Inspired by recent controversies over FCC regulation, I went to see the documentary This Film is Not Yet Rated , which describes the MPAA’s system of rating films (PG, PG-13, R, etc.) Praised by the New York Times editorial page, the film discloses a bureaucratic process that is a law prof’s worst nightmare–no system of precedent, shadowy boards, and differential treatment of litigants according to their power in the industry (major studios can get advice on how to improve ratings; indies apparently do not). I’m no defender of trash culture, but as the editorial suggests, that’s not what the ratings board is discouraging.
There are many legal angles on the film–it’s full of contracts not to speak, tense negotiations, and privacy conundrums. But the IP angle interests me most. Toward the end, Larry Lessig appears, explaining how the MPAA’s longtime head (Jack Valenti) not only orchestrated the ratings board, but also used his power in DC to get favorable IP legislation for MPAA’s dominant members (the 7 studios that control 90% of U.S. film releases). The implication is that Valenti was willing to get the industry to do a type of censorship that government constitutionally could not do, in exchange for consistently favorable legislative treatment of the major players’ copyright interests. (Admittedly, the Board does not censor films; it only rates them. But ratings heavily influence promotion and distribution opportunities. . . and these are no trivial matter.)
I have no idea if there was any quid pro quo…and I’m sure that here, as in the campaign finance literature, there are many agnotologists capable of discrediting whatever links are suggested. But the cozy relationship between Valenti and leading lawmakers does suggest a tension between the libertarian and government-friendly strands of IP expansionism. If one believes that strong IP is good because it enhances autonomy, one has to face the possibility that the price of those protections may well be capitulation to other, paternalistic government demands on the culture industry. And even if one is a strong paternalist, one is likely to be dismayed by the ratings board’s favorable treatment of cartoonized, glamorized violence, and its unfavorable treatment of work that tries to depict the real consequences of bloodshed. (The film’s deft exposure of paradoxes like these make it little wonder that one of the director’s last works was a documentary on Derrida. . .a truly moving film of ideas.)
Final Proviso: A lot of the film compares the most objectionable parts of movies to one another, to show that similar content gets different ratings. So it should come as no surprise that it would be rated NC-17 were it to accept the MPAA’s judgment. . . . and is probably not a good choice for classrooms, either!
Valenti sets up the ratings board in 1967 . . . and the industry gets favorable legislation in 1998? That’s quite a long wait for the “quo!” I think this makes more sense as a lobbying soundbite than as an actual argument.
Well, I never proposed a direct quid pro quo. I referenced the campaign finance lit above because of work like Edsall’s. Edsall demonstrated that even if one could not demonstrate a direct quid pro quo of donations-for-favors (ala the Duke CUnningham menu of bribes-for-contracts), one could still show how increasing corporate funding of elections led to certain kinds of candidates finding more favor (by, for example, scaring away challengers by winning a “dollar primary.”) The law & society lit also emphasizes how the cases that get to court may be vastly unrepresentative of the range of behaviors conditioned by law & money.
In this example, I’m just adumbrating the many symbolic and cash exchanges going on between lobbyists and the lobbied. If we are to imagine some aspect of copyright law being debated next week, Gigi Sohn of Public Knowledge, or Creative Commons, can’t visit senators and say “look how we’ve satisfied your constituents by establishing a review board that “routes around” the constitution” (ala Froomkin’s article on ICANN routing around the APA)). Valenti, and his successor, Dan Glickman, can. (Though I was very surprised the industry resisted the Norquist K-Street strategy and appointed a former Clinton official…but as the net neutrality debate shows ala McCurry, these people can very effectively disarm the usual left suspicion of corporate initiatives.)