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WRITING SAMPLE #2

Erickson, Mary. (2007). “Framing issues of piracy and copyright: The Motion Picture Association of America’s testimonies at Congressional hearings.” Poster presented at the International Communication Association conference, San Francisco, CA. May 2007.

Abstract

This paper examines the role of the Motion Picture Association of America (MPAA) in Congressional policymaking processes since 1976, specifically in terms of witness testimony delivered at Congressional committee hearings pertaining to piracy and copyright issues. The MPAA’s participation at these hearings can be understood within two frameworks: that the MPAA creates myths and rationales to justify dominance over others; and that the MPAA represents an empathic citizenry, serving to stimulate what it perceives as successful governance. Furthermore, the organization’s message consistency over the past thirty years has strengthened its framing of copyright and piracy issues within these two frameworks. This consistency has also reinforced the MPAA’s position as policy expert in Congressional hearings pertaining to these issues. Introduction

In 2004, the Motion Picture Association of America, the trade association that represents

six major American motion picture studios, began its search for its first new Chairman and CEO

in forty years. It was a crucial time for the MPAA as movie piracy and copyright infringement

rampantly plagues the industry. Although the association’s constituents are located primarily in

Hollywood, the search committee deemed it essential that the Chairman be “somebody who

knows their way around Washington” (Larsen, 2004). The MPAA’s presence on Capitol Hill had

been essential to the motion picture industry for decades and was only becoming increasingly

important. The MPAA finally settled on former Agriculture Secretary Dan Glickman, someone

with no movie-related experience but plenty of ties in Washington.

The central reason why the MPAA insisted upon someone with an intimate familiarity

Capitol Hill is that the association is highly dependent upon its involvement with Congressional

Mary Erickson Writing Sample #2

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hearings in order to influence media policy. A formidable American (and increasingly global)

industry, the film industry urges legislators to safeguard its economic health. Its uncontested

status as a powerful interest group lobbying in Washington (former Chairman Jack Valenti was

reportedly the highest-paid lobbyist in 1992) makes the MPAA an ideal case through which to

examine interest group involvement in Congressional committee hearings (Lee, 1992).

This paper examines the role of the Motion Picture Association of America in

Congressional policymaking processes since 1976. I will specifically focus on witness

testimonies of MPAA representatives at committee hearings in order to understand how the trade

association has framed its testimonies in order to influence policy, primarily looking at the

hearings that pertain to copyright and piracy issues. The broader goal of this project is to

understand how and why interest groups affect the legislative policymaking process through

witness testimony.

I will offer a brief history of movie piracy and the MPAA as a backdrop to thirty years of

witness testimony. An in-depth analysis will follow of witness testimonies, and of the MPAA’s

testimonies in particular. Here, I will examine how the MPAA utilizes certain messages to frame

the issues of piracy and copyright in order to justify the motion picture industry’s position of

economic and cultural privilege, as well as the industry’s self-imposed role as representative of

the public interest.

A Brief Survey of Relevant Literature

The impact of witness testimonies in Congressional committee hearings has only

received brief scholarly attention. Schneier and Gross (1993) touch on testimonies and witnesses

in their larger project of how policy is navigated through the legislative process and the power


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struggle that emerges through that process. Leyden (1995) proposes that the kinds of groups who

give testimonies are generally those with large bases of organizational resources. Strine (2006)

finds that committee members treat celebrity witnesses more positively than their non-celebrity

counterparts. Burstein (2002) examines the role of information gathered via testimonies on

policy, concluding that witness testimonies do not influence policy as much as witnesses think.

National and global attention on piracy of copyrighted works has increased, scholarly

literature has begun to reflect that attention. Much of the work thus far is a concerted effort to

comprehend the complexity of the issue and to establish the parameters of the debate. Kerry

Segrave’s book, Piracy in the Motion Picture Industry (2003) contextualizes movie piracy in a

historical overview of the industry’s attempts to deal with the issue. Several country- or region-

specific case studies have been written pertaining to so-called hotbeds of movie piracy; Russia

(Beumers, 1999), China (Wang, 2003a), East Asia more generally (Pang, 2004; Wang, 2005),

and Nigeria (Larkin, 2004) are focal points of such case studies.

In a comparatively early work on movie piracy, D’Alessandro (1987) prescribes “creative

deal-making on the part of the motion picture industry and creative lawmaking on the part of the

government” to combat overseas movie piracy (464). The author does not, however, examine the

intersection of those two groups or how motion picture industry representatives might influence

legislation or policy through participation in Congressional activities. Wang (2003b)

hypothesizes a renewed state role in trade policy as it pertains to film piracy, even hinting at the

potentially sizeable role that the MPAA plays in policymaking, particularly in international

trade-related issues. That line of questioning does not develop further, however, as Wang’s

project is to examine the adequacy of existing theoretical frameworks to analyze global trade of

intellectual property.


