The Motion Picture Association of America's Patrolling of Internet Piracy in America, 1996-2008 By

242 Pages·2011·1.09 MB·English

Content Control: The Motion Picture Association of America’s Patrolling of
Internet Piracy in America, 1996-2008

By

Matthew A. Cohen

Submitted to the graduate degree program in Film and Media Studies and the Graduate Faculty of the University of
Kansas in partial fulfillment of the requirements for the degree of Doctor of Philosophy.

Chairperson: Tamara Falicov

Catherine Preston

Chuck Berg

Robert Hurst

Nancy Baym

Kembrew McLeod

Date Defended: August 25, 2011

Copyright 2011
Matthew A. Cohen
ACCEPTANCE PAGE

The Dissertation Committee for Matthew A. Cohen
certifies that this is the approved version of the following dissertation:

Content Control: The Motion Picture Association of America’s Patrolling of
Internet Piracy in America, 1996-2008

Chairperson: Tamara Falicov

Date approved:
Abstract

This historical and political economic investigation aims to illustrate the ways in which
the Motion Picture Association of America radically revised their methods of patrolling and
fighting film piracy from 1996-2008. Overall, entertainment companies discovered the World
Wide Web to be a powerful distribution outlet for cultural works, but were suspicious that the
Internet was a Wild West frontier requiring regulation. The entertainment industry’s guiding
belief in regulation and strong protection were prompted by convictions that once the copyright
industries lose control, companies quickly submerge like floundering ships. Guided by fears
regarding film piracy, the MPAA instituted a sophisticated and seemingly impenetrable “trusted
system” to secure its cultural products online by crafting relationships and interlinking the
technological, legal, institutional, and rhetorical in order to carefully direct consumer activity
according to particular agendas. The system created a scenario in which legislators and courts of
law consented to play a supportive role with privately organized arrangements professing to
serve the public interest, but the arrangements were not designed for those ends. Additionally,
as cultural products became digitized consumers experienced a paradigm shift that challenged
the concept of property altogether. In the digital world the Internet gives a consumer access to,
rather than ownership of, cultural products in cyberspace. The technology granting consumers,
on impulse, access to enormous amounts of music and films has been called, among many
things, the “celestial jukebox.” Regardless of what the technology is called, behind the eloquent
veneer is the case in point of a systematic corrosion of consumer rights that, in the end, results
in an unfair exchange between the content producers and consumers. What is the relationship of
the MPAA to current piracy practices in America? How will Hollywood’s enormous economic
investment in content control affect future film distribution, exhibition, and consumer
reception? Through historical analysis regarding the MPAA’s campaign against film piracy
along with interviews from key media industry personnel and the pirate underground, this
contemporary illustration depicts how the MPAA secures its content for Internet distribution,
and defines and criticizes the legal and technological controls that collide with consumer
freedoms.

ii
Acknowledgements

I am thankful for the assistance from many people, including my dissertation chair, Tamara,
Falicov, and the other members of my committee including Professor Chuck Berg, Professor Cathy
Preston, Professor Nancy Baym, Professor Robert Hurst and an especially big thanks to Professor
Kembrew McLeod at the University of Iowa. Other people that I appreciate and am most grateful
for their help include Lisa Angelella, whose hard work and dedication is an example to all. Thanks
also to Chris Groves and R. A.H. Thank you to the University of Iowa and their libraries. A special
thanks to my Mom and family for their support. Lastly, I especially want to acknowledge the
patience and support from my wife, Mary through the entire process of writing this document.

