This document is also available in
PDF format.

November 2, 2009

Marlene H. Dortch
Secretary
Federal Communications Commission
445 12^th St. SW
Washington, DC 20554

RE: MPAA Petition for Expedited Special Relief: Waiver
of 47 C.F.R. §76.1903 (MB Docket No. 08-82)

Dear Ms. Dortch:

Public Knowledge would like to draw the Media Bureau’s attention to
the movie studios that are currently offering films through Video on
Demand (VoD) prior to DVD release without Selectable Output Control
(SOC). This is precisely the type of offering that the MPAA has claimed
“necessarily would require a higher level of protection against
copyright theft than is currently permissible.”
^[1] The
studios, including a signatory to the original MPAA petition waiver,
clearly do not agree that the current SOC prohibitions are “a
general regulatory impediment that prevents implementation of content
protection required”^[2] to make high value content available prior to DVD
release.

Warner Brothers Entertainment, one of the named parties in MPAA’s
original petition, has already recognized that SOC is unnecessary to
safely distribute high value content on VoD prior to DVD
release.^[3] In
September, Warner debuted Ghosts of Girlfriends Past and
Observe and Report on VoD prior to the release of the films on
DVD.^[4] Although the
films were not protected by SOC, they still debuted as the numbers two
and three best selling DVDs in the country.^[5]

Other companies have embraced pre-DVD VoD releases. Magnolia Pictures has
gone so far as to release a number of films on VoD prior to theatrical
release.^[6] Their
success has inspired a similar strategy by Starz Media.^[7] IFC Entertainment’s
IFCInTheaters program utilizes a day and date distribution model,
releasing films simultaneously in theaters and on VoD.^[8] Needless to say, none of
these studios and distributors rely on SOC protection when distributing
their films. Finally it is worth noting that simultaneous VoD and DVD
release, which is described by the MPAA as an “at
best”^[9]
alternative to standard staggered release windowing, is rapidly becoming
industry standard.^[10]

The MPAA insists that SOC is required to offer pre-DVD release of high
value content on VoD. As the above examples illustrate, not even MPAA
member studios agree. SOC simply is not required to offer pre-DVD VoD
release. There is no reason to grant the MPAA’s waiver request and
force consumers to replace over 20 million television sets, in addition
to an unknown number of other consume electronic devices, in order to
enable an already widely deployed service.

Sincerely,

/s/

Jef Pearlman
Michael Weinberg, Law Clerk
Public Knowledge

CC: Brad Gillen
Rosemary Harold
Rick Kaplan
William Lake
Mary Beth Murphy
Nancy Murphy
Brendan Murray
Alison Neplokh
Jeffery Neumann
Robert Ratcliffe
Sherrese Smith
Jennifer Schneider

^[1] Motion Picture
Association of America, Petition for Expedited Special Relief, Petition
for Waiver of 47 C.F.R. § 76.1903 at i (May 9, 2008) (“MPAA
Waiver”).

^[2] Id. at
ii.

^[3] Jennifer
Netherby, Warner puts Observe, Ghosts on VOD before DVD, Video
Business (Sept. 28, 2009), available at http://www.videobusiness.com/article/CA6699156.html.

^[4] Id.

^[5] US DVD Sales
Chart for Week Ending Sep 27, 2009, available at http://www.the-numbers.com/dvd/charts/weekly/2009/20090927.php.

^[6] Hugh Hart,
Mark Cuban to Show New Movies on TV Before Theatrical Release,
Underwire (July 9, 2008),

available at http://blog.wired.com/underwire/2008/07/cuban-to-show-n.html.

^[7] Andre
“DVDBack23” Yoskowitz, Starz test movie via VOD bfore
theaters, DVD, Afterdawn.com (Sept. 7, 2009) available at
http://www.afterdawn.com/news/archive/19253.cfm

^[8] About IFC,
available at http://www.ifcfilms.com/about-ifc-films

^[9] MPAA Waiver at
2.

^[10] Diane
Garrett, Studios collapsing VOD windows, Variety (Oct. 8, 2009)
available at
http://www.variety.com/article/VR1118009748.html?categoryid=20&cs=1.