12 August 2001: Add responses.
9 August 2001
Source: Hardcopy of The New Yorker, August 13, 2001, pp. 57-58. These are the concluding paragraphs of a lengthy profile of Jack Valenti, by Connie Bruck, entitled "The Personal Touch -- Jack Valenti knew how to make Washington listen to Hollywood. Can he still do it?" Most of the article is about Valenti's 30-year lobbying career for the MPAA, in particular his success at getting favorable treatment for the movie industry by the White House and Congress.
Those who attended this session are invited to provide their views of it for publication here; send to jya@pipeline.com
But the more he is tested, Valenti insists, the more he likes it. As a case in point, he mentioned an evening he spent at Harvard Law School last fall, debating Professor Lawrence Lessig on the future of intellectual property in cyberspace.
Characteristically, Valenti sought to disarm the people in the audience, calling them "the best and the brightest," as well as his opponent -- "Larry is one of the most charming, enchanting people ever to shove a lance dipped in curare right up my backside." He let them know that he, too, had a Harvard degree, though he confided that he had really wanted to become a lawyer. Lest it seem that he was too pugnacious, he told Lessig at one point that he was going to hug him. He was generous with historical allusions, quoting Immanuel Kant, Samuel Johnson, and William of Occam. Several times, he invoked Lyndon Johnson, and his own experience in the White House. He mentioned that he had recently been "lacerated" in hearings before the Senate Commerce Committee (following the F.T.C. report on sex and violence in movies), and he was reminded that "whenever L.B.J. confronted one of these moments when he was being compared unfavorably with Caligula, he would say, 'O.K., boys, it's getting hot out there, we're gonna all hunker down like a jackass in a hailstorm and wait for the wind to stop blowing.' That's how I'm feeling about the Senate Commerce Committee and the Congress and now the Harvard Law School, where Larry Lessig is going to demolish me and shred me up pretty good."
But if he was self-deprecating he was also noticeably eager to assure this young audience of technophiles that he was no anachronism, He announced that he was setting up a new digital-strategy department at the M.P.A.A., and that within a year its member companies would be offering movies online, at "reasonable" prices -- thus preventing, he hopes, a Napster-like situation in the film industry. "I've talked with the smartest people in cyberspace all over this country. I sit on the board of two Internet companies where my fellow board members range in age from twenty-three to thirty. And I'm learning a whole new patois, a whole new language, and I'm learning a lot!" His exposure to this radically changed world, however, had not caused him to alter his signature approach. As he expressed it, alluding to William of Occam, "Keep the bloody thing simple," And, he continued, "This is very simple. This is about private property, intellectual property ... Because of this technological legerdemain called the Internet ... people find it easy to steal."
Lessig, granted that there is indeed some "stealing" that he would not defend. And he stipulated that authors have an important interest in protecting their copyrights. But, he insisted, "There is a big difference between perfect control and the right to be paid." Lessig proceeded to outline a high-minded and complex rebuttal, citing the history of copyright law and the importance of "fair use" doctrine, which allows some liberties to be taken with copyright. He argued that the media-entertainment industry was attempting to achieve monopolistic control of "content" and its distribution in cyberspace, and he decried the provisions of the Digital Millennium Copyright Act (lobbied for vigorously by Valenti and passed in 1998), which make it a crime to circumvent any technologies intended to protect copyrighted material in cyberspace, or even to reveal how to do so. More broadly, Lessig argued that it is crucial to strike a balance between private intellectual property and the public's constitutionally mandated interest in a rich public domain -- a domain more vital than ever in the new digital environment. Valenti, however, had little interest in that theoretical give-and-take. He stuck resolutely to the real world: the existing law (recent cases have been decided consistently in favor of the copyright holders and against the putative infringers), the cost of making movies, the risk to the producers of having their products copied and thrown up on the Internet, the importance of intellectual property to the economy, as America's greatest trade export. At one point, the moderator commented that Valenti and Lessig were "ships passing in the night." But it was plainly Valenti's aim never to engage, and most of the time he evaded rather deftly.
