One more thing that Jack Valenti was wrong about

Hello, everyone! Sorry for the recent period of silence – I was in a cabin with no cell phone service and terrible Internet connection, so I decided to take a break from the web. It was nice; I got some good reading done (No Place to Hide by Glenn Greenwald, which I recommend to everyone). Anyways, I have returned today to discuss one of my favorite topics: wrong statements by Jack Valenti. But today, the wrongness is more subtle, so I’m giving it a more thorough discussion.

Jack was worried about the rising cost of making movies. In this article from 1998, he said: “Costs remain a great shaggy beast prowling the movie forest, a fiscal Godzilla slouching toward our future”. And in this article from 2004, he compared costs to a “tapeworm nibbling and chewing at the fiscal molecules of our business”. He was right to be worried; films these days seem to be really expensive! Just look at Wikipedia’s list of most expensive films. Even if we adjust for inflation, only 6 of the 50 most expensive films of all time were produced before the year 2000.

Why is the new stuff so costly? Given that technology is constantly improving, it should be getting cheaper to make movies, since the improved tech makes it faster and easier. Why do costs so rapidly outpace inflation? To me, this suggests inefficiency. And it’s an inefficiency that isn’t necessary.

Look again at the lists of most expensive movies. What I notice is that these costly films are all American. Seriously, all of them – correct me if I’m wrong, but I didn’t see a single non-American film on either of the all-time lists. But America is not the only country making movies; in fact, America doesn’t even make the most movies. India and Nigeria make more than America does. They seem to have plenty of movies to go around, but they don’t spend nearly as much on each individual movie as American companies do.

What is their secret to achieving greater efficiency? I believe that it is lack of copyright. Those countries lack the will and the power to enforce copyright the way America does. Economist’s article on Nigeria notes that it takes just 2 weeks for unofficial copies of a film – sold for profit, no less – to saturate the market. And India’s film industry has no qualms about copying other people’s films. They can’t enforce it, and they don’t want to, and the numbers suggest that they don’t need to.

This baffles the American copyright maximalists. Techdirt sums up their confusion nicely in this article, in which Mike Masnick notes that the U.S. Chamber of Commerce is calling for India to strengthen its copyrights to save their film industry. They say that India needs to “seize on this opportunity” to protect their “fledgling industry”, even though they already have the largest film industry in the world (which also happens to be one of the country’s largest employers). Given that Bollywood has come this far without “deference for protecting and enforcing creative rights”, why should they start now?

Alas, the maximalists do not understand this. They continue to call for greater control, even as that control stifles themselves. They seek to rule everything, and choke to death on their own red tape. Jack couldn’t see a solution to the “fiscal Godzilla” driving costs upward because he was unwilling to even consider the best solution: giving up control. His own drive to control his “property” was the very tapeworm eating his business.

I do not know how long American films can continue getting more expensive. They can’t go up forever, though I expect things will get worse before they get better. But I know that things could get a lot better, starting today, if they’d stop doing things the Valenti way and loosen up. And that is why I say once again that Jack Valenti was wrong, not for what he said this time, but for what he didn’t say. He could not see that the “great shaggy beast” preying on his beloved industry was, in fact, himself.

Addendum: Valenti, continuing to be wrong

First off: in my previous post, I thank Timothy Wu, Eric Brander, and Wikiquote for helping find quotes, but my thank-you note makes it sound like these people helped me personally. They did not; they provided the quotes from Valenti to the whole world, not just me. I alone am solely responsible for the quotes I picked out, but I still thank the previously mentioned folks for making the quotes easier to find.

