MPAA copies movies too!

[Kingnog]

http://arstechnica.com/news.ars/post/20060124-6036.html

From the article:

"What happens when an organization that is best known for inveighing against the unauthorized copying of movies gets caught doing exactly that? The Motion Picture Association of America was caught with its pants down, admitting to making unauthorized copies of the documentary This Film Is Not Yet Rated in advance of this week's Sundance Film Festival.

This Film Is Not Yet Rated looks at the motion picture ratings system created and run by the MPAA. Director Kirby Dick submitted the film for rating in November. After receiving the movie, the MPAA subsequently made copies without Dick's permission. Dick had specifically requested in an e-mail that the MPAA not make copies of the movie. The MPAA responded by saying that "the confidentiality of your film is our first priority."

Dick later learned that the MPAA made copies of the film to distribute them to its employees, despite the MPAA's stance on unauthorized copying. Ah, there's nothing like the smell of hypocrisy in the morning-apparently the prohibition against copying films without the copyright owner's consent doesn't apply to the MPAA. A lawyer for the MPAA justified the organization's apparent hypocrisy by saying that Dick had invaded the privacy of some MPAA staffers, which justified the MPAA's actions.

"We made a copy of Kirby's movie because it had implications for our employees," said Kori Bernards, the MPAA's vice president for corporate communications. She said Dick spied on the members of the MPAA's Classification and Rating Administration, including going through their garbage and following them as they drove their children to school.

A little background: This Film looks at how the rating system functions, specifically at how some types of content are treated differently by the MPAA. Dick feels that the MPAA is full of—surprise—double standards, especially when it comes to how they treat graphic violence vs. sexual content, heterosexual vs. homosexual sex, and big-studio vs. independent films. As part of the documentary's creation, Dick trailed and identified some of the previously anonymous members of the ratings board. Dick's conduct became a cause for concern for both the MPAA and its employees, leading to their calling the police on some occasions.

According to Mark Lemley, a professor at the Stanford Law School, the MPAA may have been within its rights to make copies of the film. Given that the MPAA's intent isn't financial gain and that the whole situation may rise above the level of trading barbs through the media into legal action, making a copy may be justified. Personally, I can't see any justification for an organization such as the MPAA ignoring a directive from a copyright owner, but IANAL. A "digital version" of the movie was submitted for screening, according to Dick's attorney, Michael Donaldson. If that digital version turns out to be a DVD, the MPAA could also find itself in hot water for violating the DMCA. Oh, the irony! Either way, the MPAA can't be happy about being put into a position where they are forced to justify the same actions they decry when undertaken by a consumer.

It's difficult to see how This Film Is Not Yet Rated—which ended up with an NC-17 rating for graphic sexual content—is being harmed. If nothing else, Dick is reaping a bountiful crop of free publicity on the eve of the Sundance Film Festival. The MPAA's decision to make copies of the film without the copyright-holder's permission reinforces the documentary's message that the MPAA's actions often reek of self-interest and hypocrisy."

[Headbanger's Ball]

That is great! Funny how their attorney's seem to think it's ok for them to copy but not ok for the consumers to backup DVDs.
There's got to be a special place in hell for these kinds of people.

[mumbles]

oh man, that's great... with all this stuff about copying DVDs, i guess something had to give!

[dvdguy4]

Whats ours is theirs and whats theirs is theirs

[verchad]

Remember the golden rule, "Do as I say, NOT as I do".

Hah, so can this poor lowly guy sue them for thousands of dollars per copy they made, plus request a list of those who received a copy, track them down, see if they illegally gave/made/loaned/SHARED copies to others, and sue them too. Or would the MPAA prefer to make a huge out of court settlement to avoid prosecution? Just wondering.

[Kingnog]

lol. My favorite part was:

We made a copy of Kirby's movie because it had implications for our employees," said Kori Bernards, the MPAA's vice president for corporate communications. She said Dick spied on the members of the MPAA's Classification and Rating Administration, including going through their garbage and following them as they drove their children to school.

So just because the movie had footage of employees, they're allowed to make copies even though the guy had explicitly told them not to? Does that mean that all actors/actresses are allowed to make illegal copies of the movies they appear in (not that they'd have any reason to...)?

