Copyhype

A funny thing happens when one reads about how “content industries hate technology.” See if you can tell what it is:

Historically, intellectual property rights holders had a tendency to initially complain about the adverse impact of new technologies only to find them later opening up new markets for their products and services. For example, well-known American composer John Philip Sousa testified before Congress about the challenge created by the manufacture and sale of phonograph records:

When I was a boy . . . in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cords will be eliminated by a process of evolution, as was the tail of man when he came from the ape”

… Decades after Sousa’s testimony, the late Jack Valenti, the long-time lobbyist for the U.S. movie industry, made the same mistake. In his effort to lobby against the manufacture and distribution of videocassette recorders, he declared that the new device was “to the American film producer and the American public as the Boston strangler [was] to the woman home alone.”

Peter K. Yu, Digital Copyright and Confuzzling Rhetoric, 13 Vanderbilt Journal of Entertainment and Technology Law 881 (2011)

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Moving into the 20th century, the claims about technology as a threat to content came fast and furious. The threats in the first decades of the 20th century were the player piano and the gramophone. John Philip Sousa wrote an article, The Menace of Mechanical Music, in which he argued that those infernal devices were a “threat to his livelihood, to the entire body politic, and to ‘musical taste’ itself. . . . The player piano and the gramophone [ ] strip[ ] life from real, human, soulful live performances.”

… By the late 1970s we get to the example that is perhaps the most familiar: the VCR. The free television model, augmented by cable, had been established for some time. Along came a technology that allowed people to copy this freely provided television content and do what they wanted with it. The content industry warned us that the VCR must be stopped. Here is Jack Valenti of the MPAA, speaking to Congress:

[T]he VCR is stripping . . . those markets clean of our profit potential, you are going to have devastation in this marketplace. . . . We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.

If that were not enough, he went on to say, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Mark Lemley, Is the Sky Falling on the Content Industries? 9 Journal on Telecommunications and High Technology Law 125 (2011)

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Over 100 years ago, the famous composer John Philip Sousa tried to block two new technologies, the gramophone (phonograph) and the player piano. In 1906, Sousa testified before Congress about his concerns: he “viewed the mechanical reproduction of music as an ominous threat.”

In an article attacking the new technologies, Sousa warned of “a host of other injuries to music . . . by virtue – or rather by vice – of the multiplication of the various music-reproducing machines.”

… In 1976, two movie studios sued Sony Corp. to try to block sales of Sony’s Betamax, a videocassette recorder (VCR or VTR), in probably the most famous example of the content industries’ attempts to block new technology. Overstatements about the supposed effects of the VCR were rampant. As quoted above, Mr. Valenti likened the VCR to the “Boston strangler.”

Viacom v. YouTube, Amicus Brief of Consumer Electronics Association (2nd Cir. 2011)

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Copyright owners have greeted every new technology with panic. At the turn of the 20th century, sheet music publishers viewed the player piano, which used copyrighted sheet music in the pianos (and threatened to reduce revenue) with great alarm. John Philip Sousa bemoaned the introduction of the technology, predicting “a marked deterioration in American music and musical taste, an interruption in the musical development of the country, and a host of other injuries to music in its artistic manifestation.”

Eight decades later, Jack Valenti, then the head of the Motion Picture Association of America (MPAA), warned that the market for copyrighted movies would be “decimated, shrunken [and] collapsed” by the VCR, and that “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Viacom v. YouTube, Amicus Brief of Michael Carrier (2nd Cir. 2011)

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In the last century or so, which industry has a habit of being hysterical and hyperbolic about copyright issues… and which has a history of being right. Let’s start about a century ago, with John Philip Sousa, the composer. In 1906, he went to Congress to complain about the infernal technology industry and how it was going to ruin music:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

… Jump forward a decade or so, and we have the infamous statement of Jack Valenti comparing the VCR to the Boston Strangler:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Mike Masnick, A History of Hyperbolic Overreaction to Copyright Issues, TechDirt (Nov. 9, 2011)

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Besides, this is just another line like Valenti’s old “Boston Strangler” line. People who don’t know or understand culture or history always blame the new technology for “killing” off the old industry. The reality — as shown time and time again — is that it actually enhances and grows that industry. You see it again and again. The sheet music industry insisted the player piano would kill the music business. John Philip Sousa insisted that the phonograph would kill the music industry, because with it, no one would ever learn to play music or want to hear live music again.

