Universal City Studios, Inc. v. Reimerdes

Christopher Jordan / St. Cloud University

Universal City Studios, Inc. v. Reimerdes: A Copyright Case in Search of a Crime


Free Speech or Piracy?

The case of Universal City Studios, Inc. v. Reimerdes illustrates the threat to free speech and technological innovation posed by the Digital Millennium Copyright Act (DMCA), which makes it illegal to traffic in any service or device designed to circumvent digital encryption systems.

In June 2000, the Motion Picture Association of America (MPAA) sued website operator Eric Corley for violating the DMCA by posting online links to DeCSS, a program that “hacks” the anti-copying CSS code incorporated onto many DVDs. The MPAA claimed in Universal City Studios, Inc. v. Reimerdes that maintaining or even linking to a site where the program was posted violated the DMCA.

Under the unfairly wide latitude provided by the DMCA, showing that the defendant actually contributed to the infringement of any copyright or the distribution of any video was not necessary. Instead, the MPAA only had to prove that the DeCSS program decrypted CSS and was thus intended to circumvent an access control system. Invented to enable users of the Linux operating system to play DVDs encoded with CSS, DeCSS was construed by the court as a piracy tool rather than a means of legally widening access to legitimately purchased DVD movies.

In November 2001, a United States Court of Appeals in Manhattan ruled in favor of the MPAA that it was illegal to publish DeCSS or even online links to the software. The court determined that the ease of disseminating the code itself threatened to produce virtually unstoppable copyright infringement, even though CSS does not prevent piracy, DeCSS does not enable it, and no piracy was alleged. The court nonetheless acknowledged that DeCSS has substantial non-infringing uses, including the development of competing DVD players.

The decision in Universal City Studios, Inc. v. Reimerdes thus promotes the efforts of the MPAA to restrict the range of DVD players usable for playing even legitimately purchased DVDs. At issue is whether or not the circumvention of copyright protection technology by the owner of a legitimately purchased DVD constitutes piracy. According to the DMCA, it does.

The Digital Millennium Copyright Act

The DMCA represents the media conglomerates’ greatest victory in their quest to control content in the digital age. The greatest consequence of the law is that it makes the mere circumvention of any copy protection technology a crime in itself. While the fair use doctrine makes it legal to make a backup copy of a movie, it is illegal to defeat copy protection technology in order to make that copy.


The Digital Millennium Copyright Act

The political gamesmanship involved in the formulation of the DMCA exemplifies how government policy favors the interests of copyright owners over those of authors and media consumers. Supporters of the DMCA included the motion picture industry, the music recording industry, and book and software publishers, among others. Opponents of the bill included the Home Recording Rights Coalition (a lobby composed of consumer electronics manufacturers, wholesalers, and retailers), libraries, and consumer groups.

A key objective of the communications industry lobby was the erosion of the first sale law and fair use doctrine. Copyright owners contended that breaking into technological protection was like breaking into a house, and was therefore not permitted by the fair use doctrine. The housebreaking metaphor proved effective, but was misleading because the protections afforded by property rights do not apply to technological protection measures designed to prevent uses that don’t invade anyone’s property rights. The United States Department of Commerce attempted to strike a compromise by making it illegal to impose criminal liability for circumvention on individuals who use a device or service to circumvent technological protection on a copy of a work to which the circumventer was entitled to gain access.

However, the department also argued it was necessary to prohibit the making or selling of devices or services designed to facilitate this kind of circumvention, in order to prevent the widespread marketing of piracy devices under the pretext that they had non-infringing purposes. Incumbent in this “compromise” was a contradiction: how can consumers circumvent copyright controls for non-infringing purposes, if all devices and services to facilitate that circumvention are illegal?

The DMCA acknowledges fair use by allowing law enforcement, computer software publishers, and librarians to circumvent copyright protection programs for the respective purposes of investigating criminal activity, creating a competing product, and deciding whether to purchase a work for a library. Ironically, the section of the bill imposing civil and criminal penalties for trafficking in technology designed to aid in circumvention includes no provisions for supplying legal users with that technology in order to enable them to take advantage of their statutory privileges. The software designers working for the firms whose purposes the DMCA served were the only group likely to have the expertise to develop circumvention technology without outside help.