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Indeed, the MPAA’s contemporary presence in Washington is still rarely examined;

accounts of the MPAA’s early days as forbearer of censorship are more common, such as

Bernstein’s Controlling Hollywood: Censorship and Regulation in the Studio Era (1999) and

The Censorship Papers: Movie Censorship Letters From the Hays Office, 1934-1968 (Gardner,

1987). Miller et al (2001) examine briefly how the U.S. legislature supports the film industry in

anti-piracy efforts, noting that Hollywood actively supports trade policy that ensures copyright

protection. Yar’s (2005) work begins to unpack some of the assumptions of movie piracy in light

of several factors, including the increase in the number of consumed media goods, globalization

and technological change. Specifically, Yar points to the methodological problems of compiling

piracy data, which generally does not taken economic or political contexts into account.

Methods of Study

The MPAA produces its own press releases to announce its position on a given issue; PR

documents about piracy and copyright are abundant. One could undoubtedly arrive at many of

the same conclusions from an examination of press releases as when witness testimonies are

consulted. Witness testimonies are more valuable for the purposes of this paper, however,

because they address proposed legislation very specifically. As well, they cover concerns around

piracy and copyright with more candor than a press release could muster, particularly about the

realities of business operation.

I have isolated my study to focus on prepared statements delivered via witness testimony.

This enables me to pinpoint exactly how the organization frames its perspective without clouding

that perspective with responses to questioning from committee members. This study is not

intended to be a systematic quantitative study of witness testimony; rather, it is a comprehensive


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document analysis that will provide valuable insight into the processes by which Congress

gathers information with which to devise policy by examining who provides information and

how it is presented. It is useful to analyze these processes through the lens of a major trade

organization that represents an industry with unique goods and services such as the motion

picture industry. The MPAA’s visibility and consistent message delivery in Congressional

hearings over the course of three decades signals an ideal case study. I will select certain

passages from various testimonies that most adeptly illustrate how the MPAA frames its

arguments.

1976 is an appropriate date at which to begin examining MPAA witness testimonies

delivered at Congressional committee hearings. It was at this time that Congress debated and

finally enacted the Copyright Act of 1976, which sought to address technological development in

the evolution of the domain of copyright. The act’s narrowness of interpretation, however, meant

that inevitably it would be challenged and amendments would be proposed. Because the movie

industry hinges on the protection and enforcement of copyright for much of its survival, it is

logical that the MPAA would become much more aggressive with its lobbying efforts in

Washington during this time.

Piracy and the Motion Picture Association of America

Piracy as a term to describe the unauthorized use of motion pictures has been used since

the industry’s infancy. Reference to the act of film piracy showed up as early as 1907 in trade

magazine articles like Moving Picture World such as “Films Pirated and Duped” and “Who is

Pirating Films?” (Allen, 185). Early examples of piracy stemmed from what Jane M. Gaines

(2006) called “a solution to the problem of too little product to meet the demand for ‘moving


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pictures’” (Gaines, 228). With the film industry still in its infancy, producers and exhibitors

looked to their competitors for material to offer eager audiences. A popular story could be

reproduced multiple times, as was Louis Lumière’s L’Arroseur arrosé (The Waterer Watered);

over the course of five years, duplicate prints of this film appeared from various French, English

and American production companies under different titles like Le jardinier (The Gardener),

Arroseur et arrosé (Waterer and Watered), Bad Boy and the Garden Hose, and Gardener with

Hose, or the Mischievous Boy (Gaines, 235).

The Motion Picture Producers and Distributors of America (later to become the Motion

Picture Association of America) was created in 1922 as a trade organization to represent the

major film studios in the United States. Former Postmaster General Will Hays led the charge to

address the unique characteristics of the movie industry. The Hays Office, as the MPPDA was

informally known, has historically been recognized primarily for its implementation of a

production code to deal with censorship issues; after all, its creation was borne initially out of

criticisms that the movie industry was immoral and corrupt. However, the stated objective in its

Certificate of Incorporation encompassed a broader range of activities, including “reforming

abuses relative to the industry [and] securing freedom from unjust or unlawful exactions”

(Moley, 226). Essentially, the MPPDA’s creation was an effort for the industry to keep control

and regulation out of the hands of government because, primarily, “the arts, of which the motion

picture is one, demand autonomy within their own sphere” (Moley, 54).

One area that the MPPDA had trouble addressing, however, was the exploitation of

distribution exhibition contracts. One provision of the organization’s mission was that it “has no

jurisdiction or control over the internal affairs or business policies of its members” (quoted in

Moley, 227). Exhibitors often engaged in “bicycling” or “switching” practices, and the affected


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distributors had no recourse through the MPPDA to stop the practice that was costing them an

estimated $10,000,000 every year (Moley, 191). The MPPDA facilitated industry conversations

to address the issue, but it was not until the Federal Trade Commission got involved that

distributors in the industry formed an organization to deal with issues of bicycling and switching.

