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As devotees of our hit video series Five Minutes with Harold Feld (or as the cool kids call it “5MWHF”) will no doubt recall, on the eve of Thanksgiving MPAA dropped a lengthy filing into the Selectable Output Control (SOC) docket. Among other things, it called Harold a liar. Harold immediately took five minutes to tell MPAA to chillax, and yesterday we filed our official response with the FCC. Although I urge you to read our full reply (I promise it is much shorter than the MPAA’s), if you are in a rush here is the short version. Our response basically made three points.
Most of MPAA’s Filing is Unrelated to SOC. MPAA's Investigative Powers are Conveniently Limited
As you probably know by now, MPAA claims that SOC is “necessary” (their word) to release movies on Video on Demand (VoD) before DVD release. Of course, as we quickly pointed out, this is nonsense. Non-MPAA studios already release movies via VoD before DVD. In fact, MPAA member studios already release movies via VoD before DVD. All of this without the “necessary” SOC protection.
MPAA tried to shed some light on why SOC was necessary to prevent illegal copying of movies. Impressively, in order to illustrate how illegal copy networks work, MPAA was able to trace the source of illegal copies of Star Trek from Russia, to Ukraine, to a hotel pay-per-view system. Disappointingly, in a situation that was actually relevant to the waiver discussion, MPAA was not able to tell if the source of illegal copies of Observe and Report or of Ghosts of Girlfriends Past came from the DVD release or the VoD release the previous weekend. However, this shortcoming did not mean that the information was useless.
The information did a great job of showing that DRM does not work. In the words of MPAA “literally every DVD that MPAA-member studios released for rental or purchase during the past year has been made available for unlawful downloading or streaming online.” And there you have it: MPAA is finally admitting that DRM does nothing to impact illegal copying of movies. That is not to say that it doesn’t have other uses – it has been great at destroying innovative products like RealDVD and Kaleidescape. There is no reason to think that SOC will be any better at actually protecting content thank DVD protection has been (in fact, the “secure” HDMI output that SOC relies on has already been cracked). However, SOC will probably be just as good as DVD protection at stifling innovation.
And DRM does nothing to stop another source of illegal copies that MPAA alludes to – the studios themselves. According to MPAA, a DVD-sourced copy of what was only identified as “family action adventure movie” was available online 3 ½ weeks after theatrical release – well before any consumer could have a copy. This is not really a surprise. This summer X-Men Origins: Wolverine made it online before the movie was even in theaters.
MPAA Continues to Ignore Consumers
Over 2,700 people have asked the FCC to reject SOC (join them!). They worry that SOC will make their devices stop working as expected. Assurances that consumers will get a warning that their devices are broken does nothing to mitigate this concern. As we have pointed out before, consumers expect that their devices will continue to function as expected. That’s part of the reason they feel comfortable spending thousands of dollars on a fancy TV in the first place.
MPAA Wants the FCC to Pick Winners in the Marketplace
Companies that provide movies via VoD to consumers (like cable companies and satellite companies) support SOC. Companies that provide movies via movie theaters, and the independent film makers who rely on them, do not.
Public Knowledge does not know which of these groups should be satisfied. More importantly, neither does the FCC. The FCC’s job is not to choose winners and losers in the marketplace. Instead, the FCC’s job is to advance the public interest. MPAA produced plenty of information in its most recent filing, but none of it suggests that SOC is in the public interest.
Oh, and just in case you were wondering to yourself “who owns these millions of HDTVs that will be broken if the FCC allows SOC?” I can’t tell you everyone who owns one, but I do know that at least one of them is on the ground floor of the FCC.