The case of the movie industry’s Content Scramble System (CSS) thus offers an instructive example of how the DMCA serves as a useful tool for the studios’ attempt to control the digital reproduction and alteration of their copyrighted movies. The system limited DVDs to being played on machines that could descramble the CSS code – such as MacIntosh and Windows computers. CSS did not allow for other types of machines, namely Linux-based computers, to play DVDs encoded with it.

A group of hackers wrote DeCSS, a code that disables CSS and enables the DVD to be used in any machine. Through the MPAA, the industry immediately sued, even though the distributors of DeCSS were not in the business of selling pirated movies, and at no time in the case did the plaintiffs prove that any movies had been pirated because of DeCSS. Nonetheless, the MPAA prevailed in federal district court without ever showing that DeCSS or any of the defendants had actually contributed to the infringement of any copyright or the distribution of any video. Under the DMCA, the plaintiffs merely had to show that the code decrypted CSS and was thus a device intended to circumvent an access control system.


DeCSS at Work

Most troubling about the case is its erosion of the first sale doctrine. Because the DMCA allows content providers to regulate DVD use and access, they can set all the terms of use. The duration of protection under the DMCA is also potentially infinite. Copyright law currently protects any work created today for the life of the author plus 70 years or 90 years in the case of works for hire. However, electronic copyright devices protected by the DMCA do not expire.

Just as troubling is the endangerment of free speech under the DMCA. The website managed by Universal City Studios, Inc. v. Reimerdes defendant Eric Corley ran articles about DeCSS and the code involved and almost immediately received an injunction from a federal judge at the request of the MPAA. The website then removed the article and code and instead posted hyperlinks to where readers could find the information. This won the site an injunction, too. The MPAA’s next move was to try to bar the press from attending depositions in the case or public hearings, claiming the need to protect confidential sources and the methods involved in its anti-piracy efforts. After the 2001 ruling that Congress had a compelling interest in preventing piracy, Corley announced in 2002 that he would not seek U.S. Supreme Court review of the court order.


The outcome of Universal City Studios, Inc. v. Reimerdes exemplifies how the interests of capital increasingly erode the right of consumers and citizens to access information under first sale and fair use laws. Although Hollywood has successfully tapped new markets and banked record profits by welcoming new technologies rather than suppressing them, the case illustrates how the filmed entertainment industry’s ceaseless quest to control digital technology engenders myopia.

Image Credits:

1.) Free Speech or Piracy?

2.) Digital Millennium Copyright Act

3.) DeCSS at Work

Please feel free to comment.

A Tale of Two Fan Girls

Bambi Haggins and Anna Jonsson / University of Michigan


Lois and Clark was a first foray into fandom.

On April 13, 2008, Bambi Haggins and Anna Jonsson, two self identified television scholars, continued a conversation about our evolving television viewing practices: in other words, we talked about being TV fan girls. If indeed the ways that we watch television reflect and refract evolving notions of both fan practices and communities, our attempt to mine our experiences may provide a basis for further rumination on fandom. Thus, this piece, an excerpt of a candid but cautious conversation, is casual discourse rooted in highly personal experiences—part lay theory, part critical/cultural theory. Our long-standing shared fan experiences allowed for a conversation interrogates our personal histories of fandom and its shifting definition, how the way we watch impacts what and how we watch and, in broader theoretical terms, whether or not different viewing practices make a different fan.

First of all, we need to explain what we mean by “fan girl.” We define this experience of fandom as involving the emotional, intellectual and social investment we’ve made in a handful of television series. We both intuitively think about being “fan girls” as participating in a community experience. However, interestingly enough, the actual earliest experiences of fandom did not fit the vision of friends gathered around the television. Haggins’ childhood love of M*A*S*H caused weekly arguments with her younger sisters (The Wonderful World of Disney fans): “Half the time, I would lose but, if I got Pop to watch with me before the whining about Disney started, I’d win.”

Although one of us (Haggins) asserted that fandom was a communal endeavor, her first example of fandom was an assertion of taste that was not shared by all. On the other hand, as aptly noted by Jonsson, the other’s first example of fandom exhibited “little taste at all” but provided a template for future fannish practices. Her show was Lois and Clark: the New Adventures of Superman (Sundays, ABC). As a “really big science geek,” the fannish practices of her Trekkie science teacher (although not the fandom) had an impact: “A group of geek girls and our teacher always started the week by swapping opinions on the last night’s show.”


I still want to believe in Mulder and Scully.

