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Who’s Running the Show–the FCC or Hollywood Execs?

September 21, 2009 , , , ,

Last Thursday, PK President Gigi Sohn delivered a statement at an FCC broadband workshop titled “The Role of Content in the Broadband Ecosystem”. If you find yourself questioning what relevance a discussion of content protection has in the context of the National Broadband Plan, you’re not alone. In her statement (oral | written), Gigi questioned the FCC’s jurisdiction over copyright issues and asserted that the Commission certainly does not have the authority to combat online copyright infringement by using the sort of blunt instrument–solutions like copyright filtering and three strikes–that the industry is calling for. So, why even convene a workshop on content protection as part of the National Broadband Plan? The point of the workshop, it seems, was to appease the big entertainment companies that are clamoring for the Federal government to take a more active role in protecting the intellectual property of private companies. This fact could not have been made more clear by the FCC, given the manner in which the workshop was conducted.

Embedded above, you’ll find a video of Frederick D. Huntsberry’s presentation from the workshop. While the time limit for oral statements was supposedly five minutes, Huntsberry, the COO of Paramount Pictures, was inexplicably allowed to give a 10 minute presentation. In a move reminiscent of the MPAA’s how-to-camcord video, Huntsberry demonstrated how to unlawfully download and/or distribute a film online (using a torrent tracker, Drop.io and a streaming site), spoke at length about camcording and insinuated that a number of legitimate companies–including Google, eBay, Apple, Twitter, Facebook and Boxee–are enabling the unlawful trade of copyrighted content online.

Immediately after the hearing, I headed over to the Broadband.gov site to download Huntsberry’s presentation and have a second look at it. That’s when I noticed something curious–Huntsberry’s presentation was not available on the site. While all of the other presentations and statements delivered at all of the other hearings were available for the public to download, presentation materials from the content workshop were nowhere to be found. So, I got in touch with Andrew Nesi, the FCC official who served as the workshop’s coordinator and asked if there were plans to post the presentations–specifically Huntsberry’s–online.

Nesi’s response was surprising, to say the least. I was told that Huntsberry’s presentation was property of Paramount and that it would not be posted online. I responded, telling him that I was under the impression that since the presentation was delivered at a public workshop, the presentation materials would become part of the record and would be available to the public.

In his second response, Nesi told me that Paramount had requested that the FCC not post the presentation online, as it “could possibly encourage the kind of behavior that the video describes”. The FCC chose to honor this request and while the presentation is technically part of the record, it is only available to the public via a low-quality Real video stream of the entire 2 hour hearing.

We here at Public Knowledge thought that that was a pretty weak excuse. So we clipped the footage of Huntsberry’s presentation from the FCC’s Real video feed and posted it on YouTube for you to view, share and embed as you please (apologies in advance for the low quality). We did this for a few reasons:

  • Any presentation delivered at a public government hearing should be made available to the general public in a convenient format. Not everyone is able to travel to Washington D.C. for hearings and those who cannot should not be excluded–rather, they should be encouraged to participate in the debate. The mission statement on the Commission’s new Broadband.gov site seems to agree: “A great way to create a connected America is to involve all Americans in the development of a National Broadband Plan. The FCC welcomes civic participation, and we look forward to more interaction through this website.” If Paramount was concerned that its video would encourage “piracy,” then the company should not have presented it at a public hearing. It’s as simple as that.
  • All of the other presentation materials for all of the other workshops are available on the FCC’s website, so that citizens can download, read, comment on, reference and critique them. Why should Paramount’s statement be treated any differently?
  • During the presentation, Huntsberry seems to suggest that a number of legitimate technology companies, including Drop.io, Twitter, Google, Facebook, Apple, Boxee, Sony, LG, Yahoo!, PayPal and Rapidshare, are arguably acting to enable or encourage unlawful filesharing. These companies and the users of their products should have an opportunity to respond to this allegation.
  • In the beginning of the clip, Huntsberry walks us through a timeline of when various camcorded copies of Star Trek were leaked to the Internet. This timeline provides a great example of how widespread the problem of camcording is, though it’s worth noting that camcording is already illegal in most U.S. States and has little relevance in the context of this workshop (it’s also worth noting that Star Trek made over $200 million at the box office regardless of the fact that camcorded copies were available within hours of its theatrical release). This evidence that films are commonly pirated while still in theaters undermines many of the arguments made by the studios in the FCC’s Selectable Output Control proceeding (i.e. “We need to be granted the power to shut off outputs on the back of your A/V gear, otherwise you will unlawfully copy the films that we broadcast via cable”).

Not only did the FCC treat Paramount’s presentation with kid gloves, the agency also treated the Hollywood execs preferentially throughout the course of the workshop. Upon entering the room where the workshop was held, attendees were greeted by a massive vinyl banner–presumably belonging to Paramount–on which the aforementioned Star Trek timeline was printed. While I appreciate the fact that a visual aid can be helpful, I can’t help but feel like a PDF file submitted to the record would have sufficed.

But that’s not all. Though these workshops were technically less procedural in nature than a formal hearing would be, MPAA Chairman and CEO Dan Glickman was repeatedly allowed to call his technical expert, MovieLabs CEO Steve Weinstein, up to the stand to chime in with additional comments–even though nothing he said was actually technical in nature. The Commission allowed Glickman to do this so many times that Weinstein also started calling others from the audience up to the stand, including Disney Executive Vice President Preston Padden and Disney Vice President Troy D. Dow. Perhaps I’m being overly cynical but I doubt that the Commission would have allowed any of the other panelists to engage in this kind of behavior.

In closing, I’d like to note that in discussing the purpose of the National Broadband Plan, FCC Chairman Julius Genachowski has often remarked that, “Our goal is to create a National Broadband Plan that charts a path toward bringing the benefits of robust broadband to all Americans.” In designing, implementing and executing the plan, let’s hope that the Commission does not lose sight of this goal. The National Broadband Plan should be crafted in a manner that benefits all Americans–not just those few who have traditionally had the loudest voice here in Washington.

Correction: In a previous version of this post, Frederick D. Huntsberry was incorrectly identified as the CEO of Paramount. He is actually the COO. Thanks to Mike Masnick at Techdirt for calling our attention to the error.

Update: A PDF of the Star Trek camcording banner is now available at Broadband.gov.