Now, then. There were a few Valenti quotes that I wanted to include in my last post, but I felt like I couldn’t find a good place for them. So, they’re going here. Without further ado, more incorrect statements from Jack Valenti, starting with his thoughts on a fan edit of a film:

It’s like drawing a mustache on the Mona Lisa.
– from this New York Post article, 8 June 2001

Just so we’re clear here, Valenti was complaining about The Phantom Edit, a fan-made remix of The Phantom Menace that received praise from Star Wars fans, compliments from professional critics, and condoning from Lucas and Lucasfilm. And Valenti compared it to puerile vandalism. Then again, maybe he’s paying it a compliment; some people consider drawing a mustache on the Mona Lisa to be fine art

I found the most convincing part to be the working stiffs, the guys who have a modest home and kids who go to public schools. They make $75,000 to $100,000 a year. That’s not much to live on. I don’t have to tell you that.
– from this Entertainment Weekly Article, 18 April 2003

Here, Jack is talking about those anti-piracy PSAs that keep showing up before the film finally plays, telling us how copying is stealing and how if we don’t pay for movies, all the working class of Hollywood will go out of business. To put the numbers in perspective, the global average yearly income in 2010 (made by averaging the GNI per capita) is about $11,000 per year, according to this World Bank report. Here in the USA, our GNI per capita is currently about $53,000 per year, according to the latest data. For further reference, the official poverty line in the USA is $23,550 and under for a family of four. And here’s Jack, trying to stir our sympathies for people who earn a hundred grand a year in show business. Won’t somebody think of the poor little rich people?

Of course, before he retired, Jack’s salary was $1.35 million per year, so maybe he has a different perspective on money than the rest of us.

What needs to happen is we all sit down together in good-faith negotiations and come to some conclusions on how we can construct a broadcast flag (for keeping digital TV content off the Internet), on how we plug the analog hole (allowing people to record digital content off older televisions and other devices), and how we deal with the persistent and devilish problem of peer-to-peer.

There are more than nine and a half million broadband subscribers now. Once those large pipes and high-speed access subscribers begin to increase, we can be terrorized by what’s going on.
– from this interview with John Borland, 4 April 2002 (archived on 3 June 2002)

In that interview, Valenti is speaking in favor of the proposed CBDTPA, which would have mandated the inclusion of so-called “trusted computing” hardware in all digital devices (called the “Fritz chip” after the bill’s sponsor, Ernest “Fritz” Hollings). As usual, Jack had no idea how technology actually works (and neither did Hollings). “Trusted computing” leads to some terrible consequences. Richard Stallman, who does know how technology works, calls it “treacherous computing”, describing it as a “plan to take away our freedom” that would create a “paradise for corruption”. And here’s Jack, saying that we need to have “good-faith negotiations” to figure out how to implement this. But it gets better; not only is the plan evil, it’s also stupid. Here’s Edward Felten’s take on the Fritz chip:

This was the digital traffic cop that would sit inside digital media devices and prevent them from doing bad stuff. But it’s worth noting that the law would have, the bill would have included the Fritz chip in every digital media device that was built in the United States. And there are a great many diverse digital media devices. Here are some examples. Big Mouth Billy Bass is a digital media device, because he plays music that’s recorded in digital form. Also the electronic whoopie cushion, as advertised on the Howard Stern show, plays recorded digital content which happens to be copyrighted. Think about that. Any my personal favorite the Kung Fu Fighting Hamster. I actually have him here to give you a performance. That’s copyrighted audio. Not to mention other devices like digital hearing aids, which would have to vet the sounds that came into a listener’s ear to make sure they weren’t copyrighted, and digital sewing machines which would have to vet the patterns of stitchery that were to be put onto cloth to make sure they weren’t copyrighted. Because in fact, embroidery patterns are copyrightable, and Senator Hollings brought to Capitol Hill to testify a person who makes their living by creating embroidery patterns.

So that was problem number one, the Fritz chip would have be built into nearly everything, including devices where it clearly wasn’t needed. The bigger problem was problem number two, how was this thing going to work? What technology could you design which would actually prevent bad things from happening? Well here’s what the Hollings bill said about this: It said that the, whatever the Fritz chip, whatever the design of the Fritz chip was, it should be reliable, renewable, resistant to attack, readily implemented, modular, applicable in multiple technology platforms, extensible, upgradable, and not cost prohibitive. Which is all well and good as a goal, but again the question, how is this thing going to work? And the truth is that nobody who knew much of anything about technology had any idea of how you could possibly do such a thing. And it was, in testimony I submitted to the Senate I likened the standardization of the Fritz chip to the creation of a standard system for teleportation. And it just wouldn’t do for the Senate to pass a bill that said we will make a standard for teleportation and we’ll do it within eighteen months. After that we’ll teleport all over the place.

