Expert answer:Mass Communications matrix
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Media Law
Shaking Up Hollywood
By age 12, Jon Lech Johansen had written his first computer program. That made him a
wunderkind of sorts. But nobody foresaw that he would, while still a teenager, devise programs
that would shake the billion-dollar Hollywood movie industry to its core. His genius also would
make him a folk hero to millions of movie-lovers worldwide.
Waiting for the Judge. Jon Lech Johansen waits for his case to begin in a Norway court. The
U.S. movie industry had gone after DVD-Jon, as he came to be called, for publishing code that
enabled others to copy disks. He was acquitted.
Len Irish
Jon-Lech, as he came to be lionized in his native Norway, began his trek to notoriety
unwittingly. He loved movies. By 15 he owned 360 DVDs. Some he bought at jacked-up
Norwegian prices because Hollywood’s geographical coding prevented European computers
from playing U.S.-issued versions. Other DVDs he bought from U.S. sources, and with coding
he invented, he played them on his computer. It all was perfectly legal in Norway. He recalls
reveling at his accomplishment when he first ripped copies of The Matrix and The Fifth Element.
“Why shouldn’t others share my enjoyment?” he asked himself. A week later, he posted his
coding on the internet.
Hollywood went ballistic, recognizing that Jon-Lech’s coding could be used to bypass the
encrypting that prevented their DVD movies from being easily swapped through file-sharing.
The revenue loss could be devastating. The Motion Picture Association of America pushed
Norwegian authorities to act. Police raided the Johansen home, confiscated Jon-Lech’s computer,
and put him through seven hours of interrogation. Confident he had done nothing wrong, JonLech even gave police the password to his computer.
Johansen thus found himself at the vortex of a continuing struggle between the rights of
megamedia conglomerates that own creative material and the rights of individuals to do what
they want with products they buy—in this case copying DVDs, and also music, to play on any
number of their own devices.
For the trial, Hollywood executives flew to Oslo to argue that Johansen had unleashed software
that facilitated movie piracy and could leave the movie industry in ruins. Johansen responded
that he had committed no wrongdoing, let alone piracy, and that he had a fundamental human
right of free expression to share his coding however he wanted. In effect, he said: “Go after the
pirates, not me.” Jon-Lech fancied himself a consumer advocate, allowing people to use their
DVD purchases as they wanted—on computers at home, on laptops on the road, on handheld
devices anywhere else. The court agreed. In fact, when the prosecution appealed, the court
agreed again.
In the run-up to the trial, Jon-Lech supporters worldwide distributed T-shirts and neckties printed
with his software. In the May Day parade in Oslo, backers carried a banner “Free DVD-Jon.”
Meanwhile, more than 1 million copies of his anti-DVD encryption software had been
downloaded from Johansen’s site.
For better or worse, depending on your perspective, Norway later revised its laws to forbid
software that could be used to undermine copyright protections. The United States had done this
earlier at the behest of giant media companies. But the issue lives on, as you will discover in this
chapter on mass media law. This includes the most pressing media law dilemma in the early 21st
century—the protection of intellectual property.
Chapter Insights
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Copyright law protects intellectual property, with a lot of twists wrought by
emerging technology.
The heart of U.S. mass media law is the First Amendment’s guarantee of free
expression.
The First Amendment has come to be applied more broadly over the years.
Anyone falsely slandered by the mass media may sue for libel.
The courts have addressed indecency as an issue by defining obscenity and
pornography differently.
Intellectual Property
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Products produced by mass media companies go by the legal name of intellectual property.
Copyright law protects ownership rights to intellectual property. Other rights, including
consumer rights and free expression rights, have arisen to challenge the long-held supremacy of
copyright. Mass media companies are worried.
Copyright
Copyright has been around since the beginning of the Republic. The founders wrote copyright
law into the Constitution. When Congress first convened in 1790, the second law to be passed
was for copyright. The whole idea was to encourage creativity. With creative work classified as
property, creative people have a legal right to derive income from their works by charging for
their use. An author, for example, can charge a book publisher a fee for publishing the book.