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Table of Contents

Abstract……………………………………………………………………..………………ii
Acknowledgements…………………………………………………………….…………..iii
Chapter One: Introduction
Introduction…………………………………………………................................. 1
Purpose……………………………………………………………………............ 2
You Can’t Protect What You Don’t Own………………………………………... 4
Research Methods…………………………………………………………........... 8
Co-Existing Trusted Systems…………………………………………………….. 16
Interview Sample…………………………………………………………………. 18
Piracy…………………………………………………………………………….. 19
Legislation……………………………………………………………………….. 24
Nuances of the Debate……………………………………………………............. 25
Literature Review…………………………………………………………............ 28
Overview…………………………………………………………………………. 44
Chapter Two: Overview and Development of the Motion Picture Association of America
Introduction……………………………………………………………………… 47
Characterization of the MPAA…………………………………………………… 48
MPAA and South Korea’s Screen Quota…………………………………............ 50
Hollywood’s Ascent Into International Markets…………………………………. 54
Historical Overview of the MPAA……………………………………………… 57
MPAA’s Relationship with U.S. Federal Government……………………………66
MPAA’s Public Stances on Piracy……………………………………………….. 68
Conclusion……………………………………………………………………….. 71
Chapter Three: Putting Names to the Trusted System
Introduction……………………………………………………………………… 73
Dean Garfield…………………………………………………………………….. 79
“Who Makes Movies?” Campaign………………………………………………. 86
DVD Copy Control Association (DVD-CCA) and the Content Protection
Technical Working Group (CPTWG)…………………………………... 94

iv
James Burger, IP Attorney, Charter Member of the CPTWG and Secure Digital Music
Initiative (SDMI) Coalitions……………………………………………. 100

Digital Cinema Initiative (DCI), John Hurst, and Cinecert………………............. 107

J.D. Lasica’s “Darknet” and Alexander Galloways’s “Networks”………………. 113

Simon Petersen…………………………………………………………………… 118

Dan Mickell and Movie Land……………………………………….…………… 124

Conclusion………………………………………………………………………...130
Chapter Four: The Significance of the Digital Millennium Copyright Act and its Deliberations, Ramifications, and
Exemptions
Introduction………………………………………………………..………………134
Linux Protests…………………………………………………………………….. 137
EFF’s Preliminary Lobbying Efforts with DVD Encryption Scheme……………. 139
US vs. Elcomsoft-Skylarov………………………………………………………..142
RIAA vs. Felten……………………………………………………………………146
DVD XCopy vs. Hollywood………………………………………………………152
DVD XCopy’s Inability to Decipher Rental Discs………………………………. 153
Copyright Fraud…………………………………………………………………... 155
MPAA vs. The People……………………………………………………..............161
MGM vs. Grokster………………………………………………………………... 163
Copyright Statutory Damages……………………………………………………. 165
RealNetworks vs. DVD-CCA (aka RealDVD Case)…………………………….. 167
End User License Agreements (EULAs), Terms of Service (TOS), Internet Click-
Wrap Agreements………………………………………………………. 170

DMCA 12-Year Retrospective: Exemptions…………………………………….. 173
Conclusion………………………………………………………………………... 177
Chapter Five: Towards a Better Understanding of the Trusted System Framework and Copyright Control
Summary………………………………………………………………………….. 181
Interpretation of Findings………………………………………………………… 187
Study Limitations…………………………………………………………............ 194
Suggestions For Future Research………………………………………………… 195
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Conclusion………………………………………………………………………... 199
Bibliography……………………………………………………………………………….. 202
Appendix 1: Transcription of Dean Garfield Phone Interview……………………………. 214
Appendix 2: Transcription of John Hurst Phone Interview……………………………….. 225

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1

Content Control: The Motion Picture Association of America’s Patrolling of Internet
Piracy in America, 1996-2008

Introduction

The number of film piracy cases grew at a breakneck pace in the early 1970s because of
an important breakthrough permitting movies to become tangible consumer goods. The
appearance of the videocassette recorder (VCR) was significant to consumers in countless ways.
While the typical video fan used the technology to collect, archive, share, and learn from an
enormous archive of film and video, VCRs also permitted consumers to shift distribution control
away from the transnational multimedia conglomerates. Additional technological advances
permitted consumers time-shifting recording and content sharing, eventually allowing the rapid
and inexpensive reproduction of film products and thereby placing the consumer within the
framework of production and distribution.1 Video Cassette Recorders created huge profits for the
Hollywood major studios, although initially the studios contested the arrival of the technology in
the courts and were slow to respond in creating an ancillary market through the sale of
videocassettes.2 On January 17, 1984, the U.S. Supreme Court ruled 5-4 that the taping of a
television program, including movies broadcast on television, was legal for home viewing,
rejecting the assertion by the entertainment industry that viewers who recorded programs were
stealing copyrighted product.