There was a time when a fan would have to be home on Sunday night for M*A*S*H, Lois and Clark or The X-Files. During the VCR era, taping was not preferable to watching the series in real time, because “appointment viewing” helped to establish a viewing community. Back in the day, meeting up with a group of like-minded folks and watching the series (on the day it was first aired) acted as personalized event programming: a mini-con of friends indulging in their fandom with others. This kind of viewing, designed for old school network/ netlet broadcast platforms, has waned. By Veronica Mars, alternately loved and hated by many fans (both of us included), it was harder to maintain the weekly get together and easier to watch on the UPN/CW website, iTunes or stored at home with TiVo. While varying formats for viewing may alter the circumstances of a shared spectatorial moment, being able to archive episodes on DVR or to expect the quick turnaround onto DVD has made the marathon viewing experience a commonplace way to watch television programming. Although one may miss whatever your particular salad days of televisual fannish practice might have been, one fact remains constant: fan girls are made and not born.

Undoubtedly, our fan moments were highly influential in terms of our personal notions of distinction, identification, pleasure and quality: our fandom provided methods of carving out social space. However, the evolution of our specific taste cultures—whether designed to assimilate or to differentiate ourselves from the dreaded “mainstream”—remains an integral part of our fan girl identities. Throughout our coming-of-ages as fan girls, separated by two decades, we continued to re-position ourselves among shows that articulated a discourse about taste that wasn’t available outside of television. The interplay between “hipster” and “geek” was a common theme in our choices and in the style of these particular narratives: The X-Files and Buffy the Vampire Slayer are built on elaborate mythologies constructed with deadly seriousness as well as self-reflexive humor. Our investment increased as series’ taste positions were revealed, allowing us to enter and engage with the shows’ fan communities.


Inspiring Whedonists Everywhere: Joss Whedon and the cast of Buffy the Vampire Slayer (Season 5).

According to Haggins, the fan girl experience is associated with the passion for a series “and the need to make others understand it in the same nuanced terms that I do. It also has to be a show that not everybody will immediately appreciate.” While love for quickly lauded series (i.e. The Wire) does not require a fannish offensive to convince others of its quality, the fact that series like Buffy seem to need fans inspires our defensive loyalty. Furthermore, the imagined and real interaction between creative forces and those who, through repeated viewings, blogging and fan discourse, have gained series’ expertise feeds the desire to build community and to bring more people into the fold—whether on old school fan sites like David Duchovny Estrogen Brigade and The Bronze, or the fan boy/girl Mecca, Television without Pity. Haggins adds, “the conversion process and the joy of the viewing parties are huge parts of my fan girl ethos. …more with Buffy than X-Files. Heck, I developed a class to convert the masses. ‘Give me 5 episodes, I’ll make you a fan.’ Most the time I succeeded.”

“Making fans” became a pleasurable challenge and required a nuanced perspective on taste, cutting across “high” and “low” culture alike. Yet “making fans” also describes a process of self-education that we both identified as being critical to our experiences. The Internet was a frequent tool for gathering and collecting pieces of information, news, and gossip. In short, these were collected pieces of social capital to be exchanged and compared as part of the fan community. Jonsson describes what first made her feel like a fan girl: “Downloading sound files of BtVS quotables. I had all these sound files on the family computer, but I didn’t know what to do with them.”


The L Word fandom via podcasts from The Planet.

While we both understand and exercise fan-making behaviors, Jonsson, who grew up an online forager is comfortable with the notion that you can seek a community online that you can’t find at home. Haggins, a lurker, is not. Jonsson says, “I watch TV online on my own time (though I made a point of going downstairs to the big TV during the writers’ strike). I’m a fan of the podcast The Planet (for The L Word fans). I’m really more dedicated to the podcast than the show itself.” The podcast often positions itself in conflict with the series and provides a participatory collection of show knowledge and listener input, without which, it could not thrive. Jonsson cites having “limited expectations given the fact that the hosts have real lives and they’re doing this in their free time.” This does not negate the fact that fan investment—the effort, energy and time dedicated to develop a fluency regarding the narrative, production history and fan culture of a given show—also breeds high expectations.

The annals of our girl experiences end in the same vision of watching Veronica Mars—although Haggins saw it as a transition point in terms of a loss in the shared group experience of watching shows at the time they aired. We may no longer privilege the friends gathered around TV image but we still crave the fan exchange of ideas and expertise. Undoubtedly due, in part, to a global audience that will not be constrained by the inconvenience of regional broadcasting, something is happening to “liveness” that alters the way both of us assert ourselves as fans.