Actually, it’s a little more complicated, but that’s the idea. The goal was to guarantee a financial
incentive for creative people to keep creating. Why? The rationale was that a society is richer for
literature and music and other creative works. Inventions, which are covered by patents, are a
separate area of intellectual property law. But the idea is the same.
Permissions
Copyright law allows creators to control their creation. They can sell it, lease it, give it away or
just sit on it. Copyright law is the vehicle through which creative people earn a livelihood, just as
someone in the trades, like a carpenter earning money from carpentry or a landlord earning
money by renting out real estate. Creators of intellectual property grant permissions for the use
of their work, usually for a fee. Freelance photographers, as an example, charge magazines that
want to use their photographs. Composers charge music publishers that want to issue their music.
Assignments
As a practical matter, most photographers, composers, authors and other creators of intellectual
property don’t have the expertise or means to exploit the commercial potential of their work.
Simon & Schuster, for example, can better market a hot murder mystery than can its best
whodunit author. Imagine Jay-Z without Def Jam. Or a Mark Burnett eco-adventure show
without CBS. Although there are notable Lone Rangers, the resources of major media companies
make it attractive for the creators of intellectual property to sell or assign their rights to a media
company. In exchange for the assignment of their rights, the originating creator usually receives
a flat fee or a percentage of the eventual revenue.
Also, media companies hire creative people whose work, as part of their employment, belongs
automatically to the company.
For media companies, these rights are a treasure trove. It’s their product. It’s what they have to
sell. No surprise, media companies vigilantly guard the studio’s intellectual property against
theft, or piracy, as they call it. Hollywood studios each have dozens of attorneys who monitor for
infringements of their copyrights. So do music companies. Magazines and newspapers are
increasingly active in identifying infringements. Not uncommonly, media companies go to court
against anyone who expropriates their property without permission and without paying a fee.
Consumer Rights
Predictably, mass media companies overreact when a threat to their tried-and-true business
models presents itself. This has been no more true than in frenzied, almost Luddite attempts by
media companies to apply copyright law to shield their old and comfortable ways of doing
business. Time and again, media companies, wedded to the past, have failed to think outside the
box and exploit new technologies. In fact, not since the glory days of RCA, which prided itself
on research and development under David Sarnoff, have the established media companies been
on the technological cutting edge.
Recent history has shown media companies merely making tepid applications of technology for
modest advantages in efficiency. Then, wham, they find their existence on the verge of being
upended by innovators who are seeing new basic infrastructures and saying to hell with old
business models. Consider the recorded music industry in the Napster and Grokster cases, and
the book industry in the Google case.
Grokster
In the 1990s, the music recording industry, entrenched in its traditional ways of doing business,
was in a frenzy with music-swapping software sales eroding profits dramatically. First with
Napster, then other peer-to-peer music-sharing services, people were bypassing the retail CD
bins. Napster was the first to hit the dust, in a 2001 federal court case. Then came the case
against Grokster, another peer-to-peer service. Grokster argued that its software was neutral as
to the rights and wrongs of copyright law. Yes, said Grokster, there could be misuses but the
recording industry’s legal target should be the misusers—not Grokster.
In deciding the case in 2005, the Supreme Court noted that Grokster had explicitly promoted the
copyright-infringement potential of its software. It was right there in the company’s own
advertising. The ads were self-incriminating, the Court said. Grokster was out of business. The
lesson is that infringement-enabling devices are all right as long as infringement isn’t
encouraged.
Download Confrontation. Among young people, emotions run high about music. A widely held
view is that access to music should be free. When the U.S. Supreme Court was hearing the
Grokster case over software intended to facilitate music downloads without the permission of
copyright holders, protesters displayed their disdain for the record industry’s initiative to shut
down file-sharing.
Dennis Brack/Landov Media
In any event, the music recording industry was shaken by Napster and look-alike systems like
Grokster. The end result, after the legal battles, was that the industry came out of its decades-old
buffered ways, which had been shielded by copyright law, and embraced the new technology.