The Copyright Protection Bureau was created in 1927 to “ferret out such abuses wherever they

appeared, to advocate the correction of unsatisfactory methods of booking, billing and the like

and to teach the trade the commercial value of honest dealings” (Moley, 196). Its job was

primarily to bring lawsuits against those violating exhibition contracts. “Apart from the legal and

practical necessity of keeping such activities outside the Hays Office, it also proved to be a

matter of sound public policy to separate them sharply” (Moley, 196).

A major shift at the MPPDA occurred in the 1960s when it appointed former presidential

aide Jack Valenti in 1966, the choice of whom reflected “the realities of power [that] still

required a man with influence in Washington” (Sklar, 296). The result was a transformation to

the Motion Picture Association of America (MPAA) and the beginning of a 38-year reign of

Valenti, a formidable and indefatigable proponent for the motion picture industry. This shift

would also soon herald the intensification of a cohesive Congressional lobbying concerning

legislation related to the movie industry, particularly around issues of copyright and piracy.

Most problematic for studios was the rapid advancement of technologies like cable

television, the videocassette recorder and, later, computers and the Internet. Home video changed

the landscape of movie piracy in profound ways. Early on, the MPAA recognized its potential

for illegal copying: “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” (United States [U.S.],

1982). The Copyright Act of 1976, which substantively revised copyright legislation, was


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designed to deal with these developing technologies in ways that its 1909 predecessor could not.

The act was, however, destined to fail in significant ways. “Most of the 1976 act’s limitations on

copyright owners’ expansive rights were cast in narrow, specific language. Yet, in order to

answer the questions that the future will present, a statute needs flexible language embodying

general principles” (Litman, 57). Thus, the MPAA and other interested parties lobbied for

proposed amendments to the Copyright Act of 1976 to address new technologies in ways that

would benefit them. This effectively heralded an era of increased participation in legislative

committee activity.

The association’s attention to the issue of piracy in the 1980s is evident in their financial

investment in tackling the problem; the MPAA’s budget for anti-piracy activities, at $1.5 million

in 1980, rose to $20 million in 1988 (Segrave, 116). It supported various governmental measures

to address piracy, including President Reagan’s Omnibus Trade Act in 1988, which restricted

U.S. market access for those countries that violated U.S. intellectual property rights. While the

MPAA needed the assistance of the federal government to combat international copyright

violations, it relied on states and law enforcement agencies to combat domestic piracy through

litigation and FBI raids, among other tactics. But just when the MPAA began to hone its process

for combating piracy, the digital video disc (DVD) was introduced, again changing the

technological landscape of movies, and the MPAA renewed legislative efforts to influence

policy.

This process has intensified in the past decade with computer and Internet technology.

Internet-related Congressional proposals with which the MPAA has been involved have ranged

from issues like imposing taxes on the Internet in 1997 and webcast programming in 2000 to file

sharing on peer-to-peer networks in 2003 and rights of digital media consumers in 2004 (U.S.,


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1997, 2000b, 2003b, and 2004b). The MPAA’s involvement with these issues denotes its

commitment to combating piracy and controlling how the film industry’s goods and services are

used. As will be discussed in this paper, they have reinforced this commitment through

Congressional hearing testimony over the past thirty years.

Today the MPAA represents six major American film studios: Warner Brothers, Disney,

Sony Pictures, Paramount, Universal, and Twentieth Century Fox. These studios control 94

percent of the American film industry market share (“SIC 78 – Motion Pictures,” 2005, 3460). It

must be noted, however, that the MPAA does not represent the entire film industry in the U.S.;

there are several fairly significant independent studios that are not represented, such as Lionsgate

Films. The trade organization has taken a conspicuous position within legal and legislative

debates over piracy and copyright infringement; however, although policy is intended to apply to

all film studios, the MPAA only lobbies in the interests of its member studios.

A Four-Pronged Approach to Combating Piracy

There are three main forms of movie piracy as identified by the MPAA today; these

include Internet piracy (movies downloaded primarily from peer-to-peer networks), optical disc

piracy (illegally copied DVDs), and camcorder piracy (recording movies with camcorders in

theaters). DVD piracy is by far the most problematic, particularly internationally, with losses to

the movie industry estimated at $3.8 billion in 2005 (MPAA, 2006a). According to the MPAA,

Internet piracy is quickly joining DVD piracy in its prevalence, and an estimated $2.3 billion was

lost in 2005.

The MPAA proposes a four-pronged approach to combating a problem that has plagued

the industry since its inception, which include: enforcement, technology, education, and


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litigation and legislation (MPAA, 2006a). The MPAA, working with law enforcement, have shut

down numerous Internet file-sharing sites and confiscated counterfeit DVDs. The MPAA’s

technology efforts pursue alternative ways of offering downloadable content online through

sanctioned websites like iTunes and CinemaNow. Educational efforts, particularly those in

recent years, have focused on preventative measures aimed at the average movie audience

member who may not be aware of the illegalities of movie piracy; piracy awareness campaigns

areas or groups most prone to committing piracy.