[SilverBlade]

The ever-classic "We're above the law because we invented copyright law and have the legal ability to break it"

[gadgetguy]

I'm no fan of the MPAA, and it's fun to poke fun at their apparent hypocrisy, but I think this is getting blown out of proportion. If I understand this right, the MPAA made a copy as evidence in a potential case against the filmmaker for violating it's employee's privacy rights. I'm not a lawyer and I don't know if there is any legitamacy to the case, but I think the copy would fall under the fair use clause. They have not published it, released it, attempted to make any money off it, or make it available for download.

[BobK]

I'm not a lawyer and I don't know if there is any legitamacy to the case, but I think the copy would fall under the fair use clause. They have not published it, released it, attempted to make any money off it, or make it available for download.

I'm not a lawyer either, but I think if you break the law to obtain evidence it's still breaking the law. They wouldn't have been allowed to break into the guys house and steal the movie just because it might be evidence.

On the other hand, should we all now feel free to copy rental movies as long as we don't publish it, release it, download it or attempt to make money off it?

[Rich86]

I'm no fan of the MPAA, and it's fun to poke fun at their apparent hypocrisy, but I think this is getting blown out of proportion. If I understand this right, the MPAA made a copy as evidence in a potential case against the filmmaker for violating it's employee's privacy rights. I'm not a lawyer and I don't know if there is any legitamacy to the case, but I think the copy would fall under the fair use clause. They have not published it, released it, attempted to make any money off it, or make it available for download.

So, the mpaa should not bother folks who copy their personally purchased and owned dvd's as long as "They have not published it, released it, attempted to make any money off it, or make it available for download"?
I'm very comfortable with that - but I expect the mpaa would like to take some money from us for just thinking about copying a legitimately bought and paid for dvd for our own personal use. All they are saying here is - they think they had a good and valid reason for mass copying the dvd for the employees. Well - what if one of us mass copies a dvd for some group of people because it is relevant to that group somehow. That is the hypocrisy in my opinion.

[Marvingj]

Sounds like a Lawsuit to me.....

[gadgetguy]

They wouldn't have been allowed to break into the guys house and steal the movie just because it might be evidence.t?

That's true, but they didn't break any laws to get it. They received the video under legal and normal activities. It seems after viewing the film that they perceived a crime had been committed and to preserve the evidence they made a copy. I believe this falls under fair use and I was just pointing out that they didn't do anything else with the copy that would have violated fair use.

[gadgetguy]

So, the mpaa should not bother folks who copy their personally purchased and owned dvd's as long as "They have not published it, released it, attempted to make any money off it, or make it available for download"?

Correct, they shouldn't.

I'm very comfortable with that - but I expect the mpaa would like to take some money from us for just thinking about copying a legitimately bought and paid for dvd for our own personal use. All they are saying here is - they think they had a good and valid reason for mass copying the dvd for the employees. Well - what if one of us mass copies a dvd for some group of people because it is relevant to that group somehow. That is the hypocrisy in my opinion.

It's not clear from the article how many copies were made and who they went to. I could see making enough copies for each affected employee to be able to file their own lawsuit. If that is what they did, then I think it could still fall under fair use. On the other hand, if they made a bunch of copies so everyone could take them home for the purposes of reviewing the film against the expressed wishes of the filmmaker, then that would seem to be a violation. Unfortunately, the article doesn't make any of that clear, one way or the other.

[cal_tony]

HUMMMMMMMMMMMMMMMMM!!!!!

[Dv8ted2]

So, the mpaa should not bother folks who copy their personally purchased and owned dvd's as long as "They have not published it, released it, attempted to make any money off it, or make it available for download"?

Correct, they shouldn't.

I'm very comfortable with that - but I expect the mpaa would like to take some money from us for just thinking about copying a legitimately bought and paid for dvd for our own personal use. All they are saying here is - they think they had a good and valid reason for mass copying the dvd for the employees. Well - what if one of us mass copies a dvd for some group of people because it is relevant to that group somehow. That is the hypocrisy in my opinion.

It's not clear from the article how many copies were made and who they went to. I could see making enough copies for each affected employee to be able to file their own lawsuit. If that is what they did, then I think it could still fall under fair use. On the other hand, if they made a bunch of copies so everyone could take them home for the purposes of reviewing the film against the expressed wishes of the filmmaker, then that would seem to be a violation. Unfortunately, the article doesn't make any of that clear, one way or the other.