Even by the time of the Grokster decision, the German-owned global media giant Bertelsmann
had bought the remnants of Napster to find ways to market its music online. Also, Apple’s online
music store, iTunes, introduced in 2002, was an instant success. Other online music sales outlets
cropped up, sponsored by record makers, to capitalize on new technology—not to fight it or
continue into denial about the technology-wrought new digital downloading reality.
Google
The book industry, also entrenched in old ways, missed the potential of digital technology.
Except for back-shop production efficiencies and minor forays with e-books, publishers had to
be dragged kicking and screaming into the 21st century, like the movie and recording industries
before them. Google was the reason.
Fueled with untold revenues from its massively successful search engine in the early 2000s,
Google expanded rapidly into new ventures. In 2005, Google executives talked five major
libraries into allowing it to digitize their entire collections, 15 million books in the English
language. The goal, then, was to create a single online index system, the Google Books Library
Project, with worldwide free access.
Publishers first bristled, then sued. The publishers’ claim was that their intellectual property
interests would be jeopardized through free online access to copyright-protected works not yet in
the public domain.
Google and the Association of American Publishers reached a settlement in 2009. Almost
immediately other groups including the Authors Guild as well as industry groups in other
countries questioned the settlement and raised objections of their own. These issues may create
new parameters on the protections afforded by copyright law. Whatever the outcome, the case
further illustrates that mass media companies are less in control of the technology that is
reshaping the world than are companies and individuals who specialize in the research and
creative thinking that brings about technical revolution.
Checking Your Media Literacy
• How have the consumer rights movement and the copyright community collided?
•
What lessons about copyright can be derived from the Grokster decision?
• What are the copyright issues in the Google library project?
Media Counterpoints: The Price of Free Music
Imagine opening an urgent e-mail from the Recording Industry Association of America accusing
you of illegally downloading hundreds of songs onto your computer. Indeed, you have used a
file-sharing program you found on the internet to build your music collection. By doing this, the
e-mail charges, you have violated federal copyright law. The law, you’re reminded, grants rights
to an artist, publisher or distributor for exclusive publication, production, sale or distribution of
artistic work. The message from the RIAA is threatening: Settle now for several thousand dollars
or we’ll see you in federal court.
Piracy Not Nice. The recording industry, crippled by revenue losses from music file-swapping,
has gone after downloaders, mostly college students, for copyright infringement. Legal
settlements can run into thousands of dollars.
RIAA Recording Industry Association of America
A hoax? Not for several hundred college students who have received these “prelitigation” emails. Most students settle, despite feeling that they were unfairly singled out. After all, it’s
estimated that more than half of all college students illegally download copyrighted music and
movies. As one 20-year-old student who recently received the RIAA e-mail explained: “I knew it
was illegal, but no one got in trouble for it.”
Copyright infringements continue to cost the artistic community billions of dollars. And with less
money to reward creativity, artists may be less able to support themselves financially, and the
companies that distribute their art will be less willing to invest in the endeavors as a matter of
diminishing return. This is a line of reasoning embedded in Article 1, Section 8, of the U.S.
Constitution: “The Congress shall have power…. to promote the progress of science and useful
arts, by securing for limited times to authors and inventors the exclusive right to their respective
writings and discoveries.”
A second argument against copyright infringement is that piracy hurts honest people. The piracy
forces higher prices for artistic goods, like music, so that creators and rights holders can offset
their losses to piracy.
Deepening Your Media Literacy
EXPLORE THE ISSUE: Think of web sites that allow people to download music or movies
legally.
DIG DEEPER: Do you think the lawsuits brought by the recording industry will solve the
problem of illegal downloading? Are there alternatives? Would legislation help? How about
education programs starting in grade school?
WHAT DO YOU THINK? Individuals who download music may not be the only ones being
sued. Media giant Viacom has sued YouTube because its users can illegally upload Viacom
movies. Is it just a matter of time before individual YouTube users are also sued for sharing
copyrighted media without permission?
