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Zombies, Pirates, and Why the Latest Copyright Fray Over Set-Top Box Undermines Itself

April 13, 2016 , , , ,

Did you hear the one about the new technology that was going to run amok, squashing creativity, gobbling up every copyrighted work in its path, and redistributing it for free to all of the masses until nothing remained but scorched earth and abandoned studios across Hollywood?

Me too. About 9,000 times.

The latest iteration is an alarmist piece by a producer of “The Walking Dead” (among other formative works like “Armageddon” and “Alien”) about how the Federal Communication Commission’s competitive set-top box proposal will burst open the copyright levies, leading to an age of piracy run rampant the likes of which we have yet to fathom.

I get it — Gale Anne Hurd has made an entire career out of post-apocalypticism (for which I am grateful — seriously, big fan!). But the argument that she makes — that set-top boxes connected to the internet will inevitably lead lawful users inexorably into the temptation of illegal content piracy — doesn't really pass muster.

Let's start with the proposal itself. A key goal of the set-top box proceeding is to ensure consumers who already pay for content through cable or online apps are able to access it in the most low-maintenance, seamless way possible. The argument by Big Hollywood is therefore perplexing: that consumers who have already elected to pay a lot for lawful, high-quality content will somehow be driven by the mere availability of internet access on a cable box to go on a pirating rampage. That's content they will have to go online, hunt down, and break the law to watch — and it's in all likelihood lower quality than what they are paying for. Why, exactly, would consumers feel the need to do this? For the sheer rogue thrill of it? “Spend more of your money and more of your time to watch the programming you seek in terrible quality!” doesn’t strike me as a particularly alluring concept.

A much more plausible line of reasoning surfaces when we examine this producer’s argument: that giving consumers easier, more streamlined access to their lawful content will reduce their incentive to pirate. And if consumers are less frustrated and actually enjoying these new products, largely because the system works well, you could find even more people jumping on the subscription bandwagon. That's good news for everyone involved.

In fact, Americans already know this approach to fighting piracy works, because we saw it in the music business. Only when iTunes, Spotify, and Pandora provided simple, paid sources for online music did average law abiding Americans move from Napster-style sharing of music. Thankfully we already have such a system for video: paid cable and online video. Nothing in the FCC’s plan to introduce competition in the cable box market will cause consumers to stop paying for their cable or online content — just their cable box rental fee if they buy their own box.

Reading the article, it becomes apparent that the gripe is not so much with the set-top box per se, but rather with the broader existence of any device that connects to the internet — because any device that connects to the internet can, in nefariously willing and able hands, be subverted as an instrument for content piracy. By this logic, we should clamp down on the computer, smartphone, and SmartTV markets, too. And actually, Big Hollywood seems to think that's a great idea, as Ms. Hurd reveals:

“If the Federal Communications Commission approves Chairman Tom Wheeler’s regulatory proposal to ‘open’ set-top boxes, it will make piracy as easy and dangerous in the living room as it is on laptop and mobile devices.

“Wait, you didn’t know piracy was rampant on the internet? Well, the figures shocked even me, and as a producer of horror and science fiction, I’m not easily scared.”

Okay. So this isn't about some brand new horrible that will emerge should the set-top device market become more competitive. It's a much more fundamental gripe that Hollywood has had with the existence of the internet and other disruptive technologies in general. For decades. And it isn't just Hollywood — it's all rights holders. Every time some new policy or technology comes up, they parade out these same apocalyptic tales about the death of copyright, dating back to the gramophone. Witness, if you will, some of the more recent premonitions from Hollywood when innovation hits the video marketplace:

●On VCRs: “This is more than a tidal wave. It is more than an avalanche. It is here…If those aftermarkets are decimated, shrunken, collapsed because of what I am going to be explaining to you in a minute, because of the fact that the VCR is stripping those things clean!” (Jack Valenti, chief movie lobbyist, before House Judiciary Committee, 1982)

Guess what didn't happen.

●On DVR: “It's theft. Your contract with the network when you get the show is you're going to watch the spots. Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a commercial or press? the button you're actually stealing the programming.” (Jamie Kellner, CEO of Turner Broadcasting, in Cablevision interview, 2002)

Excellent fearmongering! But years later, we still have ads on television. Fancy that.

And now here we are with the set-top box. Of course, in all of those other situations, the industry ultimately adapted and ended up being able to monetize those technologies because consumers really wanted them. But that doesn't stop the powers that be from breaking into the same hysterics again. As Hurd writes:

“Let me explain why the FCC’s proposal would spell disaster for those of us who are trying to figure out how to keep making the movies and TV shows audiences love…I'm afraid that all of us who create, market and broadcast legitimate content will be like the zombies on my show: the walking dead.”

Sunrise, sunset. Truly, never was a story of more woe than that of Hollywood and the unprecedented competitive potential of the internet.

That's not to say there aren't some bad actors out there. There are. But their bad activity on the web isn't contingent upon whether or not the FCC moves forward with a policy that saves cable customers up to $15 billion in overcharges and makes it easier for subscribers to control their own experience when accessing the programming that they — again — have paid for and to which they have lawful access. And it certainly isn't a reason to delay a process toward a legitimately competitive device market that has taken upwards of two decades to come to fruition.

But let's get real. This isn't really about pirating cable over the box. It's just a rerun of the same Hollywood complaint that applies to any computer, or your Roku or Apple TV, smartphone – flatly, anything that exists today that can connect to the internet and has search functionality. Opposing a competitive set-top proposal because you're worried the internet more generally facilitates pirating makes about as much sense as opposing a competitive automobile marketplace because bank robbers sometimes use roads to flee the scene of the crime. It’s non sequiter at its highest.

We’ve seen this from Hollywood before, in 2011 and 2012 during their support of SOPA and PIPA laws which targeted internet technology out of the same fear of piracy. The end result was online protests from millions of Americans. Thankfully, Congress pulled itself back from harmful action before it was too late.

I think it’s time to address what the industry is really afraid of going bump in the night. If the complaint you all really want to make is that you just generally, broadly oppose the concept of open devices and open internet access, and that you don't want these innovative viewing technologies to become popular, you’re free to do so. But should you get what you want, a reversion to an incumbent-controlled video model on anachronistic, closed devices, I get the feeling you're likely to see a whole lot more unlawful viewership, not less. And when, as the kids say, pirates are the new zombies, you’ll have no one left to point fingers at but yourselves.