Fans—some with industrial cred—showed love and saved Veronica Mars (at least one time).

Fan girls know that—whether podcaster, lurker or scavenger—the more closely you monitor, the more you are rewarded as a fan. If constant practices of monitoring and marathon viewing overtake the “live moment” of a show’s original broadcast, do the social and community aspects of fandom change? Or is it possible that we might just become better fan girls?

Image Credits:
1. Lois and Clark was a first foray into fandom.
2. I still want to believe in Mulder and Scully.
3. Inspiring Whedonists Everywhere: Joss Whedon and the cast of Buffy the Vampire Slayer (Season 5).
4. The L Word fandom via podcasts from The Planet.
5. Fans—some with industrial cred—showed love and saved Veronica Mars (at least one time).

Please feel free to comment.

It’s a Kid’s World
Aaron Delwiche / Trinity University

Club Penguin

Club Penguin offers a continually updated array of clothing, accessories and furniture for players’ penguins. Though anyone can play the game for free, shopping is only an option to members who pay the monthly $6 subscription fee.

Earlier this year, in their 2008 Internet Investment Guide, analysts at JP Morgan declared that they were “bullish” on virtual worlds for children because such spaces allow kids to play in safe, closed, and branded spaces. Referencing research conducted by eMarketer, the report predicted that more than half of American children would regularly visit virtual worlds by 2011.

Club Penguin, which Walt Disney recently purchased for $700 million, is the most well-known of these branded worlds, but the arctic-themed playground is merely the tip of the iceberg. BarbieGirls, StarDolls, Lego Universe, Bella Sara, and Whyville are just a few of the virtual worlds that actively court children. According to the industry association Virtual Worlds Management, there are now more than 100 virtual worlds focusing on kids, tweens, and teens.

However, before you call your stock broker and rearrange your portfolio, you should be warned that the most important thing about youth-oriented virtual worlds is not the number of children immersed in these synthetic spaces. Nor, for that matter, is it the amount of money that advertisers and toy companies have poured into this sector. The truly amazing thing — the trend that deserves the most attention from industry analysts, scholars and parents alike — is the utter lack of imagination displayed in almost all of these on-line spaces.

For the most part, so-called “virtual worlds” aimed at youth are little more than paper-doll worlds in which players are encouraged to spend virtual money on their on-line avatars. In almost all of these spaces, the pattern is mind-numbingly familiar: Create avatar. Play games. Earn money. Shop for your avatar. Earn money. Shop for your avatar’s house. Earn money. Shop for your avatar. Earn money. Shop. Work. Shop. Work. Shop. Lather. Rinse. Repeat. The only thing that really differentiates each of these worlds from one another is the quality of the art direction and the intellectual property rights secured by the world’s creators.


Focused on “fame, fashion and friends,” StarDoll invites players to select outfits for celebrities such as Ashley Tilsdale, Miley Cyrus and the Jonas Brothers.

Ideological links between youth-oriented entertainment and global consumer culture are nothing new. Indeed, most people over the age of 30 can remember playing board games that inculcated hegemonic attitudes related to consumption (The Game of Life), acquisition (Monopoly and Pay Day), labor (Careers) and imperial expansion (Risk, Battle Ship, Stratego). But those were board games. At least in theory, virtual worlds are capable of offering more. So much is possible in these youth-oriented worlds, but so little is accomplished.

Consider the world of the Barbie Girls. At first glance, it might seem that a “paper doll world” would be the perfect way of translating the toy’s appeal to the on-line world. “After all,” one might ask, “isn’t Barbie just about dressing up dolls? Why not dress up dolls on-line?”

Barbie Girls(tm)

Fabulous fashion and fabulous bling. Barbie Girls(tm) get to have fabulous everything.

The answer, as any Barbie-savvy parent can attest, is that the dolls and the clothes are far less important than the stories that children develop around their toys. “Playing Barbies” is not about wrapping a piece of sweatshop-produced cloth around a piece of sweatshop-produced plastic. It is about children exercising the power of their imagination.

The virtual world Second Life may not be appropriate for children, but the platform makes it possible for beginning users to create their own three-dimensional content. As a result, residents have been able to create a far-flung, idea-rich world characterized by jaw-dropping, user-generated content. The platform also incorporates an accessible scripting language that makes it possible for users to assign actions and behaviors to the objects that they’ve created. In kid-oriented worlds, this degree of creative power is nowhere to be found.

