyright. Instead, the entire site hosting or linking to copyrighted material would be shut down, spelling doom for sites such as YouTube, Reddit, or Twitter. Cloud computing sites such as MegaUpload (which was shuttered last week) are also in danger of being denied service; sharing and storing large files for business or personal use would be impossible—unless a subsidiary of one of the big six managed it. An Internet on which user-generated content is this tightly controlled and prone to copyright violation is more than reminiscent of the MPCC’s methods: it would leave little if any room on the Internet for producers working outside of the existing media companies, and little incentive for entertainers to pursue new ventures, for fear of litigation, keeping the technical know-how and freedom to innovate primarily in the hands of the big six.

The threat that monopolies pose to innovation is perhaps the most damaging aspect of industry tendencies. From the Eighties onward, the U.S. has shifted away from manufacturing and toward an economy based on intellectual property and services. Eastman Kodak, which threw its hat in with Edison long ago, only survived as long as it did because of its many patents. Among the most valuable are the patents concerning digital camera technology (estimated to be worth nearly $2 billion), which the company developed throughout the Seventies. Instead of accepting the changing realities of the market, Kodak kept their discoveries under wraps for decades for fear of their negative impact on printing and film stock sales. This attempt to game the system—and the company’s lack of initiative once it did begin manufacturing digital cameras—has ultimately cost Kodak its entire business. Likewise, Blockbuster failed to keep up with technological and social changes. Instead of trying to find new ways to nip the Internet’s potential in the bud, the MPAA should be seeking new ways to adjust their business model and stop using loaded language like “piracy” when describing something that could potentially hurt their bottom line. The lost revenue and jobs that the film industry has attributed to “piracy” (which an MPAA-funded study estimates at $1.3 billion in the U.S.), to say nothing of the amount it has wasted lobbying, could be better spent investing in and working with the next big innovation. Wikipedia’s going dark for a day sent a far louder and clearer message than any pre-bought, technologically clueless senator ever could, and prompted public protest from people who had never before spoken up.

But, sadly, it’s clear that the MPAA is determined to dig in its heels. The organization has publicly threatened to stop backing politicians who don’t support SOPA and PIPA. Last Wednesday, the Supreme Court ruled 6-2 to allow the re-copyrighting of works that have fallen into the public domain. Of course, the decision has a huge impact on organizations and individuals that rely on non-copyrighted works—orchestras, educators, and film archivists to name a few—and threatens their survival. It seems counterintuitive to squeeze already financially precarious institutions for more money—at some point, they’ll become extinct and there’ll be no one else to charge for use. And such developments do not bode well for movies as we know them either. If films are only available through cumbersome, outdated means that demonstrate a fundamental distrust of consumers, the 90-minute narrative feature may go the way of the radio drama. By adhering to a hostile, extremist view that seeks to preserve a 15-year-old status quo—instead of looking 15 years ahead—the MPAA and its adherents are authoring their own demise financially and in public opinion.

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