Mike Masnick, What Happens When You Get Two Internet Haters Together? An Interview that Kills Brain Cells, TechDirt (Nov. 2, 2011)

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The second reason for the threats to innovation is copyright owners’ panic upon the introduction of new technologies. John Phillip Sousa thought the player piano would lead to “a marked deterioration in American music.” Jack Valenti famously thought the VCR was to the American public as “the Boston strangler is to the woman home alone.”

Michael Carrier, Why Innovation is Under Attack, TechDirt (May 13, 2011)

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At the turn of the last century John Philip Sousa argued that the gramophone was a grave threat to musicians. How could musicians earn a living if the public were free to listen to music in our homes?

… In the early 1970’s the Motion picture association argued that the video recorder would make the film and television industry “bleed and bleed and haemorrhage”, their president, Jack Valenti, claimed the VCR was as great a threat to film producers as the Boston strangler was to women home alone.

Conor Mulhern, Making money the only way they know how, conormulhern.com (May 2, 2011)

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New technology has always caused great distress for copyright owners, going all the way back to 1903, American composer John Philip Sousa was worried the player pianos would destroy music as they then knew it. After that each new technological advancement which created a new method of transmitting information met fierce opposition from the content industry of the time from the radio, to the cassette tape to Mp3′s its always the same story. Not that all of their concerns were unwarranted or unfair but the rhetoric has at times been laughable. My personal favorite is this gem:

“I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” ~ Jack Valenti, Former President MPAA

t3chjurist, Us, Them and Copyright, techjurist.wordpress.com (Feb. 23, 2011)

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Other companies, and their trade associations, instead attempt to avoid change of any sort. To quote Jack Valenti, the past President of the Motion Picture Association of America, in his testimony to the U.S. Congress about Video Cassette Recorders:

I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.

… Every Disruptive Technology has caused a reaction like Jack Valenti’s by the Corporations involved. Artists have also fought these new means of production and/or distribution. In a submission to Congress about the new-fangled phonograph John Philip Sousa, the great American Composer and Conductor said:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

Wayne Borean, An Explanation of my Views on Copyright Part One, madhatter.ca (Sept. 7, 2010)

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Home-use VCRs were available as far back as 1963, but didn’t catch on until mass-production dropped the price in the late 1970s. In an almost unrelated note: Shortly afterwards Jack Valenti, head of the MPAA, completely lost his shit.

Appearing before Congress–flecks of spittle presumably slinging from his red, swollen face and melting caustic holes into the floor–he proceeded to proclaim in all seriousness that “…the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

…Pirated music is hardly a new development. In fact, there have been Metallicas in every age of man, making loud and opinionated asses out of themselves every time somebody accidentally coughs a note they once thought of using in a song. In this case, we’re referring to the “March King” himself, John Philip “Stars And Stripes Forever” Sousa.

In this piece first published in Appleton’s Magazine in 1906, Sousa argues that, “…I myself and every other popular composer are victims of a serious infringement on our clear moral rights to our own work…”

Ralf Bakr, 5 Insane File Sharing Panics from Before the Internet, Cracked (May 7, 2010)

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The gramophone (or phonograph) was unleashed upon a music industry that reacted with predictable fear. The composer John Philip Sousa said:

These talking machines are going to ruin the artistic development of music in this country… We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

… The film industry has a similar fear-filled history. In the 1980s, Jack Valenti, president of the Motion Picture Association of America said:

…the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Jeremy Keith, Fear is the Mind-Killer, Adactio (May 2, 2010)

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Content owners have railed against technological change since before Big Content even existed, from John Philip Sousa’s denouncing of the player piano to former Motion Picture Association of America chief Jack Valenti’s famous comparison of the VCR to the Boston Strangler.