And the fundamental reason why nobody knew how to build a Fritz chip is because of this dilemma: Any Fritz chip you built, had to either to allow universal computers or ban them. If you allow universal computers then you allow consumers to do absolutely everything you’re afraid they’ll do. And then what’s the point? Or if you ban them then you’re throwing out the baby with the bathwater. And we no longer have universal computers, we no longer have a universal Internet and the entire computer revolution goes out the window. Much too high a price to pay to protect ourselves against copyright infringement.
– from this talk at Princeton University, 12 October 2004

The Fritz chip: designed to take away freedom, inherently impossible to implement, and endorsed by Jack Valenti. After all, we have to do something about all those devilish college kids terrorizing the MPAA with their P2P software. And when John Borland asked Jack for a response to those who felt that “the Hollings bill would take away some of their rights”, Jack’s response was: “What rights are we talking about? I’m not trying to be glib.” Let me give a non-glib answer: the right to control our own computers and the right to securely communicate. You can’t stop P2P without killing either of those.

But Valenti doesn’t much care about the right to control your own computer:

I do not believe that you have the right to override an encryption. Because if you have the right to do it, everybody can do it. For whatever benign reason you have, somebody else has got one even more benign. But once you let one person deal in a digital copy — and I don’t have to tell you; you know far better than I that, unlike in analog, the ten thousandth copy is as pure as the original — it is a big problem. So once you let the barriers down for your perfectly sensible reason, you gotta let it down for everybody…
Let me put it in my simple terms. If you take something that doesn’t belong to you, that’s wrong. Number two, if you design your own machine, you can’t fuss at people, because you’re one of just a few. How many Linux users are there?
– from this interview with Keith Winstein

Keith Winstein is arguing for the right of Linux users to build and use computers that can get past access control measures without having to obtain a “license”. But Jack insists that Keith and his fellow Linux users (like me) do not have such a right. Why? Because if they did have such a right, then they could easily decrypt their DVDs and record broadcasts, and they’d have lovely, shareable digital files, which are “a big problem” for Mr. Valenti because they’re too easy to share. And after all, to share those files would be “to take something that belongs to somebody else”, so we just have to prevent everyone from overriding encryption, don’t you see?

And then there’s the right to securely communicate:

My second recommendation is to resist those who are clamoring for a copyright exemption for on-line service providers. On-line service providers and others have a key role to play in freeing cyberspace of the taint of copyright lawlessness. Accountability for copyright violations committed by users is as essential for advancing this indispensable goal.

Who is responsible if a valuable copyrighted work is downloaded from a provider, and then copied on a digital video machine from which thousands of copies can be made, the last copy as pure and pristine as the first? And if no one can be held responsible, then who and what is to prevent the flood that will surely follow? This is a loophole larger than a parade of eight-wheelers through which a dam-busting avalanche of violations can rupture the purpose of your bill every day.

Although there has been much said about the dire consequences of applying existing standards of copyright liability to on-line service providers, in truth, there is as yet no evidence of any disfunction [sic] in the statute that requires fixing. No court has found an on-line service provider to be guilty of infringement except where the provider participated in infringing activity or was actually aware of infringing activity carried out by a user of the on-line service. Despite what you have heard, there is no imminent threat of debilitating damages against “innocent” on-line service providers.
– from testimony to the House of Representatives, 7 February 1996 (archived on 26 February 2005)

Well, I’m all for freeing cyberspace from the “taint” of “lawlessness”. Let me quote a successful European politician:

One of the primary demands of the Pirate Party has been that the same laws that apply offline should also apply online. I think it’s an entirely reasonable thing to demand; the Internet is not a special case, but part of reality. The problems appear when an obsolete but powerful industry realizes that this just and equal application of laws means they can’t enforce a distribution monopoly any longer.

The politician was Rick Falkvinge, describing here why we should insist on having the same legal protections online as offline, including privacy, postal secret, and due process. Rick goes on to describe how media companies have pressured on-line service providers to help them wiretap and censor online communication, and points out that we wouldn’t let this kind of thing happen to postal communications, so why are we putting up with it happening online?

