Viacom's Warpath

Letter from Willard Uncapher to Viacom

Willard Uncapher
College of Communication
Univ. of Texas at Austin
2016 Northridge Dr., Austin, Tx 78723
willard@well.com
December 18th, 1996

Mr. Sumner M. Redstone
Chairmain & CEO, Viacom, Inc.
1515 Broadway
New York, NY 10036
Re: Star Trek Copyright Infringement Case.
Cc: Carl Folta, Senior Vice President, Corporate Relations, Viacom, Inc.
Malloy D. Levitt (legal counsel, Viacom)
Jeffrey A. Rhind ("Loskene's Tholian Web")
John Lebkowsky (EFF/Eminds/Wired)
Steve Silberman <digaman@hotwired.com>
Ssteel@eff.org;

Dear Mr/Dr. Redstone,

As a university level instructor at the University of Texas at Austin, I hope you will not mind if I show a copy of your letter to my class sent by Viacom counsel Malloy Levitt to Jeffrey A. Rhind, "administrative contact," creative director, and developer of for "Loskene's Tholian Web" <http://www.loskene.com/> on December 13, 1996 asking that he remove any (Star Trek) material that might be construed as having been copyrighted by Paramount Pictures. Other Internet sites that have received threatening letters include Tony D. Gelskey' Star Trek Universe <http://www.stuniverse.com/> and Michael Brown's Vidiot Star Trek Info Source <http://www.cdsnet.net/vidiot/> Given Viacom's ownership of media properties such as Paramount Pictures, MTV Networks, Blockbuster Video, Nickelodeon Networks, and Simon & Schuster publishers in what you yourselves describe as a "29 billion dollar enterprise with a dynamic record of growth, an exceptional portfolio of assets, and a management team with an uncanny grasp of today's opportunities and a keen eye on the horizon" (http://www.viacom.com/x/idea.html), your interest in controlling and profiting from the dissemination of your copyrighted materials makes sense.

However, the case has some very interesting, even profound implications for the development of speech on the Internet, and in mediated societies in general. Imagine that I currently have a room in my (physical) house where I have created a shrine to the Star Trek series In this (physical) room I collect all kinds of Star Trek memorabilia: souvenirs from Star Trek conventions, articles from fan magazines, a letter I once got from someone in the cast, an autographed picture or two, a uniform that I made by myself for myself to wear at the conventions, and perhaps a video tape (a personal copy, never to be exchanged for money) of a particular episode that that I liked. It is in rooms, closets, drawers and shelves like these that the Star Trek mania has sustained itself over the years. Suppose that all the material there has been legally acquired, or products of my own creative engagement with the series.

Now consider trying to set up a room like this online, twenty years in the future. By then one will able to `project' oneself into a shared VRML-like room on the Internet, not unlike the worlds already set up by Sony ("Community Place"), Fujistu-CompuServe ("World's Away"), NTT ("Interspace"), or World's Inc. ("AlphaWorld"). Everything there must be a copy, and something that needs to be copied to be witnessed. More to the point, consider in the future scenario of a world that Viacom needs to anticipate even now, that I sometimes go/project to the "Virtual Bar" where I meet other friends who have likewise projected themselves into Cyberspace, into a shared, computer sustained, computer accessed reality. At one such cyber-bar, I like to talk about things like, well, Star Trek, that series I would have by then been following for nearly 45 years. At the cyber-bar, I meet a youngster who has never seen a Star Trek! I am aghast! You know those kids born in the `00s! So I decide to share my interest, and maybe get them to see a movie or two (still productively copyrighted by Viacom). I pull out of my (virtual) pocket a picture of me and, say, Dr. Spock at a convention years ago, and then another picture of Dr. Spock on the Deck of the Enterprise during a favorite episode.

According to the theory that Viacom legal counsel is seeking to establish with its threats against fans like Jeffrey A Rhind, I would not be able to show that picture of Dr. Spock on the deck of the Enterprise, since in order for the picture to be materialized `online', it would have had to be copied several times. A copy of the picture would be one my hard disk, another copy on my screen so that I could see what I was sending, another copy sent through the Internet, another received and stored on the drive of my new friend, and another version then copied to his or her screen. By Viacom's theory, then, they would seek royalties on each of these `copies.' If a friend or two sauntered over to talk to me at the cyber-bar, then each of them would be liable to pay Viacom for the copies `inadvertently' sent to them as they talked to me. Each person present would have generated two or more copies of the material just by `listening' in, and seeing what the fuss was about. Based on your emerging theory of cyber ownership, I should not be surprised if suddenly storm troopers crash through the doors of the cyber bar (alerted by Viacom's smart agents looking in `real time' for copyright infringements). These agents could seek either immediate payment from everyone present, or perhaps a lump sum from me for all of the copies.

