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. iii 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 v Conclusion………………………………………………………………………... 199 Bibliography……………………………………………………………………………….. 202 Appendix 1: Transcription of Dean Garfield Phone Interview……………………………. 214 Appendix 2: Transcription of John Hurst Phone Interview……………………………….. 225 vi 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