And as for there being “no imminent threat of debilitating damages”, we have good evidence that there is such a threat. Innocent people are getting hurt, and more will get hurt if people keep favoring copyright over other rights. Jack Valenti should have known this and cared about this, but he chose not to.

But I shouldn’t be surprised that he’d do something like that. After all, he was the kind of guy who said things like this:

I think lobbying is really an honest profession. Lobbying means trying to persuade Congress to accept your point of view. Sometimes you can give them a lot of facts they didn’t have before.
– from an interview with Derek Slater

An honest profession, you say? Oh, Jack. No wonder you get everything so wrong.

Jack Valenti is wrong about everything

(I’d like to thank Timothy Wu, Eric Brander, and everyone at Wikiquote for helping me pick out quotes for this article)

I have previously said some mean things about Jack Valenti, late head of the MPAA. I am not here to unsay these things, because Jack deserves to have some harsh words thrown at him. After all, he’s the guy who famously compared the VCR to a serial rapist and killer:

We are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. And it is like a great tidal wave just off the shore. This video cassette recorder and the blank tape threaten profoundly the life-sustaining protection, I guess you would call it, on which copyright owners depend, on which film people depend, on which television people depend and it is called copyright…

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.
– from these hearings discussing home recording of copyrighted works, given before the House of Representatives, 1982

“Mr. Chairman, if we don’t prevent people from recording shows from off the air, they will rape our profit margins and murder our business model!”

But where there’s smoke, there’s fire, and someone capable of saying something that wrong in front of Congress has almost certainly said all kinds of other wrong things. So let’s have a look at the other wrong things that Jack Valenti has said.

There is no fair use to take something that doesn’t belong to you. That’s not fair use…Now, fair use is not in the law.
– from this interview with Peter Rojas
What is fair use? Fair use is not a law. There’s nothing in law.
– from this interview with Derek Slater

Let me just remind everyone that fair use is defined in law and it’s considered very important by many people. Jack himself displays some knowledge of the reality of fair use later on in both interviews, but it’s clear that he doesn’t like it. Now, it so happens that I don’t like “fair use” much, either. My problem with fair use is that it’s too weak. In the words of Larry Lessig, “fair use in America simply means the right to hire a lawyer to defend your right to create”. That’s not enough for me. But for Jack, it’s just too much that fair use exists at all, and if he had his way, he’d do away with it.

Copyright term extension has a simple but compelling enticement: it is very much in America’s economic interests.
– from this testimony before the 104th Congress

Michele Boldrin and David K. Levine disagree, and they’ve made a thorough case here. They’re not the only ones; Rufus Pollock has made a case that optimal copyright terms ought to reduce over time, and that the current optimum is probably 15 years (I still think the optimal term is zero, but I’m an edge case). But in the face of a long tradition counting such members as Thomas Macaulay and Thomas Jefferson and now bolstered by respectable academics and economists, Valenti dismisses them all and declares that his view – the opposing view – is “simple but compelling”. You’d like to think so, wouldn’t you, Jack?

Whatever work is not owned is a work that no one protects and preserve. The quality of the print is soon degraded. There is no one who will invest the funds for enhancement because there is no longer an incentive to rehabilitate and preserve something that anyone can offer for sale. A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. How does the consumer benefit from the steady decline of a film’s quality?
– from the same testimony before the 104th Congress

Evidently, Jack never heard of Project Gutenberg, or the Internet Archive, or any number of people who happily take upon themselves the task of preserving and sharing knowledge and culture, especially when that culture is in the so-called “public domain”. He talks about information as though it were a physical thing that could wear out, ignoring the fact that information is naturally renewable, and that culture grows in value the more it is shared. A public domain work is “owned” by everyone, meaning that everyone has the opportunity to protect, preserve, rehabilitate, and enhance it. If you want a really good study of how the “public domain” helps make works available when copyright fails, look no further than the analysis of Paul Heald, who wrote a couple of papers showing how old books and music just tend to disappear until their copyright expires, at which point they come surging back to life (Christopher Sprigman provides a good summary). In short, Jack is wrong, and we have the data to prove it.