Why not?

Youth marketers defend their anemic offerings by arguing that worlds like Second Life pose serious problems in terms of content moderation. As soon as open-ended content generation tools are folded into the environment, even a constrained chat window can be used to generate offensive content or to express potentially dangerous questions (e.g. “How old are you?” and “Where do you live?”). According to many platform operators, the creativity lockdown is necessary in order to protect users.

This is an easy excuse. Too easy. It does not hold up under further scrutiny. As Makena has demonstrated with their teen-oriented world There.Com, the threat of objectionable content can be minimized by developing a system for moderating all user-generated objects before they are instantiated in the virtual world. In a similar manner, the possibility of inappropriate solicitations can be addressed by deploying a team of human beings and bots who would scan the chat channels for dangerous interactions.

The myth that “branded virtual worlds” are a safe environment for children is particularly frustrating. We can all agree that on-line pedophiles are a tangible risk, but we have developed strategies to protect kids from the reach of such dangerous individuals. Parents and Internet service providers have spent more than a decade developing strategies for identifying such threats.

When one contemplates the explicit rationale that underpins youth-oriented virtual worlds, one has to wonder “Who is the real predator here? What about the companies who want to deliver my child’s ‘eyeballs’ to advertisers?” At a recent industry gathering, one panel un-ironically expressed the dominant mindset with the tag-line: “Kids and Tweens: Why virtual worlds are the new Saturday morning television.”

The thing is this: virtual worlds offer so much more than Saturday morning television. Even in these early days, when the technology is in its infancy, these tools are capable of unleashing the human imagination.

Within the next few years, someone will figure out how to weave multiple layers of user safety around a youth-oriented platform that offers the creative power of Second Life. When this happens, Club Penguin’s igloos will melt. When children are allowed to create their own “Never Never Land” rather than just playing in branded sandboxes created by boring adults, there will be massive defections from the worlds of Barbies, Webkinz, and StarDolls. The shackles will be empty, and the children will be free.

I can hardly wait.

Image Credits:
1. Club Penguin
2. StarDoll
3. Barbie Girls(tm)

Please feel free to comment.

Horribly Guilty Television

Ron Becker / Miami University

Horribly Guilty Television: HGTV and the Promotion of America’s Ownership Society

House Hunters

HGTV’s House Hunters host Suzanne Whang.

I am ashamed to admit that I am obsessed with HGTV, which, for me, is classic potato-chip television; I may decide to watch an episode of Curb Appeal but invariably end up gorging on an entire afternoon’s lineup.

HGTV is my most painful guilty pleasure not because it has to be about some of the cheapest and most formulaic programming around (if you’ve seen House Hunters you know what I mean). Not because it lacks the any markers of “supposed” highbrow respectability (like, say, The Wire). And certainly not because it is ostensibly women’s programming. I am ashamed because as much as any corner of the television universe, HGTV reflects and in its way, I’d suspect, has helped fuel the unfettered consumerism and neoliberal politics that have helped put millions of American homeowners into foreclosure and bankruptcy and that are threatening the economic stability and environmental viability of our society. (Yes, I’m just a bit pessimistic these days.)

Mortgage Crisis

The subprime mortgage crisis has dramatically increased the number of foreclosures in the United States.

Of course the real estate bubble, ex-urban sprawl, and consumer debt loads were enabled by the deregulation of the mortgage industry, unscrupulous corporate business practices, and the kind of bandwagon-psychology that can creep into any market. But they were also reinforced by Bush’s advocacy of an ownership society and cultural assumptions about the importance and appeal of being a homeowner. By the early 2000s, to not get into the real estate market seemed irresponsible and to not want to seemed inconceivable. Ideological constructions that had long juxtaposed the nurturing sanctity of the private home against the heartlessness of the public sphere and its market forces seemed to be dramatically remodeled. Investment calculations and hearth-and-home romanticizations easily blend; granite countertops become the foundation for both economic and moral security.