Cory Ondrejka, “Big Brother” versus “Little Brother”: Two Possible Media Futures, Futurist Magazine (March 1, 2010)

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Hyperbole has characterized rights holder reaction throughout, from John Phillip Sousa complaining to the US Congress in 1906 that player pianos:

“are going to ruin the artistic development of music in this country…The vocal chord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

… to Jack Valenti, as President of the Motion Picture Association of America, testifying before the US House of Representatives in 1982 that:

“the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone”.

Open Rights Group Briefing: Illicit P2P file sharing (2009)

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Motion Picture Association of America (MPAA) President Jack Valenti made the following statement to a U.S. Congressional panel in 1982:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Yet the reality is that home video viewing, beginning with the VCR and later the DVD player, ultimately came to be the mainstay of movie studio revenues throughout the 1980s, 1990s and into the 2000s. British copyright commentator Tom Watson recently made these insightful observations on a similar phenomenon that occurred much earlier:

In 1906, composer John Phillip Sousa testified before the US Congress that the technological advance of his day would not only “ruin the artistic development of music” but also cause the vocal chord “to be eliminated by a process of evolution”.

Bell, Rogers, Shaw and TELUS, Submission on update to Copyright Act, Copyright Consultations, Canada (2009)

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Similar predictions have arisen around every new technology for communicating ideas. John Philip Sousa argued passionately that musical recording would be the end of human singing, and Jack Valenti (then president of the Motion Picture Association of America) compared the video recorder to the Boston Strangler in its anticipated effect on the movie business.

Kevin L. Smith, Books and reading in the Google age, News & Observer (Nov. 30, 2009)

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In 1906, famous composer John Philip Sousa took to Appleton’s Magazine to pen an essay decrying the latest piratical threat to his livelihood, to the entire body politic, and to “musical taste” itself. His concern? The player piano and the gramophone, which stripped the life from real, human, soulful live performances. … In 1982, when the movie and music businesses were engaged in a full court press to shut down the hot new VCR, the warnings about its sinister effects made Sousa sound like a wimp.

Chief movie lobbyist Jack Valenti appeared at a Congressional hearing on the VCR and famously went hog-wild. “This is more than a tidal wave. It is more than an avalanche. It is here,” he warned after reciting VCR import statistics.

… One lobbyist (rightly) contended that “the VCR is the greatest friend that the American film producer ever had,” to which Valenti responded, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Nate Anderson, 100 years of Big Content fearing technology — In its own words, Ars Technica (Oct. 11, 2009)

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Emerging technology has often appeared as a bad omen to copyright owners. In 1906, three years before the enactment of the 1909 Copyright Act, famed American composer John Philip Sousa expressed his fears over the invention of player pianos when he said, “I foresee a marked deterioration in American music … and a host of other injuries to music in its artistic manifestations, by virtue–or rather by vice–of the multiplication of the various music-reproducing machines… .”

… Following the U.S. Supreme Court’s decision in Universal City Studios v. Sony Corporation of America, Jack Valenti, former-president of the Motion Picture Association of America (MPAA), foresaw the doom of the movie and television industries in the rise of the VCR: “I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.”

Marques S. Johnson, Negotiating Digital: XM Satellite Radio, the AHRA, and Keeping Copyright Balanced, 51 Howard Law Journal 397 (2008)

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During testimony, MPAA CEO Jack Valenti, in a performance that was worthy of an Oscar, famously said the following:

“the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

… This was not the first time, or the last, that the entertainment industry has attempted to use the courts in order to eradicate a technology from existence. While the Betamax case has been the most important decision in years, and arguably the most widely known, there have been other cases that were just as significant. The industry has been short-sighted since its infancy.

In 1906, songwriters objected to the release of the player piano. John Philip Sousa, a famous American composer and conductor who was widely known for his various American military marches, had the following to say about the introduction of the player piano:

“I foresee a marked deterioration in American music and musical taste, an interruption in the musical development of the country, and a host of other injuries to music in its artistic manifestations, by virtue — or rather by vice — of the multiplication of the various music-reproducing machines.”