But you’ve already got a DVD. It lasts forever. It never wears out. In the digital world, we don’t need back-ups, because a digital copy never wears out. It is timeless.
– from the interview with Derek Slater

Here, Jack is failing to understand the utility of digital information. No copy lasts forever, and digital copies are no exception (bit rot: if you’ve been waiting to copy that floppy, it might already be too late). What makes digital special is how easy it is to make copies. A digital file is like an amoeba; by itself it might die easily, but it can reproduce at a fantastic rate, and even if they all start dying, you can make new ones as long as you have one left. Libraries have clued in to this and have organized the LOCKSS Program: Lots Of Copies Keep Stuff Safe. Back-ups are what give digital copies their timeless quality. Would you condemn the digital world to die just to prevent copies, Mr. Valenti?

I have said, technology is what causes the problem, and technology will be the salvation of the problem. I really do believe we can stuff enough algorithms in a movie that only the dedicated hackers can spend the time and effort to try to plumb through those 1,000 algorithms to try to find a way to beat it. In time, we’ll be able to do this, because I have great faith in the technological genius that’s out there…
It may be possible to so infect a movie with some kind of circuitry that allows people to copy to their heart’s content, but the copied result would come out with decayed fidelity with respect to sound and color. Another would be to have some kind of design in a movie that would say, ‘copy never,’ ‘copy once.’
– from the interview with Peter Rojas

Ah, DRM. Good folks like Mike Masnick have worked very hard to explain why DRM is bad from a business point of view. But since Valenti is talking about technology, let’s take a more technical point of view. There’s one big technical problem with DRM: it’s impossible. If you’ve ever wondered how hackers keep beating DRM systems so quickly, here’s Cory Doctorow to explain:

In DRM, the attacker is *also the recipient*. It’s not Alice and Bob and Carol, it’s just Alice and Bob. Alice sells Bob a DVD. She sells Bob a DVD player. The DVD has a movie on it — say, Pirates of the Caribbean — and it’s enciphered with an algorithm called CSS — Content Scrambling System. The DVD player has a CSS un-scrambler.

Now, let’s take stock of what’s a secret here: the cipher is well-known. The ciphertext is most assuredly in enemy hands, arrr. So what? As long as the key is secret from the attacker, we’re golden.

But there’s the rub. Alice wants Bob to buy Pirates of the Caribbean from her. Bob will only buy Pirates of the Caribbean if he can descramble the CSS-encrypted VOB — video object — on his DVD player. Otherwise, the disc is only useful to Bob as a drinks-coaster. So Alice has to provide Bob — the attacker — with the key, the cipher and the ciphertext.

Hilarity ensues.
– from this talk

The talk gives some more background on crypto theory, so do read the original if you’ve still got questions. But the important info is all there: in order to be able to watch the movie, the customer has to able to unravel those “1,000 algorithms” on the DVD, and if they can unravel those algorithms to watch the DVD, they can unravel them to copy and share it as much as they please. And then there’s things like the analog hole, and network effects (if just one person cracks the DRM, they can share their liberated info with the whole world). In short, Valenti’s hope of technical “salvation” is a pipe dream.

Now, back to Valenti:

If Congress lets cable systems retransmit local broadcast stations it will not only be magnifying and sanctifying a terrible injustice, but it will have created a huge parasite in the marketplace, feeding and fattening itself off of local television stations and copyright owners of copyrighted materials. We do not like it because we think it would be wrong and unfair.
– from testimony given before Congress in 1972, quoted by Edward Felten

Let me get this straight: if you broadcast something on the open airwaves for everyone to see, and someone receives it and copies it and retransmits it, that’s a “terrible injustice”?

No. No way. A terrible injustice is when you can’t feed your family because you used up your life savings paying off the local protection racket. If you’re going to take your signals and broadcast them for all the world, you don’t get to complain when someone else records them and uses them. This is the same crap that he tried to pull on the VCR, but the difference is that when he tried this argument on cable, people bought it, and cable was forced to pay retransmission fees (Timothy Wu provides historical background and analysis in this paper).

Regarding the VCR, I like this statement from Murray Rothbard:

If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it.
– from this call for papers

I apply that same logic to cables, and say that if a cable company owns a set of cables and a good TV antenna, they can record and retransmit whatever they like, and the TV and movie people can just sit on their hands and deal with it. But Valenti was never content to do that. He knew how to get our government to give him his way, and he served the MPAA well, much to the detriment of the rest of us.

