Is the MPAA even pro-Hollywood any more?
The lobbying organization seems more concerned with giving itself a reason to exist than with solving the film industry’s problems
There is more to Hollywood politics than meets the eye. As regrettable as the Sony hack was, it gave us two valuable windows into the inner workings of the film industry.
- Leaked emails revealed the Motion Picture Association of America’s ongoing plans to censor the Internet to reduce digital film piracy.
- The hack prompted a surprise, online Christmas Eve release of The Interview that let us observe the effect of a new distribution model on film revenue.
When put together, these vignettes raise important questions about the future of the film industry and its lobbying efforts. Is the MPAA really representing Hollywood’s long-term interests in Washington, or is it trying to fight old battles over and over in an attempt to justify its own existence?
The Stop Online Piracy Act was the MPAA’s declaration of war against the Internet. After SOPA’s ignominious defeat in 2012, the whole concept of site blocking as a means of fighting content piracy appeared to be dead. But in fact, emails between the MPAA and the studios leaked in the Sony hack reveal that the MPAA never gave up on the idea; it was only regrouping and reevaluating its tactics.
The first part of the MPAA’s new strategy was to mire Google in public criticism and state investigations. Industry lawyers viewed the search giant’s public advocacy against SOPA as a major obstacle to site blocking. If Google could be neutralized and site blocking re-litigated in a less public way, the MPAA would have a better shot of prevailing.
The organization began to criticize Google for its supposed role in content piracy, on the dubious grounds that a great many pirates might search for terms like [carly rae jepsen call me maybe mp3] or [game of thrones download], both real examples of search queries from Google’s 2014 anti-piracy report (and dwarfed by searches for [carly rae jepsen call me maybe] and [game of thrones], by the way). Google actually changed its search algorithm to demote sites for which they received a large number of valid DMCA notices. This move did not appease the MPAA and now appears to have been a mistake.

The MPAA lobbied state attorneys general to investigate the company for this and other manufactured offenses. In October, Mississippi AG Jim Hood complied, issuing a 79-page subpoena demanding information on Google’s role in online sales of illegal drugs, pornography, and other materials. Due to revelations in the Sony emails that the MPAA funded some of this activity, Google is now suing Hood in federal court for being improperly influenced by the organization.
A second prong in the MPAA’s strategy is to use the International Trade Commission to effect site blocking on the Internet. The ITC is empowered to prevent the importation of counterfeit or infringing articles into the United States. Under an April ruling, this can include digital goods that were created in violation of US patents.
In an August memo, lawyers working for the MPAA mapped out a strategy to extend this ruling to the international transmission of pirated content over the Internet. If they succeed, the ITC would be able to issue orders barring the “importation” of certain sites on the Internet — a site-blocking blacklist. In effect, the ITC would be implementing the most objectionable part of SOPA without even a Congressional vote.
It’s unlikely that Congress intended to vest the ITC with authority over all international telecommunications data transmissions. Consequently, we can all hope that the courts will do the sensible thing and limit the Commission’s power.
But the more striking point is what this strategy reveals about the MPAA: the organization still deeply believes in site blocking as more or less the solution to online piracy. It continues to position itself as an enemy of the open Internet.
Meanwhile, Hollywood’s relationship with the Internet got an unexpected rapprochement due to the Sony hack. Faced with the comically implausible threat of North Korean terrorism at theaters showing the film, Sony decided at the last minute to debut The Interview online via Microsoft and Google on Christmas Eve. Apple and Amazon added the film to their catalogues a few days later, as did cable pay-per-view systems.
By all accounts, the online release was a success. The movie generated $31 million in video-on-demand revenue by January 4, in addition to $5 million in box office revenue at independent theaters courageous enough to risk a North Korean sleeper cell. For a film that cost $44 million to make, is not even very good, and hasn’t yet seen the light of day outside of the United States and Canada, that is not a bad haul.

What about piracy? According to TorrentFreak, The Interview was pirated approximately 1.5 million times after roughly two days online. But even this statistic underscores an important point made by supporters of online film distribution: the North America-only online release fueled demand for pirated versions of the film overseas.
One commenter on a torrent site noted that he turned to piracy only because the film was not available in his country. “Just signed up to say Thanks, since it was not released outside of US when it should be all at the same time. Will now be finally able to watch this,” he wrote. It stands to reason that Sony’s decision to release the film only in North America left money on the table and fueled piracy.
There is additional evidence that the online release was a win for Sony: its YouTube channel gained 243,000 new subscribers in the aftermath of the Interview release. As YouTube entrepreneurs like Michelle Phan would note, subscribers are as good as cash, a ready source of revenue for future online movie releases, if Sony decides to do more of them.
The Interview episode shows that the Internet need not be viewed only as a source of piracy. With a modest change in business model, it can also be the film industry’s next great distribution platform.
The most important question raised by these two stories is over the future of Hollywood. What is the best strategy for the film industry going forward? Should it continue to fight the open Internet, as it did with SOPA, and as it has continued to do through state AG investigations and lobbying the ITC? Or should it embrace the Internet as a potentially profitable distribution platform that is in any case here to stay?
It’s clear which strategy the MPAA, the lobbying organization, prefers. If the studios were to truly embrace the Internet, the MPAA would have a much diminished reason for existence. There is no one you need to lobby in order to release films online. Many employees, such as chairman Chris Dodd and general counsel Steven Fabrizio, would have little to do. The organization would have to go back to administering its film ratings system and asking states for ridiculous film tax credits.

But it seems likely that the best future path for the studios lies with embracing the open Internet. This whole digital communications revolution thing is not some passing fad. Online activists — not just, as the MPAA absurdly intimates, Google — are unlikely to allow the Internet to be censored.
Furthermore, it’s not clear that site blocking would even work to reduce piracy in the long run. As Rick Falkvinge has noted, the content industry had a unique opportunity to work with Napster in 1999 to change its distribution model. Instead, the industry shut Napster down, which led to decentralized piracy over Bittorrent. If the MPAA ever succeeded in censoring the web, pirates would move to even more decentralized models of distribution.
The smarter choice for the studios, therefore, is to begin now to learn how to make money through online distribution, which places them in significant tension with the association that is supposed to represent them in Washington.
That the MPAA was silent in the immediate aftermath of the Sony hack underscores this tension. As David Carr, a media columnist at the New York Times, notes, “The breach of Sony would seem to be exactly the kind of moment when an association has real value, when it can collectively respond to a fundamental threat to the industry.” Instead, the organization kept its head down.
Over time, as the studios’ true interests become more and more painfully clear, so will the discrepancy between their interests and those of the MPAA itself. Here’s hoping the studios recognize this sooner rather than later and spare us all a pointless reprise of the battle over SOPA.
Eli Dourado is a research fellow at the Mercatus Center at George Mason University and director of its Technology Policy Program. Follow @elidourado on Twitter.