This ideological war over the rights to digital content, which could have been Valenti's undoing (some in Hollywood had wondered if he would be able to master its lexicon and intricacies at this late stage in his career), may instead have strengthened his hold at the M.P.A.A. Valenti does seem antiquated at times, preaching to online enthusiasts who might be his grandchildren about misbehavior in cyberspace. But these sermons are mere sidelights. What the M.PA.A. cares about about is how Valenti performs in Washington, not in Cambridge; and in Washington Valenti has done very well for his bosses. He has taken an amorphous and extremely complicated subject, translated it into simple, very human terms, and got the legislation that the companies wanted: the Digital Millennium Copyright Act. In the process, he has succeeded, as usual, in transforming the issue, so that it is widely perceived as involving not Hollywood's commercial interests but, rather, the public good.
While his night at Harvard didn't matter much to the M.P.A.A., it did to Valenti. If he had scored no points against Lessig and won no converts in this audience, he barely seemed to notice. He was onstage, the crowd was attentive, he got some laughs. He was relishing the challenge, he told me later, of being "Daniel in the lion's den." So when the moderator declared the event over, Valenti cut in. Turning to the audience, he declared "I am astonished beyond my comprehension that so many really bright people would sit here frorn seven o'clock to nine o'clock. I'm really amazed by that. I don't know what that signified, to be honest, except that maybe this is a lousy night to do anything in Harvard. But I'm stunned by it, and, as a matter of fact," he said, in a suddely unpostured moment, gazing out at the crowd, "I'm rather joyful about it."
To: jya@pipeline.com
From: linux@linuxnet.yi.org
subject: Re: Valenti Lessig IP debate
Date: Sat, 11 Aug 2001 23:50:26 -0400 (EDT)
I just don't like the thought of using "the protection of IP" as and exuse
to control/exploit their users with shrinkwrappy (click your rights away)
and hidden code. IPDroids have somehow convinced Congress that they
need perfect absolute control over their works in a digital context, otherwise
they claim that they will not make any money, hence the DMCA. I see the DMCA
as a way governments can use copyright law as to have the control of the
code given to proprietary interests. For the sake of Humanity, we need
to have an open/micropayment system type architecture (with liberal encyrption
for privacy) which routes data to where it's in most demand (kind of like
Freenet and Paypal). I've always felt ripped off when IPDroids bundle
crap with a couple good pieces of work, as well as have the ability to *NOT
SUPPORT* works that don't meet my criteria of a good piece of work (ever
see a horrible movie and say, give me my money back bastards?).
Distribution should not be controlled by propritary interests. Their
incentive to exploit consumers is too Great. Why can't I subscribe
to TVG and they send me a freenet key where I can watch all the replays from
the day? All TVG has to do, is to have sponsors for each race and before
the race is run, they can do a 15 second commercial? If I share my
key, big deal, others will watch the commercials as well (since they're embedded
in the works). This should bring stronger Advertising Revenue, as IP
is liberally distributed, more eyes see the
ads!
Anyway enough rambling, it's late. I'd like to close in saying we should
have a system of IP distribution that encourages sharing and arrange a payment
architecture that allows for contributions on a pay-as-U-choose
arrangement. I've never had a problem paying for works when they are
advertisement free, but when I see an ad and I've paid for the works, I always
feel double billed. Consumers should have the choice (not IPDroids)
on whether a contribution should be made. As long as there are people
who care about their privacy and freedom (and still want to access works),
there will be crackers of IP. The DMCA disrespects consumers' rights
by making it a crime to access works you've paid for, using an "unauthorized
access device", and those people who do it, most likely don't want to have
their privacy infringed upon. Copyright law on the Internet doesn't
have to be an either/or proposition. IPDroids should release their
works in an open format over freenet and enable the purchase of freenet keys
for a reasonable price. This way they save on distribution cost (FREE)
and it puts people in control. M For 0.6666667 cents per day I'd pay
to subscribe to TVG commericial-free. This is 2$/per month. I would
argue if they embed commercials in their works for this, providing it in
an OPEN FORMAT, I would have NO OBJECTIONS (providing they R short
commercials,i.e., no worse than they R now offline).
Leonardo
Cincinnati, OH
Date: Thu, 09 Aug 2001 14:07:51 -0400
From: Sphere <sphere1952@mediaone.net>
To: dvd-discuss@eon.law.harvard.edu
Subject: Re: [dvd-discuss] Valenti Buys Washington
John Young wrote:
>
> The New Yorker magazine (www.newyorker.com) this week
> has a long piece on the career of Jack Valenti which describes
> how he was able to get Washington to give the movie studios
> what they wanted.
