Props for Jack Valenti

You know, I actually have to give Jack Valenti props over the recent screener brouhaha, which he discusses in an OpinionJournal commentary this morning (Sorry, Screeners). One of my biggest complaints about the MPAA has been that they've concentrated their anti-piracy efforts on the average consumer, the vast majority of whom are not engaged in nor have any desire to engage in piracy. At the same time, the MPAA was ignoring the piracy that was coming from within their own industry. For these reasons, I considered the MPAA to be a pack of hypocrites. Now, however, the recent screener ban has made me reconsider my opinion. This doesn't mean that I agree with the MPAA, just that I am no longer so sure they are inconsistent weasels. Weasels, yes, inconsistent, not so much anymore.

For the first time, the MPAA has acknowledged that the industry itself is a serious part of the piracy problem. Indeed, Jack himself has admitted that he violated the uses for which screeners were authorized:

Last year, the MPAA antipiracy department discovered that of the 68 titles sent out last year, 34 were pirated, and wound up mostly in Asia and Russia, where they were stamped into counterfeit DVDs and flung around the world. Recipients of screeners weren't engaged in piracy. But most of them, as I did, gave some movies to relatives and friends who in turn gave them to friends, who gave them to friends, and somewhere in that chain the pirates pounced.

Although this admission is a step in the right direction, it doesn't quite go far enough. Jack is unwilling, understandably, to label himself and his friends "pirates." However, in the past he has been quite willing to toss the "pirate" label around indiscriminately, falsely maligning people who were engaging in laudable fair use practices or, at worst, understandably minor infringements (equivalent to letting non-Academy members view a screener).

Even more interesting are the tactics the MPAA has adopted, after some negotiation, for dealing with piracy:

[Frank] Pierson [president of the Academy of Motion Picture Arts & Sciences] would send to each Academy member a document for signature. The member would receive screeners from the studios with the following provisions: (1) that the screeners, sent in VHS format only, would not leave the member's home, (2) that the member understands the studios reserve the right to identify/watermark the cassettes, (3) that the member is aware that if a screener is pirated and traced back to the member, he or she will be expelled from the Academy. Any member will confirm that this is a severe penalty.

Additionally, screeners will only be sent to Academy members, not other organizations that judge and make awards.

These actions are actually consistent with the MPAA's usual anti-piracy arguments. First, by having Academy members sign an actual piece of paper, we can see that the screeners are not really owned by the Academy members, but rather are licensed to them. Considering that the MPAA maintains that someone who actually purchases a DVD has no real right to the content other than through means the MPAA approves, requiring Academy members to actually acknowledge their limited rights is quite consistent.

By sending the screeners in VHS format only, the MPAA is acting consistent with their belief that digital copies are far worse for piracy than analog copies. Nevermind that you can use the VHS tape to generate a nearly pristine second generation digital copy (which can be reproduced flawlessly from then on), mandating VHS is consistent with previous MPAA arguments about the dangers of digital copies.

Not letting the copies leave the member's home is quite consistent with the MPAA's position on file sharing and the broadcast flag. For the broadcast flag to be at all effective, it is going to have to make it very difficult for people to share files with friends, essentially ensuring that copies of broadcasts never leave the house of the originator. Again, very consistent.

Watermarking is a security option that the MPAA has long been in favor of. Practical consideration, costs and some public outcry have been the only things preventing the MPAA for pushing harder for watermarks. Interestingly, it makes much more sense to watermark such a limited distribution of copies, where every recipient is known (and isn't paying for the copy), rather than have some sort of mandated global watermarking system.

Real consequences for industry insiders. Though the MPAA says that they have no intention of suing Academy members for failing to abide by these rules, merely expelling them, the MPAA isn't giving up the right to sue if they so choose. This is pretty consistent with the MPAA's anti-piracy positions, particularly assuming that Academy membership has a non-trivial value.

I think the screener ban is a bad idea (and I'm not so sure the studios didn't engineer it somewhat to favor their product at the expense of independents), but I do have to acknowledge that the MPAA is acting with more consistency than usual.