How could it be fair use, when the industry does not believe in Fair Use?

[gadgetguy]

Doesn't matter if they believe in it. Fair use exists.

[adam]

Gosh folks if this doesn't qualify as Fair Use than what does? What in the world do they possibly have to gain by making these copies except to preserve evidence should they need it? And what in the world does this hurt the guy except in the event it is used against him in a suit? Its a good faith copying, not only for personal use but for personal safety, and it has has no effect on the copyright holder. That's exactly the type of thing Fair Use is supposed to protect.

The only reason this incident is ironic is because of the party involved. Its not that the MPAA is in the wrong here, because they aren't at all. Its that they are getting a taste of their own medicine for a change. Reverse the roles and I guarantee that most of you would take the other side right?

Consider this scenario. Sony pictures decides to try the reality tv scenario on the big screen. They go around following a random family without their permission and attempt to showcase all of the negative aspects of their life. (The documentary in question does this to the MPAA.) The family reports them to the police and complains of potential stalking. (That's what several of the involved MPAA employees did). Sony temporarily lends the family a copy since they are the reluctant stars. They make a copy in the event they decide to go forward with charges of stalking. The MPAA, as representatives of Sony Pictures, now sues the family for copyright infringement.

See? We'd all be furious at the MPAA and rightfully so. What it boils down to is this. The MPAA has historically, and especially recently, had such a strict and unwavering position regarding the sanctity of copyright protection that it comes across as hypocritical for them to now suggest that an exception should be made for them. And yes, I do think its a bit hypocritical. But the fact is that they do not make the law, and copyright law DOES make exception for this type of activity regardless of who you are.

[lgh529]

I love it!!

She said Dick spied on the members of the MPAA's Classification and Rating Administration, including going through their garbage and following them as they drove their children to school.

Well, in the US it isn't against the law to follow people or go through their garbage, but if it was, I could then say that since the MPAA is invading my privacy to find out if I'm copying, it justifies me making the copies.

Also,

According to Mark Lemley, a professor at the Stanford Law School, the MPAA may have been within its rights to make copies of the film. Given that the MPAA's intent isn't financial gain...

Like others posted before me, I guess I can copy whatever I want if I havn't gotten any financial gain.

We need to keep this thread/story somewhere safe just in case we need it in court.

[adam]

That professor's quote is taken completely out of context. Non-commercial/financial gain is one aspect of just one of the prongs of Fair Use. He is not basing his claim that they "have a defense" soley on this. My opinion is that he is saying their lack of financial gain is what explains their action, what shows that they actually copied it for use as evidence rather than for any personal gain. Its just explaining the motive.

And for the record, I do not consider Mark Lemley or Stanford Law School to be biased in favor of the MPAA at all in this matter. If you read around, whenever the MPAA is accused of "bending" the law they always interview the EFF and Standford law professors to debunk the MPAA's legal reasoning.

Like I said, in this particular case the MPAA is probably in the right. They are just such jerks that no one ever wants to take their side.

[beric3236]

It makes me wonder about the FBI warning about making copies even tho no money passed hands. Besides the original belonged to the film maker(s) and not the MPAA. The lawyers are surely chomping at the bit to get into this one as they are the ones who will really make money gain. Agreed tho we should all watch this one very very close.

[waheed]

According to Mark Lemley, a professor at the Stanford Law School, the MPAA may have been within its rights to make copies of the film. Given that the MPAA's intent isn't financial gain and that the whole situation may rise above the level of trading barbs through the media into legal action, making a copy may be justified.

So according to the lawyers for MPAA, thats mean that if a person rents a movie, he/she can be within his/her rights to make copies of the film as long as its not for financial gain and making a copy may be justified.

Its exactly the same principle as I see it.

[FulciLives]

Making a single back-up or two (as a back-up of the back-up) is all they needed to make for legal use.

But no ... instead they make multiple copies for multiple employees ... if not ALL employees!

What the hell is that about ?!?!?!

- John "FulciLives" Coleman

[TaoTeWingChun]

Director Kirby Dick submitted the film for rating in November. After receiving the movie, the MPAA subsequently made copies without Dick's permission. Dick had specifically requested in an e-mail that the MPAA not make copies of the movie. The MPAA responded by saying that "the confidentiality of your film is our first priority."