>
> There are several passing mentions of the DMCA and copyright
> disputes, but mostly it's about Jack's success as a movie
> industry lobbyist over three decades.
>
> According to the article the major studios have been at odds
> for years, and Jack's career was in a deep slump, but the
> DMCA/DeCSS/Napster wars have led the studios to take
> an interest in working together, and Jack's career has been
> given new life.
>
> It closes with a short description of the Jack's enjoyment at
> the Harvard session on the DMCA/DeCSS where he deftly
> avoided being nailed by Larry Lessig through flattery,
> obsequiousness and suavity, not toward Lessig but toward
> the young student audience -- using techniques to charm the
> opposition learned long before as a "valet" of Lyndon Johnson.
I was at that session, and I can vividly remember how he squirmed when it became apparent that his flattery, obsequiousness and suavity was getting him nowhere. He did regain his stride near the end, but it was clear he hadn't swayed much of his audiance. (His failure might be partly attributed to the number of people like me who were present. He is rather good at the down-home, good old boy bullshit.)
> The article is business-oriented, written by a well-known
> business writer. That MPAA arranged for it would be
> consistent with the backroom success story it sells about
> how Hollywood commands obedience from Congress and the
> White House through means used on the Harvard students.
Date: Thu, 9 Aug 2001 14:46:06 -0400 (EDT)
From: "Robert S. Thau" <rst@ai.mit.edu>
To: dvd-discuss@eon.law.harvard.edu
Subject: Re: [dvd-discuss] Valenti Buys Washington
sphere1952@mediaone.net writes:
> I was at that session, and I can vividly remember how he
> squirmed when it became apparent that his flattery,
> obsequiousness and suavity was getting him nowhere. He
> did regain his stride near the end, but it was clear he
> hadn't swayed much of his audiance. (His failure might
> be partly attributed to the number of people like me who
> were present. He is rather good at the down-home, good
> old boy bullshit.)
A particular recollection: his hearty, fulsome endorsement of laws to protect the rights of authors --- so long as no one has asked in the past five minutes whether that extends to the droit morale provisions of some European copyright laws, which create rights which inhere to authors and *cannot be delegated*.
(Remember who Valenti represents...).
Date: Thu, 9 Aug 2001 17:27:15 -0500
To: dvd-discuss@eon.law.harvard.edu
From: steve bryan <steve_bryan@mac.com>
Subject: Re: [dvd-discuss] Valenti at Harvard
At 5:20 pm -0700 8/9/01, John Young wrote:
Bruck writes:
>in Washington Valenti has done very well for his
>bosses. He has taken an amorphous and extremely
>complicated subject, translated it into simple, very
>human terms, and got the legislation that the companies
>wanted: the Digital Millennium Copyright Act
I realize you are only the messenger but couldn't this be dismissed as simply sloppy reporting? I would suggest his ability to get on the phone and arrange for much needed campaign financing in a pinch as being a much more likely explanation of his effectiveness in Congress with his intellectual grasp of the issues, or lack thereof, being unimportant. I may be showing my own lack of sophistication but I can't imagine that the DMCA will survive judicial review. The case of Professor Felton (although it involves the RIAA) seems particularly dangerous for the DMCA.
Date: Thu, 09 Aug 2001 16:31:43 -0700
To: dvd-discuss@eon.law.harvard.edu
From: John Young <jya@pipeline.com>
Subject: Re: [dvd-discuss] Valenti Buys Washington
Here's how to send a letter to the New Yorker (from www.thenewyorker.com):
To submit a letter for publication in the magazine, you may send an E-mail to themail@newyorker.com. Alternatively, letters may be faxed to 212-286-5047, or sent by regular mail to The Mail, The New Yorker, 4 Times Square, New York, N.Y. 10036-6592. Letters should include the writer's name, postal address, and daytime phone number. Those chosen for publication—whether in print or online—may be edited for length and clarity. We regret that, owing to the volume of correspondence, we cannot reply to every letter.
Here's the Valenti article reference (it is not online):
Issue date: August 13, 2001
Article title: Profiles: The Personal
Touch
Jack Valenti knew how to
make
Washington listen to
Hollywood.
Can he still do it?
Author: Connie Bruck