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Re: [dvd-discuss] Ramblings on DVDCCA appeal from M.Rolenz

"It's deja vu all over again" (Y.Berra?)...this is a nice summary. Post it 
to TWIKI at openlaw if you can. It's something that should not be lost in 
all the traffic. The DVD is yet another attempt for the Studios to get 
monopolistic control. 

As John Z (.002) keeps pointing out for the public digital is only a 
superior format if they get access to it in digital form.

WRT to abandoning DVD format, the studios cried "boo hoo"....and Kaplin 
the Grinch cried "I must stop DVD Hacking from coming" and then he got an 
awful Grinchy idea.....functional speech.....that aside....the studios 
claims of being out millions of dollars if they have to abandon DVDs pales 
in comparison to the budgets of some of their colossal turkeys of the last 
few years (Waterworld $200M?)

John Schulien <jms@uic.edu>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
01/07/02 08:09 PM
Please respond to dvd-discuss

        To:     dvd-discuss@eon.law.harvard.edu
        Subject:        [dvd-discuss] Ramblings on DVDCCA appeal from M.Rolenz

Digital formats are superior to analog formats. If we can't safely
release our works
in digital format, then the lawmakers have failed to promote progress.

To address this, one must consider the historical background of the
movie industry.

In the 1950s, the movie studios considered television to be
the mortal enemy of their industry.  They had good reason to
be afraid, because  theatre attendance had been falling
dramatically as television took hold:

Average weekly attendance of U.S. film theatres
1945     85 million
1946     95 million
1947     90 million
1948     90 million
1949     70 million
1950     60 million
1951     54 million
1952     45 million

(Source:  "Technicolor Movies", Richard Haines, McFarland
& Co, 1993)

To the studios, the problem was that every person
watching TV was someone who wasn't in a theatre.
The major studios responded to the television threat
with a standing agreement amongst themselves not to
license movies to television stations.

This article describes how this monopoly was broken:


| "... a few almost A pictures and a lot of B's and C's had
| already been sold to television but the major studios were
| holding out and had an agreement among themselves not
| to sell. However, there was a package of films which
| became available from the Bank of America. These were
| pictures  which Bof A had financed. When they didn't make
| back their costs, Bof A repossessed them. It included a
| number of films which had been released by RKO (like
| well as other recent titles with major stars. General Tire
| bought the package to show as a summer replacement for
| their plays and when they drew much higher ratings,
| General tire became more anxious than ever to get major
| films.

| "Hughes was desperate to sell RKO as it was losing a lot
| of money under his management. General Tire bought it
| and merged with it, forming RKO General.  They started
| the "Million Dollar Movie" running the same film every
| night and four times on weekends(the first title to run was
| KINGKONG, followed by the Astaire-Rogers films. )

| "Once the RKO backlog started airing, the other studios
| lost little time in selling their films too. RKO General bought
| packages of Warner and Columbia films for "The Million
| Dollar Movie."  ...

A similar situation played itself out in the 1970s.  With the
introduction of the Betamax recorder, the major studios
once again, regarding it as their mortal enemy, swore that
they would never, ever sell copies of hollywood movies to
the public on videotape.  However, over the years, lots
and lots of 16mm film prints had been struck of
hollywood movies, and distributed to television stations.
Over the years, many of these television prints had found
their way into private hands, either picked out of trash
bins, or  purchased in surplus auctions, or sold as
television station assets.

Not surprisingly, some amateur video enthusiasts with
video cameras and recorders crossed paths with film
collectors, and the result were the first -- and completely
unauthorized -- videotapes of hollywood movies.

The movie industry went berzerk, brought in the
FBI, and tried to jam the genie back into the bottle --
almost literally.  The studios took the legal position that
private ownership of 16mm and 35mm film prints was
illegal, and dispatched lawyers after videotape pirates
and film collectors with equal intensity. Many
innocent collectors lost their collections, and a rift was
formed between film collectors and the movie studios
that has not healed to this day.

In the end, the studios claimed that only they had the
rights to own 16mm movie prints, until one of the
collector defendants was able to produce receipt
after receipt from the television studios showing that
they had licensed the film prints and broadcast
rights "for the life of the print".  A judge ruled that:

1)  Those terms actually constituted a sale,
2)  Those prints were subject to first sale

Thus,  the right of the public to own movie prints
was established.

Faced with the situation of being unable to remove
film prints of their movies from public circulation,
and realizing that there was a tremendous demand
for videotapes of hollywood movies, the studios
began releasing their own product on videotape,
saving the industry in the process.

So, to recap ...

In the 1950s, the movie studios gave up profit in
favor of control -- they wanted a monopoly
situation where you could only see movies in
theatres, not on television.  Once one studio broke
the monopoly, the rest abandoned the strategy,
and gave the public what they wanted -- free
movies on broadcast television.

In the 1970s, the movie studios gave up profit in
favor of control -- they wanted a monopoly
situation where they could prevent private
ownership of their works, thus maximizing their
rental value to television stations. Once they
realized that the monopoly was unattainable,
they abandoned the strategy and gave the public
what they wanted -- privately owned copies of
movies for home performance.

In the 1990s, the movie studios tried to have
it both ways -- they wanted to sell DVDs to
the public, but at the same time they wanted
to ensure that they had the ability to approve
what features would be allowed on players,
and it worked for a while -- no one questioned
why DVD players had no digital outputs, and
only a few people had problems with region

Of course, now we know that this wasn't because
the technology wasn't available, it was because
the technology was being secretly suppressed.

Digital formats are superior to analog formats. If we can't safely
release our works
in digital format, then the lawmakers have failed to promote progress.


If we aren't allowed to rigidly control what technologies
the public is allowed to own, in order to ensure that the
public lack the ability to make full use of their DVDs,
then the lawmakers have failed to promote progress.

It's a heck of a stretch to redefine the suppression of
technology and works, as "progress."  The "progress"
envisioned by the drafters of the Constitution is exactly
the opposite -- the widespread availability of technology
(through patent disclosure), and the widespread availability
of creative works (through copyright.)  The promotion
of this twisted interpretation of the concept of progress
is not authorized by the Constitution.

The decision to release movies in digital format is
entirely a business decision, just like the decision to
not permit the broadcast of movies on television, and the
decision to not permit the sale of movies on videotape were
business decisions.

The movie industry is perfectly free to discontinue
the DVD format, and revert to videotape distribution
only.   However, I've seen no signs that the movie
industry has any intention of switching from cheaply
produced, widely accepted DVDs to obsolete

If the movie studios really believe  that it is no
longer possible to "safely" release works in digital
format,  then they should put their money where
their mouth is and discontinue the DVD format.

Otherwise I don't believe the argument.  The movie
industry has a long history of attempting to seek
monopoly control, even at the expense of profits.
It's only when the industry monopolies are broken
that the public gets what they want, and we get
actual progress, in the constitutional sense of the