OK, seeing as how I have some experience in this area, I can honestly attest that is is a big gray area here, and all depends on the timing.

If the Director (Kirby Dick) informed the MPAA in advance or concurrently with his film's submittal to the MPAA to NOT make copies of the film, then the MPAA's acceptance of his terms does constitute a binding agreement between the parties. In this case, the MPAA is indeed in breach of stated agreement, and is indeed liable for unauthorized duplication. However, if the film isn't copyrighted, the chances of a successful (read "meaningful") lawsuit brought against the MPAA may be slim, at best.

If the consent to the agreement, or the request that copies NOT be made occurred *after* the film was submitted, agreeing to those terms after the copies may have been made affords the MPAA the privilege of time to review and destroy those copies it may have already made. Failure to do this, especially in llight of their acceptance of the Director's wishes, absolutely constitutes a breach of the stated agreement, but they have a reasonable amount of time in which to do so without injury.

In either case, the MPAA doesn't look so good, and we should be wary of their motivations for 'fair use' definitions. Fair use does not over-ride written agreements. Period.

Of course, you must also keep in mind that famous saying:

"Money talks, bullsh*t walks"

Cheers!

TTWC

[Sabro]

hmmmm I wonder if he can submit John / Jane Doe suits and sue the entire MPAA on the assumption that every staff member was in possession of an illegal copy of his movie.

Works for the MPAA However, I have a feeling this is going to be swept under the rug with no results

Sabro

[ROF]

I think the guy is just looking to promote his movie by bringing a lawsuit. In any case the entire movie industry is based on running from the law due to breaking of copyrights. In the early 1900's the American Movie Industry moved west in order to avoid being jailed for copyright violations. Since then it's been one theft after another. No surprises here. I forget the title of the book I read on this subject because it's been several years since reading but if you do a search on the subject about Edison and movie industry copyrights I'll bet some of you will be surprised to learn how hollywood came to be.

[Snakebyte1]

I'm sure Kirby submitted the movie fully knowing they would copy it. Thta's why he told them not to copy it - to ensure they did!

Its like when you know your cousin steals cash and you deliberately leave out a $20 just so you can catch them and humiliate them in front of the whole family (Not that I'd do that... well, OK, maybe once. Actually it was twice - he was a slow learner - really he is just a stupid crook!!!)

[kicko]

LOL i wonder if they used decrypter to do that

[adam]

TaoTeWingChun the film was copyrighted the second they filmed it. But I honestly think that it is self evident that the MPAA's copying is exempted under Fair Use.

As for an exterior contract between the parties, it may exist and no Fair Use has no applicability here. But if the individual's actions amount to stalking than he would be estopped from asserting breach of contract or copyright infringement anyway. I don't see how he can sue for breach of contract since there are literally no damages. I can't even find an equitable remedy that is applicable. His only claim would be copyright infringement assuming he registered prior to infringement. (maybe that's what you meant.) That way he can claim statutory damages regardless of whether he has any actual damages or not, but again this is EXACTLY what Fair Use is intended to cover.

This is a publicity stunt and a damn good one. I think this filmmaker has a good future. But there will be no lawsuit.

[gadgetguy]

This is a publicity stunt and a damn good one. I think this filmmaker has a good future. But there will be no lawsuit.

Well said.

[mbellot]

Gosh folks if this doesn't qualify as Fair Use than what does? What in the world do they possibly have to gain by making these copies except to preserve evidence should they need it? And what in the world does this hurt the guy except in the event it is used against him in a suit? Its a good faith copying, not only for personal use but for personal safety, and it has has no effect on the copyright holder. That's exactly the type of thing Fair Use is supposed to protect.

Sounds exactly like the justifcation for personal backups of DVDs that you already own, but thats not considered Fair Use - is it?

1. The movie companies have nothing to gain, the movie has already been purchased.
2. Its for personal use and safety (in the event of mechanical malfunction the original is not destroyed).
3. Has no effect on the copyright holder, the backup is not being loaned/rented out or distributed via P2P.

Hooray for Fair Use.

If the MPAA wanted to live within the letter of the law and not cause such a broohaha they should have brought all the employees together for a private showing using the one legitimate copy they were given. :P