Litigation and legislation are the fourth component of the MPAA’s anti-piracy strategy.

The MPAA directly sues individuals and businesses involved with piracy; a landmark suit was

resolved in January 2006 when “international motion picture pirate leader Randolph Hobson

Guthrie III plead guilty in a Mississippi federal court to conspiracy to traffic in counterfeit goods,

forfeiting $800,000 to the U.S. government” (MPAA, 2006a, 7). In addition to cases such as this,

the MPAA relies on a continued and visible presence in Congressional committee hearings in

order to safeguard its interests when issues of copyright and piracy are discussed. Witness

testimonies at these hearings are central to the MPAA’s anti-piracy strategy.

Legislative Committee Hearings and Witness Testimonies

The legislative committee represents a division of labor in Congress, in which members

ideally have some level of expertise with the subject matter over which their committee holds

jurisdiction. In further division of labor, committees oversee subcommittees, both of which may

emerge from not only the efforts of pressure groups but also the personal and electoral goals of

Congressional members. The committee gathers information regarding a particular policy area


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in hearings and is even authorized to make substantive policy decisions in committee meetings

(Schneier and Gross, 49-50).

Within these hearings, witness testimonies are opportunities for interested parties

(interest groups or state or local governments, for example) to convey their views regarding the

policy area; they are also often viewed as a chance to frame a given debate in terms that benefit

their own constituents or clients. As Burstein (2002) points out, testimonies also “provide

information that may be seen as relevant to members of Congress trying to estimate how their

actions on the proposal would affect their electoral chances” (Burstein, 12). Burstein finds,

however, that there is little statistical evidence to support the hypothesis that witness testimony

information has much bearing on Congressional action in policy-making. Despite this finding,

key interest groups still participate in the hearing process because “there is little doubt that

committees wield enormous influence at the margins of legislation in their domains” (Schneier

and Gross, 181). The hearing process operates as a “crucial point of direct contact with members

of Congress” (Schneier and Gross, 171).

Therefore, those that are afforded direct contact are the ones framing the hearing debate

in their favor; those excluded from the hearing are left to deliver their messages in other forums.

It is important to recognize how and why certain groups are selected over others to deliver

testimony. Leyden (1995) believes that organizational resources determine involvement; if an

organization can establish a steady presence in Washington, often determined by financial

resources, it will most likely be afforded access to hearings. Schneier and Gross write that the

same people or groups are included in hearings on similar issues, partly because they build their

reputation through hearings as that issue’s ‘expert’. These same people are invited also in part

because they are most familiar with the legislative hearing process. It follows then that certain


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groups tend to be excluded more often; grass roots witnesses are called in on occasion, but they

often serve as token witnesses, coached and humored in their participation. Certain viewpoints

also have the potential of being excluded or marginalized from hearings concerning particularly

contentious issues in order to stack the hearing in one direction. Indeed, “stacking is a common

practice to allow the committee to control the hearings and to encourage a particular definition of

the problem” (Talbert, Jones, and Baumgartner, 1995, p. 389).

The Motion Picture Association of America participates in Senate and House hearings

because its industry is often quite dependent upon policy developed through committee work.

Most frequently, MPAA representatives have appeared before the Committee of the Judiciary

(both House and Senate), while maintaining also active involvement in commerce-related

committees. The most pertinent area to the MPAA over which the Committee of the Judiciary

has jurisdiction is “patents, the Patent and Trademark Office, copyrights, and trademarks”

(Committee on the Judiciary, 2006). The survival of the motion picture industry principally relies

on guarantee of copyright, particularly because, as deemed by the Copyright Office, “in the case

of works made for hire, the employer and not the employee is considered to be the author” (U.S.

Copyright Office, 2006). Therefore, movie studios are the entities that profit from copyright

registration and enforcement, rather than individual artists like novelists or even musicians. Their

interests are most at stake when copyright debates enter Congress, and so they rely on the MPAA

to defend their interests on Capitol Hill.

In light of research around celebrity appearances in committee hearings, one wonders if

perhaps the MPAA has a special advantage in its lobbying efforts. Strine (2006) finds that

celebrity witnesses attract a lot of attention and tend to be treated almost adoringly by committee

members. Former MPAA Chairman and CEO Jack Valenti, while not a celebrity in the same


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sense as Hollywood actors, is weighted by association; he has been intimately involved with the

goings-on in Hollywood in order to understand the economic and political climate of his

constituency. He has presented Oscars at several Academy Awards ceremonies, a task usually

given to top stars in Hollywood, and counts many of those stars as his close friends (Larsen,

2004). Valenti regularly extended this Hollywood access to Congressional members by inviting

them to “view a new film in the screening room of the motion picture association's headquarters

near the White House” (Stevenson, 1990).