Scott Jarkoff, Embracing File-Sharing is Essential for Industry Survival, Piratpartiet (July 24, 2006)

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“I forsee a marked deterioration in American music…and a host of other injuries to music in its artistic manifestations, by virtue—or rather by vice—of the multiplication of the various music-reproducing machines…”

–John Philip Sousa on the Player Piano (1906)

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“But now we are faced with a new and very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the videocassette recorder.”

–MPAA on the VCR (1982)

You’ve Heard This Song Before! Consumer Electronics Association advertisement, Roll Call (June, 2006)

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“I foresee a market deterioration of American music and musical taste. An interruption of the musical development of this country and a host of other injuries to music and its artistic manifestation by and the virtue who are riding the vice of the multiplication of these various music reproducing machines.”

This was Mitch [Glazier] last week. Just kidding, this was John Philip Sousa in 1904, over a hundred years ago when he came to Congress, asking that it stop the production of these player pianos because they were going to be the death of the music industry. If you look back historically that was the same reaction that the music industry and Hollywood had to music on the radio, television and VCR. I remember the Betamax was to the American movie industry what the Boston Strangler is to the women at home, according to Jack Valenti, TiVo, the MP3 player and so forth.

Progress & Freedom Foundation, The Role of Music Licensing in a Digital Age (Michael Petricone remarks), Progress on Point 13.18 (July 2006)

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But the entertainment industry has been crying wolf for a century, ever since John Philip Sousa claimed that the player piano spelled the end of music in America. Each new technology has been attacked as a grave threat to the sanctity of copyright, yet somehow the sanctity of copyright has survived. The Sony case again provides the best illustration of this fact. The Chairman of the Motion Picture Association of America testified before Congress that the motion picture industry would suffer devastating financial losses if the VCR were not strangled at birth. (“[W]e are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. . . . I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”)

MGM v. Grokster, Amicus Brief of National Venture Capital Association (S.Ct. 2005)

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When the phonograph hit the US market, conductor and military composer John Philip Sousa claimed in front of Congress that, along with hurting his business, it would deprive us of our ability to speak: “We will not have a vocal chord left. The vocal chord will be eliminated by a process of evolution, as was the tail of man when he came from the ape!” In 1982, Jack Valenti, then spokesman for the MPAA, stood in front of the same body, calling the VCR “the Boston Strangler” of the American film industry, alleging it was quietly killing American filmmakers.

Alex Aylett, Copy That, This Magazine (July 2005)

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This is really part of a much longer historical set of fights between new technologies and the entertainment industry, going back at least to the player piano at the dawn of the 20th Century. No less a figure than John Philip Sousa, the famous American composer, said “The player piano will be the end of music in America.” … that’s exactly the mantra they came up with during the fight over the VCR, and Jack Valenti, who was then head of the Motion Picture Studios, famously said that the VCR was to the movie studio as the Boston Strangler was to a woman alone.

The Shape of Film to Come (remarks of Fred von Lohmann), On the Media (April 1, 2005)

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Exhibit I-1: Piracy Panics V. Technological Progress: Economic & Moral Catastrophes are Always about to Befall the Entertainment Industry

John Phillip Sousa, “The Menace of Mechanical Music,” Appleton’s Magazine, Vol 8 (1906)

…I foresee a marked deterioration in American music and musical taste, an interruption in the musical development of the country, and a host of other injuries to music in its artistic manifestations, by virtue — or rather by vice — of the multiplication of the various music-reproducing machines…

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Jack Valenti, “Home Recording of Copyrighted Works,” Committee on the Judiciary, United States House of Representatives, April 12, 1982

… I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Mark N. Cooper, Time for the Recording Industry to Face the Music: The Political, Social and Economic Benefits of Peer-to-peer Communications Networks, Consumer Federation of America, et al. (March 2005)

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In the propaganda campaign that preceded the Betamax case, Jack Valenti, president of the Motion Picture Association of America, declared that the video recorder was ‘to the American film producer and the American public as the Boston strangler is to the woman home alone’. Strange, then, that video rentals went on to become the film industry’s main source of revenue.

Established interests have never much liked innovation. Back in 1906 the composer John Philip Sousa predicted ‘a marked deterioration’ in musical tastes as newfangled gramophones ‘reduce the expression of music to a mathematical system of megaphones, wheels, cogs, disks, cylinders and all manner of revolving things’.

