Judge Overturns MPAA's Ban On Movie Screeners

[DudeAsInCool]

December 6, 2003

By RANDY KENNEDY

A Federal judge yesterday overturned a ban by the Motion

Picture Association of America on the distribution of

copies of new movies to critics and groups that present

awards. He ruled that in trying to fight piracy with the

ban the group was hurting small filmmakers.

The association, which represents the major movie studios,

argued that the copies - mailed out as a winter rite in

Hollywood when the awards season begins - often ended up in

the hands of pirates whose bootleg versions were for sale

on the street within days, even while the movies were still

in theaters. After first imposing a total ban, the

association said it would send copies of movies only to

people who vote on the Academy Awards.

Many independent filmmakers argued that the ban, imposed in

September, had severely hurt their films' chances of

winning awards and other accolades that could help them at

the box office. Because many small filmmakers rely on the

big studios to distribute their movies, they too were bound

by the ban on sending out the copies, known in the industry

as screeners.

Judge Michael B. Mukasey of United States District Court in

Manhattan said he was persuaded that smaller filmmakers,

with limited budgets for promoting their work, would suffer

if their screeners were not distributed. Because so many

movies are released toward the end of the year, it is often

hard for critics and prize-givers to see them all in

theaters, and they have relied on the screeners for many

years.

"Plaintiffs have shown they are at risk to suffer losses in

revenue as a result of the screener ban," Judge Mukasey

said in ruling that the major studios' agreement to impose

the ban violated federal antitrust law.

The independent filmmakers who filed the suit cheered the

judge's decision. "It allows for all films to continue to

be recognized on the basis of their merits, regardless of

budgets, marketing resources, distribution, content or

other elements," said a statement from the group, which

included producers of small-budget movies like "American

Splendor" (Good Machine), "Lost in Translation" (Elemental

Films) and "Thirteen" (Antidote).

Jack Valenti, the president and chief executive of the

picture association, said it would appeal. "From Day 1 the

screener policy has been about one thing: preserving the

future of our industry for filmmakers of all sizes by

curtailing piracy," Mr. Valenti said in a written

statement. "We know without dispute that in the past

screeners have been sources for pirated goods both

domestically and overseas."

While the fight over the issue might seem technical to the

average moviegoer, it has been a big deal in Hollywood.

Some independent filmmakers have called the ban a covert

way for major studios to undermine the efforts of smaller

movies to gain awards and other attention, which often mean

the difference between financial success and failure for a

small film. In court papers, the small filmmakers argued

that unless the ban was lifted immediately, "critical

exposure, momentum and `buzz' opportunities" would be

irreparably missed before the Oscars are presented on Feb.

29.

Mr. Valenti announced the ban in late September after the

seven major studios agreed on the idea. After an outcry, he

relented somewhat, deciding that videotapes (but not DVD's,

which are much easier to duplicate quickly and well) could

be mailed to the 5,600 members of the Academy of Motion

Pictures Arts & Sciences, who vote on the Oscars.

The members were required to sign a pledge not to let the

tapes out of their control, and they risked losing their

membership if a tape was found to have been bootlegged.

Each tape was also given a code to appear on the screen to

make it easier to trace back to a particular academy

member.

But the difficulty in staying ahead of pirates became

apparent almost immediately. A screener of "Pieces of

April" was mailed to academy members at the end of November

and has already showed up on the Internet with the special

code unreadably blurred.

While conceding that screeners have led to piracy,

independent filmmakers argued that the cost of banning them

outweighed the benefits to many movies.

"This was a solution to a problem that benefited only one

segment of the industry and hurt a lot of other segments,"

said Ted Hope, who testified in the case and who helped

produce "American Splendor," a highly praised small-budget

movie.

Mr. Hope said that when he heard the decision yesterday he

called his office to ask distributors of his films to get

screeners into the mail immediately. He said that at first

he felt a bit like Erin Brockovich winning the big case,

but then he considered the appeal and wondered "whether

this whole thing will have a kind of `indie' ending where

nothing really gets resolved."

http://www.nytimes.com/2003/12/06/movies/0...8778094424302cc