Yet Jack Valenti, and thus the MPAA, has been arguably much more effective than

celebrity witnesses because he is a life-long Washington insider. Strine concludes that celebrity

witnesses “provide information that will ultimately not be helpful in drafting public policy”

(Strine, 21). Valenti, a tireless advocate of the motion picture industry, started in Washington as

an aide to President Lyndon B. Johnson and has developed a reputation as one of the top

lobbyists on Capitol Hill. Indeed, his status as the highest-paid lobbyist in Washington during at

least one point in his career announces the level of support that his trade association has given

him (Lee, 1992). Although he has not been the exclusive MPAA representative at hearings,

Valenti has been instrumental in pushing legislation, and his dedicated involvement over the

course of his career signals that he is more than a mere celebrity witness. The appointment of

former Secretary of Agriculture Dan Glickman in 2004 to replace Valenti as Chairman and CEO

indicates that the MPAA regards itself as a force in Washington and wants to continue to be so.

It is dependent on insider knowledge and connections that will potentially produce more results

than any preferential treatment of a celebrity chairman could provide.


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Framing the Problem: Examining the MPAA’s Strategy

Problem definition is a central component of policymaking. Stokey and Zeckhauser

(1978) note that “establishing the context” is the first in a set of five steps to proper and effective

policy analysis (Stokey and Zeckhauser, 5). These authors are, however, less interested in

examining the subjectivity and bias that one brings to the process of establishing the context;

they assume that the problem will be approached objectively and rationally. Stone (2002)

acknowledges the improbability of objective problem definition, instead foregrounding

subjectivity and framing as central to policy analysis and policymaking. Issue framing is, to

Stone, one of the devices used to tip the decision making process in one group’s favor over

another’s. “A frame is a boundary that cuts off parts of something from our vision,” eliminating

other alternatives so that only one remains as a sort of Hobson’s choice (Stone, 248). The issue

framer develops the only possible solution to a given problem and that solution most likely

favors the framer.

Framing creates categories within which a proposed policy’s interested parties are cast.

Ingram and Schneider (2005) discuss how privilege often determines these categories: “Groups

and societies create myths and rationales that justify the dominance of some groups over others”

(Ingram and Schneider, 3). Their argument is rooted primarily in social constructions that favor

certain publics over others, particularly with regards to race, gender and ethnicity. Constructions

are used to achieve ends that serve one group at the expense of another, a practice often

facilitated by political processes. We can extend similar ideas to the MPAA’s framing of issues

related to copyright and piracy. This trade organization is just as adept at creating categories that

privilege certain groups over others; these categories serve its overall objective of sustaining a

successful and profitable industry, often at the expense of the general public.


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To Ingram and Schneider, “successful governance also requires an empathic citizenry

that is capable of understanding and pursuing its own interests, but that also acknowledges and

respects the interests of others” (26). Furthermore, it is this acknowledgement and respect that

provides a “sense of belonging to the broader society” (27). One could imagine that the MPAA

considers itself to be this empathic citizenry of which Ingram and Schneider speak; it is certainly

capable of understanding and pursuing its own interests, while purporting to acknowledge and

respect the interests of others, positioning itself within a broader scope of society. Indeed, it

would contend that its own interests are the public’s interests.

The MPAA’s participation in Congressional committee hearings can be understood

within the two frameworks mentioned above: that the MPAA creates myths and rationales to

justify dominance over others, and that the MPAA represents Ingram and Schneider’s empathic

citizenry as discussed above, serving to stimulate what it perceives as successful governance.

Furthermore, the MPAA’s message consistency over the years has strengthened its framing of

copyright and piracy issues within these two frameworks.

Three Decades of Messages

The MPAA has participated in a range of committee hearings. In the late 1970s and

1980s, it submitted witness testimony to hearings regarding the cable and satellite television

industries, the potential (both positive and negative) of home video, and revisions of

international copyright policies. Scattered throughout the past thirty years are a handful of other

non-copyright-related issues, touching on the film industry’s role in society, including issues

around drug abuse education, violent programming and television ratings (see, for example, U.S.,

1977, 1985, 1992, and 2000a). Only roughly 17 of the 126 hearings at which the MPAA testified


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between 1976 and 2006 were not copyright-related in some respect. This provides further

evidence that the MPAA has long been primarily concerned with influencing legislative action

pertaining to copyright and piracy.

The MPAA’s feelings toward technology has always been mixed. On the one hand, it has

great potential to increase capacity and quality for the industry as it improves filmmaking

methods and offers new avenues through which to release films. On the other hand, however, the

accessibility and availability of these technologies to new industries like cable or satellite

television and to ordinary citizens means that the industry has more competitors than just within

the MPAA’s member studios. These competitors are often described in terms that equate them

with enemy status, untrustworthy and potentially damaging to the industry’s welfare.