Such ideological shifts can undoubtedly be traced in HGTV’s re-invention of home-centered reality programming. PBS’s long-running This Old House, for example, had long educated viewers about home renovation by following the ins-and-outs of one complex project over the course of an entire TV season. What took a months on PBS, however, takes a mere 22 minutes on an episode of New Spaces, Save My Bath, and Spice Up My Kitchen, and an ethos of re-use gets replaced by the pleasures of instant gratification and the spectacle of the new. Meanwhile, in contrast to Lifetsyles of the Rich and Famous and Cribs (which foregrounded the exceptional nature of the homes of celebrities and the overtly wealthy), many of HGTV’s shows (e.g., Divine Design, New Spaces, Curb Appeal) normalize upper-class living by hiding (rather than highlighting) the class privilege required to have custom cabinetry and glass tiled-backsplashes. (Even more relatively downscale shows like Design on a Dime naturalize homeownership and investment.)

Many of the channel’s real estate shows (House Hunters, House Hunters International, National Open House, Property Virgins, My First Place) upscale expectations while also normalizing and narrativizing participation in an over-priced real estate market. (Given the aspirational agenda of a channel reliant on sponsors like Lowe’s, most shows predictably featured houses priced above the median). HGTV’s truly innovative “realty TV” programs make buying and selling $300,000 houses exciting and easy. For example, they usually ignored the profound anxieties of home inspections and mortgage negotiations (though perhaps in doing so accurately reflected the actual market where lenders, brokers, and inspection agents allegedly conspired to make buying a home dangerously easy). They also ignore contentious price-negotiations and bidding wars. Here, everyone gets the house they want; everyone–the buyers and the sellers–win; no one loses. Who wouldn’t want to get involved in such exciting stories that always have a happy ending?

One would expect that HGTV has had to change its strategies in the face of the current foreclosure crisis. Last year, for example, I had to stop watching my favorite shows when my partner and I got caught in the sinking housing market. For some reason, watching HGTV just wasn’t that enjoyable as our house sat on the market for 4 months. In general, however, the channel’s lineup hasn’t changed dramatically. Granted, shows like 25 Biggest Real Estate Mistakes, Sell My House, My House Is Worth What? and Designed to Sell address recent anxieties by focusing on the importance and power of home staging in a competitive market. But even these shows promote the assumption that homeowners who follow the advice about investing in one’s home through proper renovation and design efforts will still be able to sell their homes and get the price they “deserve.” HGTV may have to work a bit harder, but it is still committed to maintaining an ideology of homeownership. Given the channels’ sponsorship base and the fact that the channel relies heavily on reruns of previous seasons’ episodes, it makes sense. After all, scheduling new shows that openly grapple with the crisis would merely foreground just how out of touch the reruns are. HGTV’s investment in promoting its myths about homeownership is highly overdetermined.


And its current strategy of denial may just work. Barely a year after our house sold (for $30,000 less than we expected), I have returned to HGTV. I love trying to guess which Buenos Aires condo the Michigan lawyer will pick, and I love seeing what recessed-lighting magic Candice Olson will unleash on the next gloomy basement family room. Of course my pleasure speaks volumes about my own privilege. But I think it also speaks to the seductive appeal of HGTV’s spectacles and narratives of homeownership. And it may also speak to the fragmentation of TV viewing, the individuation of citizenship, and the economics of boutique cable channels. HGTV may be losing those viewers who had been seduced into buying an overpriced priced house, but to be honest, those viewers wouldn’t realistically be in the channel’s target audience any more, would they.

I suspect you can understand why I feel guilty.


The logo for Home and Garden Television.

Image Credits:
1. HGTV’s House Hunters host Suzanne Whang.
2. The subprime mortgage crisis has dramatically increased the number of foreclosures in the United States.
3. The logo for Home and Garden Television.

Please feel free to comment.

“Why in the world won’t they take my money?” – Hulu, iTunes, and the value of attention

Joshua Green / MIT

Since cutting the cable a few months ago, I have been relying a lot on Hulu, the recently launched joint venture between NBC Universal and News Corp., to make up the content deficit. Designed as a central distribution site to deliver “premium content” online, it draws together programming from NBC and Fox stables, as well as a smattering of material from Sony and Warner Brothers, and wraps it all up in a reasonably easy to navigate and simple to operate interface. A solution to having to pick through individual network sites in order to catch up on content, the service also provides a reasonably large and seemingly rapidly developing catalog of older material, meaning Saturday afternoons can be spent with back-to-back episodes of The A-Team and under-appreciated wonders like Total Recall 2070 (a Canadian/German co-production). As the online video market in the US becomes a little crowded, Hulu is impressive in both its simplicity and catalog, including full and regularly updated seasons of many current and past programs. But the site also reveals some of the frictions caused by the lumpy move of television towards a service more and more defined by first-order commodity relations, and the adjustment of television’s organizational and audience modes in turn. A brief glance across the comments left on the service point to some of the expectations audiences bring about the value of attention and viewership outside of the broadcast sphere.