Now, if I may undercut myself a little, I don’t actually disagree with everything that Jack Valenti said. He also said a lot of things against censorship. He advocated the rating system we’re all familiar with as a way to communicate to people what was in a film, so they could make their own decisions. I like that, and I’m glad he did that. He routinely said that he wanted parents to be in charge of what their kids saw, and I thank him for saying so, and for working to make it so.

But to end this on a high (low) note, let me quote Jack saying one more wrong thing:

I sleep each night a little better, a little more confidently, because Lyndon Johnson is my president. For I know he lives and thinks and works to make sure that for all America and indeed, the growing body of the free world, the morning shall always come.
– from an address to the Advertising Federation of America, 28 June 1965

Oh, don’t make me laugh.

The Revenge of Jack Valenti

Techdirt reports that the Supreme Court has just outlawed Aereo.

This is bad, folks. This is really bad.

If you’re wondering why this is bad news, I recommend you head back to Techdirt and check out some of their other posts, including these two:
Why Do So Many People Describe Aereo ‘Complying’ With Copyright Law As The Company ‘Circumventing’ Copyright Law?
Broadcasters’ Lawyer Lays Out Every Bogus Trope Possible Against Aereo

As far as I can tell, this decision rejects a lot of well-established precedent (making a mockery of the so-called “rule of law”) and ignores a lot of technical details (details that the consumer is not allowed to ignore; remember that breaking DRM is illegal even if the DRM is preventing you from doing perfectly legal things) in favor of handing more power over to the “content creators”, meaning the publishing and broadcasting companies. Now, ignoring the letter of the law is not something I necessarily oppose; the “rule of law” is not a good concept, and there are times when you should set aside the letter of the law to better fulfill the spirit. But consider the spirit that the Supreme Court has established here. It appears to me to be a spirit of control, dictating who can record and view the broadcast companies’ precious signals. It looks to me like a spirit of assumption of guilt. Consider this excerpt from the official decision; after the court notes the technical differences between Aereo and cable, it dismisses them:

But this difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into “a copy shop that provides its patrons with a library card.”

In other words, because Aereo feels like cable, it must be cable.

If that still doesn’t strike you as awful, consider this hypothetical. Someone makes a car that looks a lot like a plane, and designs the controls and driver’s seat such that driving the car feels a lot like flying a plane. But it can’t fly; in fact, its “wings” are spoilers that push the car into the ground, and its engine is within street-legal limits so it could never provide enough thrust to get off the ground, and so on. Of course, the reason the car looks and feels like a plan is because that’s its selling point – the car maker advertises the special car as “feeling just like flying!” The FAA catches wind of this, takes a look at the car, and says: “This is a plane. You need a pilot’s license to operate it.” “But wait!”, the maker protests. “It can’t fly at all! It’s within legal limits and safe for street driving, and I can prove it!” “Doesn’t matter”, the FAA replies. “It looks like a plane and feels like a plane, so it’s a plane.” And so the special car never takes off (pun intended), because it’s useless as a plane but you have to have a pilot’s license to drive it.

This is what the Supremes have done to Aereo. They have ruled that perception trumps reality. Sorry, Aereo, but you make the cable companies feel bad, so you have to go.

But this is nothing new in IP law. Techdirt has another good post on this subject: The Bizarro, Fact-free World Of Copyright Policymaking. The crux of that post is that when it comes to “intellectual property” law, evidence doesn’t seem to matter at all. Everything is based around perception. If sharing a file feels like theft, then theft it must be, even if this defies sound information theory and negates the concept of freedom of expression.

Jack Valenti and his co-conspirators failed to kill the VCR, but they never give up in their fight for control. And why should they give up? By the time the Betamax came around, they had already captured the cable companies. And now, though Jack is dead, his spirit lives on, and his successors have captured Aereo, and they’re probably going to kill it, because Aereo dared to offer a service that they didn’t control.

Don’t let the hype fool you, folks. We may have the freedom to complain, but we don’t live in a free country. The elites make the rules for their own benefit, and Valenti cackles from the grave.