In the 1970s and 1980s, the “enemies” were the cable and satellite television industries,

along with governmental regulation that hindered film industry profits. In Congressional

hearings, the MPAA insisted primarily on proper acknowledgement and monetary compensation

of copyright more so than addressing piracy as such, because while these industries did not

always agree, they still dealt with similar objectives of profit and growth.

The mid-1990s saw a shift in enemy definition; no longer was it just other media

industries with similar profit-making goals as the film industry. While the MPAA still needed to

safeguard potential new markets for entry and expansion, the main “enemy” shifted to ordinary

citizens and even organized crime with the proliferation of DVDs and the Internet. Because these

groups were fundamentally different from the film industry, the MPAA (and Congress) had to

rethink tactics once employed to combat problems with cable and satellite. The MPAA focused

more insistently on making criminals accountable for their actions, using scare tactics that

threatened legal recourse and even citizen responsibility for national economic ruin.


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Although the debates have altered to encompass new technologies and market conditions,

the MPAA has remained unendingly consistent with its message about the value of movies to the

U.S. and to the world, economically and culturally. In a particularly ostentatious comment that

encapsulates the MPAA’s stance in this regard, Jack Valenti cheered, “American creative

material is joyously received by every country, creed and culture on this planet” (U.S., 2001).

Myths and Rationales Created to Justify Dominance Over Others

The rationales most central to the MPAA’s framing of the issues in order to justify

dominance or privilege are those of the economic and cultural impacts of movies, which have

remained constant over the past thirty years. It also uses particular rhetoric regarding pirates to

shape the entire debate.

Economic

Economically, the film industry is one that consistently produces a “surplus balance of

trade,” a fact to which the MPAA continually refers (for example, U.S., 1982, 1995, 1997, and

2004c). The copyright industries, which include “movies, TV programs, home videos, books,

music, computer games and software,” account for five percent of the U.S. gross domestic

product, “creating new jobs at three times the rate of the rest of the economy” (U.S., 2001 and

2003a, for example). These economic statistics are verifiable facts and are impressive ones at

that. But it is precisely this consistent emphasis on the film industry’s economic performance

that allows the MPAA to justify its dominance over other interests in the piracy debate. With

estimated economic losses of pirated goods in the billions of dollars, the MPAA presents a strong

case to Congress to act in the economic interest of the country. After all, the film industry

“represents an economic engine of growth that is the envy of the known world” (U.S., 2001).


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Committee members are urged to recall that their own constituents are part of this economic

engine; after all, the film industry creates jobs not just in Hollywood but also across the entire

country (U.S., 1982, 1983a).

The MPAA uses its economic strength in attempts to influence foreign trade policy and

economic aid. It requested, for example, in 1983 that copyright protection be tied to such policies

as the Foreign Assistance Act, and in 2004 that Russia’s accession to the World Trade

Organization be contingent upon its observance of copyright standards (U.S., 1983b and 2004c).

It has also recommended “the strategic deployment of high-level advocacy and diplomacy” on

the part of the State Department and other agencies to gain the cooperation of foreign

governments (U.S., 2004c).

Cultural

The cultural value of movies and intellectual property more broadly, like their economic

value, is a message that is continually pounded in MPAA witness testimonies. “Movies have a

timeless quality…. There is magic about movies that gives them long life and continuous

attraction to the movie-going public” (U.S., 1976, 648). Furthermore, the U.S. is the “confirmed

world leader” in intellectual property (U.S., 1997), and “people throughout the world want to see

and enjoy American films and television programs more than any other country’s similar

creative material” (U.S., 1986a). The focus on cultural value is important because it

communicates a quality about film that transcends simple economic considerations. They are

“intangibles that no one can put a value on” (U.S., 1999). (It is interesting to note, however, that

the next sentence reads: “Motion pictures are…intangibles that we can – and do – assign a value

to” because, despite its best efforts to convince the public otherwise, the film industry can only

conceive of movies as economic goods (U.S., 1999).) The country exports a sense of itself to


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other countries that are actively seeking American content (American films are “most sought

after” by global audiences; (U.S, 1995)). Film’s ideological function is not explicitly indicated in

the testimonies, but every mention of cultural value suggests that American films are superior to

those of any other country and thus policy should be designed to maintain that superiority.

Proper Copyright Recognition and The Pirate

The MPAA’s description of the movie pirate is one component of the piracy debate that

has altered somewhat over the past thirty years. This is particularly useful to the MPAA in

justifying privilege over others; once couched in terms of fair business practices, it now emerges

in terms of safety. When competition from the cable and satellite television industries became a

real concern for the film industry, the MPAA demanded that it be treated justly with “a system of

fair compensation to the copyright holder in audiovisual works for the unauthorized copying of

his work” (U.S., 1983a, 283). This particularly surfaced in calls for deregulation of the cable

industry, which was transmitting content without acknowledging copyright (see, for example,

U.S., 1979, 1981a). The copyright violator was often called a “dishonest retailer” (U.S., 1981b,

38). Only when videocassette recording threatened the film industry with more prevalent

copyright violation did the MPAA begin to change its tune, equating some operations of VHS

piracy with organized crime (U.S., 1981b). But it still remained primarily a business-related

issue, rather than one of national safety: “lack of copyright protection is our number one

international trade problem” (U.S., 1986b, 33).