Cyber-bars and cyber-homes are clearly part of the near future of the Net. There's no escaping this fact. It now appears, however, that you want to eliminate all discussion of Star Trek in `non-official' bars that goes beyond `secondary' commentary. Suppose later today I recite a long Star Trek passage by heart at a physical bar. Presumably Viacom would not send its lawyers after me. After all, I had made the effort to memorize the piece by heart, and no one else could make a copy. But what happens if I type the same speech which I memorized by heart for my online friends to see? If the recitation were too long, I might not be able to protect myself behind `fair usage' of copyright exclusions!. Now suppose that I perform my recitation using a shared chat client like "Onlive Traveler Client" which allows voice communication in shared virtual worlds. I might point out that Onlive Traveler is used by MTV which Viacom owns as a kind of virtual outreach. Would the digital encoding my audio recitation be a copyright infringement? Indeed, would the oral recitation of an extended passage from Star Trek over the telephone or over an `Internet' telephone be a copyright infringement? Would you send your lawyers after a virtual newspaper that prints a picture from one of your movies next to a review? Do you intend to use your new authority to eliminate what you perceive as critical review of Viacom products, demanding royalities for images and citations which your lawyers construe as having exceeded some fair usage standard?

As long ago as the 1940s and 1950s, media researchers and sociologists pointed to a `two-step' or `multi-step' theory of information diffusion. I invite you to reread the work of Robert K Merton ("Personal Influence", 1949), and Elihu Katz and Paul Lazarsfeld (Personal Influence, 1955). Their research suggested that certain people serve as links between `mass media' and `interpersonal channels of communication.' These individuals serve to verify and enlarge upon the messages coming in through mass media channels. Advertising provides information in a compressed, memorable form, and then local `opinion leaders' in the home, the shop, or the class interpret that message, and either champion, ignore, or avoid the products. This multi-step process is moving online, and as it does, each `step' leaves a trace, and that trace can be considered a copy. With the panoptic, surveillance available online, you can then find and eliminate what had once been the kind of discussion that you take place in club houses and over the phone, but mass media theory suggests that you may well be damaging the very way your products are diffused to the public.

If you claim ownership to all online `copies' of any portion of any of the Star Trek series or any of its ancillary products, then might you not damage your ability to promote or publicize these shows or products on the Internet? Even the image provided by an official Viacom distribution site must be copied to my computer and then copied to my screen. By stopping all `unofficial' use of primary materials of the Star Trek series online just when more and more discussion is going online, Viacom might be about to hurt itself more than it thinks. Publicity and advertisement have a value, you know. Some people actually go to great lengths to advertise their products. The problem, then, facing you and Viacom, is trying to distinguish publicity from end use when the person in question is a fan. The solution of eliminating all virtual `baseball cards', of attacking the fans of Star Trek for `spreading the word about the show' might be a lot more detrimental than you think, and particularly bad for a company that might actually believe in advertising and fans.

Your attacks on Star Trek fans would appear to fly in the face of what is known about media history, mass media theory, and against the evidence of what is happening with the convergence of media at the dawn of the digital era. If the past is to be valued for anything, experience would suggest that you should be paying people to set up fan sites, rather than imagining that you should eliminate all competitors to your own site. You should be striking deals with them, rather than trying to eliminate all unofficial access to your materials. Do you really think that the profit you make by selling an image of Spock on the deck of the Enterprise (for what, $1 a picture, $5, $.05), or getting people to visit your site, will compensate for antagonizing and eliminating the very people who have been out there sustain and even build new interest in the show and its associated products? Whomever in your organization thought up this idea of eliminating all intermediaries- is clearly someone more at home in the world of centralized, physical print media, and not at home with decentralized, immaterial electronic media. If you eliminate all competition to your site, and centralize it activities as part of a larger conglomerate strategy, do you really think that you can get your message out there with only the most degraded secondary discussion? Have you realized that one of the reasons that the show has sustained such interest is that has served as a vehicle for creative elaboration?

This issue is a profound one that involves more that simply developing a strategy to maximize profits from copyrighted material- and shifts to the issue of why people have been interested in the show to begin with. You might be able to increase profits in the short run by eliminating `competitor' sites, but of your relationship to your audiences will clearly suffer, and you will lose the allegiance of `opinion leaders' While your lawsuits might make some short term sense from the perspective of classical supply/demand economics, from a longer term, more comprehensive view that takes into account marketing perspectives, media theory, and the logistics of shared, digital worlds, what you are doing seems very short sighted. So short sighted, that I intend to use your legal challenges as a key example in a new media course here at UT-Austin. This is a marketing issue that clearly transcends Star Trek fandom, and gets at your understanding of online and digital communication for all of Viacom's media products. It strike me that you are about to go in the wrong direction, looking to the past but not learning from those who have studied the past. It will be interesting to see if you end up eating the hen that laid the golden egg.

Sincerely, Willard Uncapher
College of Communication
Univ. of Texas at Austin

vidiot@vidiot.com
Last modified on December 21, 1996.