1
Shujen Wang, Framing Piracy: Globalization and Film Distribution in Greater China (Oxford:
Rowman & Littlefield, 2003).

2
Kerry Segrave, Piracy in the Motion Picture Industry (Jefferson, N.C.: McFarland & Co., 2003), 222.
2

VCRs also allowed video enthusiasts to share content and duplicate and distribute media
on a mass scale.3 By 1985, the Film Security Office (FSO), an office established by MPAA
president Jack Valenti to combat piracy on behalf of its member companies, Columbia, Warner
Bros., United Artists, Paramount, Fox, Universal, Allied Artists, and Avco Embassy, estimated
the worldwide loss of revenue to the majors due to film piracy was $1 billion.4 By 1988, the
total number of piracy investigations equaled 10,500. Countries with the largest number of

illegal tapes included Japan, Italy, the United States, West Germany, Brazil, Taiwan, and the
Philippines. In the United States that same year, Valenti, FSO president Richard Bloeser, and
MPAA North American anti-piracy director Mark Kalmonsohn discussed anti-piracy
enforcement measures with FBI head William Sessions. A decade later (1998), during the initial
phases of consumer broadband penetration, public service announcements crafted by the MPAA
appeared in 33 New York City movie houses asking the audience to collaborate and report
offenders to the appropriate theater authorities by looking for individuals operating illegal
camcorders that were recording films.

Purpose

This dissertation aims to illustrate the ways in which the Motion Picture Association of
America radically revised their methods of patrolling and fighting film piracy because of the
digitization of media, digitization that was marshaled in by two prevailing developments. The
invention of the digital videodisc and subsequent introduction to the consumer market created

3
Wang, Framing Piracy.
4
Segrave, Piracy in the Motion Picture Industry.
3

marginal revenues for Hollywood; although because of its superior resolution (720 lines versus
videotape at 420) and high capacity (a dual layer DVD can hold 8.5 gb of data), it quickly
became an extremely profitable media for the studios. Similarly, in 1996 neo-liberalism policies
based on deregulation helped the Internet expand to thousands of customers because telecoms
began offering bundled services that were previously prohibited by Federal Communications
Commission (FCC) rules.

In this investigation, I argue that the DMCA (Digital Millennium Copyright Act), a severe
and reckless piece of legislation that the MPAA (Motion Picture Association of America) and
the RIAA (Recording Industry Association of America) lobbied Congress to pass in 1998,
permitted a whole host of new legal and technological controls that produced a collision with
freedom of expression. By freedom of expression, I mean to say that prior to the passage of the
DMCA, individuals generally experienced fewer conflicts over the copyright industries’
protection of works and the artistic creation of new works influenced by, and based on, previous
works. The DMCA made it a civil and criminal act to circumvent a technological measure that
effectively controls access to a protected work under this act. Additionally, the DMCA made the
manufacture, import, offer to the public, the provision or otherwise participation in any
technology, product, service, device, etc an unlawful offense. Ironically, just three short years
after the passage of the DMCA, Apple Computer released a new advertisement campaign to sell
its new and improved iMac home computers: Apple’s Rip, Mix, Burn promotion celebrated new
consumer freedoms with the pairing of a cd-rw drive and an Apple personal computer. Shortly
thereafter, the public began ripping mp3’s to rewritable compact discs and this eventually
became a problem for the RIAA. Then, in what can only be deemed paradoxical, in 2003,