A recently study commissioned by the major studios examines their worldwide losses,

and describes the average pirate, who may live in the U.S., Korea, Hungary, or elsewhere: “The

average film copyright thief is male, between the ages of 16-24 and lives in an urban area….

Active pirates are more likely to be in college than non-pirates and general movie watchers,


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especially download pirates” (MPAA, 2006a, 5). But the MPAA’s description of pirates in

witness testimonies does not focus on these details. Rather, it describes pirates in particular ways

in order to highlight their criminality as a security risk, even drawing ties to organized crime and

terrorism. Pirates are “business-minded thugs” (U.S., 2004c) and “invaders” (U.S., 2000b) who

“cheat consumers by giving them inferior products” (U.S., 1999), following “nefarious paths” to

realize profits (U.S., 2003a). The MPAA maintains that these criminals, “with rare exceptions,

[are] procuring, producing and distributing this pirated material are affiliated with large and

dangerous international crime syndicates and gangs” (U.S., 2004c). Indeed, piracy is “more

lucrative than selling drugs” (U.S., 2005). In several hearings, the MPAA witness gave testimony

about the violent nature of these groups:

“One of our investigators in Russia has been shot at; one of our investigators in Mexico had his wife kidnapped by pirates; one of our investigators in Malaysia, after being repeatedly threatened, had to move to a secure location after watching a pirate slash the face of her maid with a knife in a case of mistaken identity; and one of our investigators in Thailand had to escape from his car which had been forced off a bridge by pirates into a rushing river” (U.S., 2004c).

Valenti even linked intellectual property theft with terrorism in his citation of a U.S. Customs

Today article from 2002: September 11, 2001, “also changed the way American law enforcement

looks at intellectual property crimes” (U.S., 2003a).

The ways in which the MPAA uses key words and phrases to depict pirates shifts the

framing of piracy from a dishonest but strictly industry practice to that of criminality, bringing

up questions of physical safety. “The recasting of ‘piracy’ in a language of criminal violation,”

writes Yar, “amounts therefore to its ‘moralization’, an attempt to create a normative consensus

that it offends against the agreed standards of decent and acceptable behavior” (Yar, 687). The

issue of piracy becomes polarized in such a way that Congress would be hard-pressed to justify


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passing legislation that does not privilege the MPAA over these pirates; after all, that would

condone criminal and immoral behavior and compromise the safety of American citizens.

MPAA as Representative of Empathic Citizenry

Successful governance in the areas of piracy and copyright resides in the MPAA as

representative of the citizenry, acting in ways that generate a sense of collectivity in the broader

scope of society by respecting interests of others. Focus rests primarily on the two main sets of

victims in the piracy debate: movie industry employees and movie audiences.

Protecting Its Own

The approach with which the MPAA tries to protect its employees has changed little over

the past thirty years. Movie industry workers have long formed the basis for the economic

vitality of the industry. “[T]he Hollywood hurt most dramatically [by piracy],” lamented Valenti,

“will not be the Hollywood of the stars. It will be the Hollywood of the stage hands, electricians,

grips, carpenters, seamstresses, film editors, and all other skilled workers involved in the film

production process” (U.S., 1982, 39). The MPAA reminds Congress that it is responsible for

these groups, of which their own constituents might be part. “They are ordinary, hard working

people who deserve the same consideration from Congress for their basic contribution to our

economy as is given steelworkers, autoworkers, coal miners, farmers, all Americans who work

for a living” (U.S., 1982, 39). But the primary message about who stands to lose most from

piracy is the one who produces creative works. Although the U.S. has a “system of financial

incentives provided by our copyright laws that has guaranteed a continued flow of creative works

on film to the marketplace,” this system is under constant threat (U.S., 1983a, 287).


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Today, with increased potential for globalization and the loss of American jobs, the

MPAA is quick to reinforce messages that the motion picture industry, as discussed earlier, is

vital to the American economy and generates hundreds of thousands of jobs every year. The

MPAA has charged itself with safeguarding those jobs through legislative action, on behalf of

the “thousands of law-abiding people who work in the movie industry and whose livelihoods are

threatened by piracy” (U.S., 2004c). It is not hard to understand why the MPAA places such

importance on these groups; if those jobs are protected, their corporate employers are protected.

Congress would be remiss if it does not ensure a supportive working environment for the

continued success of the motion picture industry.

Protecting the Public

The public interest is, according to the MPAA, simply the public’s right to be consumers

and to have access to media content. Moreover, the public is entitled to quality media content

from a trustworthy source, and the MPAA has deemed itself responsible for guaranteeing that

quality content.