Free Expression
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A core American value is that the government cannot impede free expression, which, of course,
extends to mass communication. Although the U.S. Constitution bars government censorship, the
courts have allowed exceptions. These exceptions include utterances that could undermine
national security in wartime. In general the Supreme Court has expanded the prohibition on
censorship over the years.
Distrust of Government
In colonial times as ill feeling grew against British authority, before the formation of the United
States, a critical mass of libertarians ascended into leadership roles. These people were still in
critical leadership roles when the Revolutionary War ended. These included many luminaries of
the time—Thomas Jefferson, Benjamin Franklin, James Madison and John Adams. Their
rhetoric excoriated the top-down authoritarian British governance system.
In drafting the Constitution for the new republic, the founders, mindful of their experience as
part of the British empire, were firm in their distrust of governmental authority. Also, they
exalted the ability of people individually and collectively to figure out their way to the best
courses of action through free inquiry and free expression in an unregulated marketplace of
ideas. No surprise, the Constitution they put together prohibited government from interfering in
free expression. The prohibition is in the Constitution’s First Amendment: “Congress shall make
no law-abridging the freedom of speech or of the press.” The amendment, a mere 45 words, also
prohibits government from interfering in religion. Also, it guarantees people the right to
complain about the government and demand that wrongs be righted. Most relevant for media
people are the free speech and free press clauses, which can be summed up as the free expression
provision.
Implicit in the First Amendment is a role for mass media as a watchdog guarding against
government misdeeds and policies. In this respect, in news as well as in other content areas,
media are an informal fourth branch of government—in addition to the executive, judicial and
legislative branches. Media have a role in governance to, in effect, ensure that the government is
accountable to the people.
First Amendment Rediscovered
As ironic as it seems, merely seven years after the Constitution and the First Amendment were
ratified, Congress passed laws to limit free expression. People were jailed and fined for
criticizing government leaders and policies. These laws, the Alien and Sedition Acts of 1798,
ostensibly were for national security at a time of paranoia about a French invasion. One of the
great mysteries in U.S. history is how Congress, which included many of the same people who
had created the Constitution, could pass the Alien and Sedition acts that so contradicted the anticensorship provision of the First Amendment.
The fact, however, is that nobody paid much attention to the First Amendment for more than 100
years of the nation’s history. The First Amendment was a nice idea but complicated. Nobody
wanted to tackle tough questions, such as in the case of the 1798 laws, or whether exceptions to
free expression were needed in times of war or a perceived threat of war.
Many states, meanwhile, had laws that explicitly limited freedom of expression. The
constitutionality of these laws too went unchallenged.
Not until 1919 did the U.S. Supreme Court decide a case on First Amendment grounds. Two
Socialists, husband and wife Charles Schenck and Elizabeth Baer, had been arrested by
federal agents for distributing an antiwar pamphlet. They sued, contending that the government
had violated their free-expression rights as guaranteed by the First Amendment. The Supreme
Court turned down their appeal, saying that censorship is reasonable during a war,. But for the
first time the justices acknowledged in the case, usually called Schenck v. U.S., that Freedom
from government restraint is a civil right of every citizen.
Numerous other censorship cases also flowed from World War I. In 1925 the Court overruled a
New York state law under which antiwar agitator Benjamin Gitlow had been arrested. Gitlow
lost his case, but importantly, the Court said that state censorship laws in general were
unconstitutional.
Prior Restraint
On a roll with the First Amendment, the Supreme Court in 1931 barred the government in most
situations from silencing someone before an utterance. In Near v. Minnesota, the Court banned
prior restraint. The case began after a sheriff padlocked the Minneapolis scandal sheet under a
state law that forbade “malicious, scandalous and defamatory” publications. The great libertarian
John Milton, who had articulated the marketplace of ideas concept in 1644, would have
shuddered at the law. So did the U.S. Supreme Court. In a landmark decision against government
acts to pre-empt free expression …
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