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APAR's WORKING WEEKEND: Left Out of Copyrights

13 Jul, 2001 By: Bruce Apar

No, I’m not ruminating on the horror flick series named after the superstitious date being visited on us this weekend, or on superstitions in general. It’s just a journalist’s cheap trick to get your attention, so sue me.

Speaking of which, I emailed my 13-year-old kidNapster son a story about online music service Napster’s latest slap in its face by the long arm of the law – being ordered to shut down until it can prove 100% of its copyrighted content is out of the site. My message to him was, “My condolences to your generation, but as my generation likes to say, ‘There is no free lunch.’”

These days, the “generation gap” – which coinage, by the way, is credited to video luminary Richard Lorber, of the former Fox/Lorber boutique label – might refer to successive generations’ utter lack of recognition, let alone respect, of the lawful rule of copyright protection.

It’s bad enough that the staunchest of citizens – my neighbors as well as yours – are oblivious to stealing vaporous goods, such as cable signals through their ownership of black boxes. If anything, it’s a status symbol to have one of those suckers, equated with scoring contraband fireworks for the Fourth of July. Now, digital technology has virtually eradicated for many the perceived value attached to somebody else’s property, whether it’s a song or feature-length film.

I’m as guilty as the next person. Not of stealing intellectual property — I have too many years and an emotional investment in the entertainment business to do that — but on the other hand, I don’t exactly punish my son for downloading songs from Napster. I harangue a bit, but that’s it.

This increasingly antiquated attitude of mine dogs me in many ways. Along with many others in the industry, I’ve been intrigued by the recent imbroglio brewing between Disney and one of the industry’s most durable entrepreneurs, Jed Horovitz of Video Pipeline. Whether you know Jed personally or not, he has earned respect by building a business that provides individual retailers of video – some one-store operations, others larger chains – a valued-added customer service that is designed to translate into incremental transactions, or just more loyal clientele. Increasingly both are commodities of vital importance, particularly to video rental stores.

You can read elsewhere about the nuances of this legal set-to – pitting Pipeline’s online movie trailer service against Disney’s claim it not only owns but controls distribution of its copyrighted content, including the right to charge middlemen like Horovitz a licensing fee to sell it to retailers.

I’m not about to tread water by weighing on such weighty legal matters – that are widely viewed as potentially precedent-setting for the entire home entertainment industry. What does mystify me, however, is something Video Pipeline did after realizing Disney was going to make a federal case out of Pipeline’s online distribution of its trailers.

Horovitz, in an effort to make an end run around the entertainment empire that is anything but mousy when it comes to enforcing its rights of ownership, made homegrown Disney trailers by copying parts of rented tapes. Understanding that he felt righteous about his “First Sale” right that Disney was challenging in the first place, it’s nonetheless surprising he didn’t leave well enough alone until the legal matter was resolved.

It is reminiscent of the intermittent incidents reported over the years where an errant retailer will decide to edit out what he considers offensive footage from a studio’s prerecorded tape. That’s a case of not being able to distinguish between the First Sale reference to owning physical copies of a movie, and the movie itself. The retailer owns the former, the studio the latter.

Video Pipeline’s indignant decision to make copies of prerecorded material for commercial use is, it would seem, as much wronging someone’s copyright as a retailer editing Jar Jar Binks out of its copies of Star Wars: Episode 1 — The Phantom Menace. The law, for practical purposes, is blind if you do this at home, but doing it for profit in the public marketplace will assuredly attract the attention of corporate legal eagles’ eyes.

Comments? Contact Bruce directly at:bapar@advanstar.com

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