Proposals of industry deregulation in the late 1970s and 1980s protected what was

referred to as the public interest. The cable and satellite television industries used to rebroadcast

content owned by the movie studios without proper copyright attribution (monetarily, in

particular). The MPAA linked the lack of copyright protection with movie industry’s inability to

“profitably produce and market quality material,” which would then affect the public’s right to

quality content (U.S., 1976, 642). Only deregulation of the cable and satellite industries would

remedy the potential violation of the public’s right. “Restrictions should be placed on television

signal carriage which threatens the public interest, that is, the lack of a fair marketplace” (U.S.,

1977b, 102). All the motion picture industry wanted was to be able to continue making movies.


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But without protections that addressed piracy and, in a roundabout way, deregulation, “motion

picture studios…are forced to cut their losses by committing to fewer releases and concentrating

on known artists and materials” (U.S., 1981b, 33).

In vocalizing similar concerns regarding VCR technology, the MPAA implored Congress

to recognize that:

“[T]he public interest is at stake. It is that public interest you have sworn to serve and it is that public interest which cries out for clear markings of ownership and incentive… Is it in the public interest that a new technology suddenly thwarts the creative community of this country in its efforts to bring enjoyable entertainment to American homes? The answer, of course, must be NO” (U.S., 1982, 66). The MPAA has not changed this tune much in the past three decades. Today, it still

hammers home the point that making a movie is such a risky endeavor that, if “the risk becomes

too large, the capital becomes cautious, and the works dry up” (U.S., 2000b).

But there is an additional message that the MPAA includes in testimonies of the past five

years; the public interest is also synonymous with national security. Not only are movie pirates

bad people, as discussed above, but they will also spend profits from pirated goods “in a way

which is not consonant with our safety and security” (U.S., 2004c). Pirates have a “brazen

disdain for laws and rules which guide and govern the daily labors of Americans” (U.S., 2000b).

No longer is piracy simply an economic problem. It challenges the basis of American society, the

laws to which we adhere. It threatens our very lives.

Conclusion

The Motion Picture Association of America has remained a formidable force in lobbying

over the past thirty years. The consistency of its messages regarding piracy and copyright

enforcement has served to reinforce its position of expertise in Congressional hearings.


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Assessing whether or not the MPAA testimonies have much actual influence over Congressional

decisions is a matter for another research study. Would Burstein’s analysis, which points to a

lack of tangible influence of witness testimony in Congressional decisions, yield contradictions

when applied to the case of MPAA witness testimony? The fact remains that the MPAA is

continuously included in Congressional debates over new technologies that facilitate piracy as a

voice of expertise. The MPAA even suggests, at times, that its expertise is better equipped to

design policy than legislators: “We would be happy to work on language with the Subcommittee

and with others concerned, to ensure the courts will interpret this provision appropriately” (U.S.,

2004a).

Copyright protection remains a valid concern for one of the most economically healthy

industries in the U.S. precisely because of the ways in which the motion picture industry frames

the issue. Some scholars, including Yar, posit that this framing aggravates the extent to which the

motion picture industry allows piracy to affect it. Regardless, the essential content of its

messages has never really changed. The motion picture industry is a vital force that ensures both

economic and cultural impact domestically and internationally. Globalization and rapid

technological advancement have changed the entire landscape in which American industry

operates; no longer is cultural and economic dominance a given. But the motion picture industry

is consistent with its message that its formula of success can be preserved simply through

copyright protection and enforcement ensured by legislative policy.

When the MPAA does change its messages, it does so to reflect the most prominent

concerns of the day. In this way, the association stands the greatest chance of influencing

Congress, as it hints at the concerns of average citizens, also Congress’ constituents. In the late

1970s and 1980s, the MPAA focused on industry deregulation in order to provide diversity and


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abundance of content choice to moviegoers. Today, the MPAA shifts attention to personal and

national security, precisely because of the increasingly fragile position that the U.S. occupies on

the global stage. If the most endeared industry in the world, that of the film industry, cannot be

protected, then the U.S. economy is sure to fail in competition with the rest of the world.

And so the MPAA insists that Congress keep the issue of piracy at the fore of all debates,

particularly those relating to international trade. So far, “piracy remains at the top of our bilateral

commercial agenda with key countries,” but continued diplomacy, combined with enforcement,

educational measures, and legislative action, are necessary to guarantee that American copyright

is respected, both domestically and overseas (U.S., 2004c). After all, as Valenti says over and

over, “if you can’t protect what you own, you don’t own anything” (U.S., 2003a).

The MPAA is an ideal organization through which to examine how interest groups frame

issues of concern in Congressional hearing witness testimony. The MPAA intends to shape

policy as much as possible in terms that benefit the industry first and foremost. But it shrewdly

phrases those terms as unwavering concern for the public interest. It is up to Congress in these

instances to discern where the public interest ends and where the MPAA’s interest begins.


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