David Rowan, MGM v. Grokster (op-ed), The Times Magazine (March 26, 2005)

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Several examples are telling. At the turn of the twentieth century, the invention of the player piano sparked much concern on the part of musical composers. In fact, renowned American composer John Philip Sousa published an editorial in 1906 attacking the player piano, declaring that it represented a threat to copyright owners and, indeed, the future of music in America. Of course, the player piano ultimately gave way to the phonograph, from which the entire modern music industry arose.

More recently, the motion picture industry attacked the video cassette recorder (VCR) as a threat to the future of film. In 1982, Jack Valenti, then-head of the Motion Picture Association of America (MPAA), famously declared, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

EFF, Letter to FTC (Jan. 18, 2005)

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Jack Valenti, the head of the Motion Pictures Association of America, testified before Congress, and if you’ve seen him before Congress he often looks like this, and he said in 1982 to the Congress the following: “The VCR is to the American film producer and the American public as the Boston strangler (the notorious serial killer) is to the woman home alone.” Now that’s pretty strong rhetoric. But it’s not unprecedented in the history of copyright and technology in this country. When the phonograph was invented we heard the same kind of complaints from the music industry of the time. John Philip Sousa went before the Congress in 1906 and he said this: “These talking machines (meaning phonographs) are going to ruin the artistic development of music in this country. When I was a boy in front of every house in the summer evenings you would find young people together singing. Today you hear these infernal machines going night and day. We will not have a vocal chord left.”

Edward W. Felten, “Rip, Mix, Burn, Sue: Technology, Politics, and the Fight to Control Digital Media” (lecture) (Oct. 12, 2004)

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Predictably, the composers and music publishers went nutso. Sousa showed up in Congress to say that:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal chord left. The vocal chord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

… Jack Valenti, the mouthpiece for the motion-picture industry, told Congress in 1982 that the VCR was to the American film industry “as the Boston Strangler is to a woman home alone.”

Cory Doctorow, Microsoft Research DRM talk (June 17, 2004)

Everyone wins when copyright law adapts to new technologies

Did you catch it?

But on a serious note, the myth that “content industries hate technology” fails for several reasons. It requires fabricating a group (“the content industry”), ascribing a broad characteristic to it (“hates technology”), and then pulling together disparate quotes from anyone who has stated a concern over some new technology as proof of the theory.

And, ironically, the myth neglects the fact that in most cases, copyright law in the past adapted to new technologies.

In the case of Sousa, for example, while he admitted at the time that his remarks may have been a bit over the top, his primary concern was that gramophone manufacturers were appropriating his work without compensating him. ¹In the essay quoted many times above, Sousa writes “I am quite willing to be reckoned an alarmist”, but “Could anything be more blamable, as a matter of principle, than to take an artist’s composition, reproduce it a thousandfold on their machines, and deny him all participation in the large financial returns, by hiding back of the diaphanous pretense that in the guise of a disk or roll, his composition is not his property?” Just a few years after his essay and testimony, Congress revised the Copyright Act to provide that mechanical reproductions of musical compositions were part of a copyright holder’s exclusive rights. The result was the recording industry — which greatly benefited composers, recording artists, technology manufacturers and the general public.

Similar stories played out with other technologies, like radio ²A series of court decisions in the early 1920s, including M. Witmark & Sons v. L. Bamberger, 291 Fed. 776; Remick & Co. v. American Automobile Accessories, 5 F.2d 411; and Remick & Co. v. General Electric, 16 F.2d 829, solidified in law the proposition that a radio broadcast of a musical composition is a public performance. and cable television. ³The 1976 Copyright Act provided that retransmission of a broadcast by a CATV operator constitutes a public performance; see Capital Cities Cable v. Crisp, 467 US 691, 709 (1984). Again, the law adapted, the creative and technology companies thrived, and the general public and consumers benefited.

In all cases, the opposition is not to new technologies, but to those who think the introduction of a new technology gives them the privilege of misappropriating someone else’s work.

Just something to keep in mind the next time someone trots out Sousa and Valenti to oppose legislation to adapt copyright law to new technology.