Hulu banner

Hulu.com banner

Hulu sits somewhere between broadcast and video-on-demand models of television. Advertiser supported, the service inserts usually a single 30-second advert into each of the commercial breaks structured into American programming. Each program is presented as sponsored by a particular advertiser, meaning one advertiser per program appear in these breaks (often, annoyingly the same commercial). This porting of the advertising model of broadcast television, however reduced, is an attraction for companies such as General Motors, who see Hulu as something of an extension of their broadcast spend (Dana and Steel, 2008). The service provides advertisers with a ‘safe’ space, an antithesis to sites that rely on user-created video, which brings with it risks in terms of quality and appropriateness of content — on Hulu there are guarantees the materials won’t offend any more than prime-time television.

This advertising model also provides the kind of direct connection between television content and online advertising dollars some media companies, NBC among them, found lacking on YouTube. Much like Viacom (Becker, 2007), NBC it seems became convinced the promotional value of having content on YouTube did not outweigh the financial returns gleaned from the revenue-sharing deals Google was offering (Broache and Sandoval 2007; Garritty, 2007; Kornitschnig, 2007). Frustrated at having to police content and seeing ad dollars not coming exclusively back to the rights holder, NBC committed to developing Hulu as an “official” alternative, where rights holders have complete control over the appearance of clips (rather than needing to take responsibility for their disappearance) and where third parties don’t intersect the revenue streams — an issue that also contributed to NBC severing its relationship with Apple’s iTunes service in 2007 (Barnes, 2007). These three factors — the perception Hulu is an official alternative to YouTube, that rights holders are responsible for the distribution of content across the service, and that the service might fill the void left by NBC’s withdrawal from iTunes — seem to influence the perceptions some viewers bring to the site, and the value they ascribe to their attention.

Organized around an on-demand model, viewing the advertisements is often seen by viewers as direct payment for access to programming on the site. Television audiences have, of course, long been aware of viewing ads as the ‘payment’ for television content, but this relationship seems foregrounded on Hulu. Many of those commenting point out that they would happily offer more attention in exchange for content, particularly anywhere seasons are incomplete. Writes one viewer:

I’ll put up with more ads if it means getting this content [previous seasons] added. You should create a ad watch vs. rating for show system. Just don’t overload the ads.

Similarly, some viewers point to their attention as an indicator of a market force that should be acknowledged, especially where little more than a collection of ‘clips’ from programs appear:

Why would we want to see a fraction of our favorite shows when we can download them for free? The reason I use your service is convenience, and clips are not convenient. If you want to sustain your advertising revenue I suggest you get more full episodes. THE USERS HAVE SPOKEN!

Regularly, viewers point out that Hulu is competing with ‘free’, and that the bargaining chip Hulu possesses is access to official copies. While the content offered might be of higher quality and assuredly legal, the real point of differentiation for the service is episode duration:

No full episodes = bad. If I wanted to see excerpts, I’d go to youtube.

Remarks such as these turn up regularly, although they don’t dominate the comments on the service, many of which review or discuss the respective programs (the only place to leave a comment is a section labeled “User Reviews”), or offer some praise to the service for making content available. It is also not uncommon to find a commenter pointing to the market logics of DVD distribution as a reason only a limited amount of content is available, though it is usually in a tone that suggests Hulu is ultimately under serving the audience, in this case, in order to preserve another, more valuable market.

I can afford cable monetarily, but simply won’t spend 20 minutes of every hour watching commercials—it’s simply not worth it. I’m happy, though to pay $1.99 to watch an episode without commercials. Happy, that is, until Bravo yanked Project Runway off of iTunes. Seriously, how much does Bravo make off of a single viewer? Why in the world won’t they take my money to watch a show?

These complaints, of course, are not new, and I don’t wish to suggest Hulu has in some way produced this attitude. Ratings systems and audience measurement are not democracies nor true free markets, and to a certain extent, the idea of being a slighted viewer in a marginal audience segment, the value of whose viewership is ignored, is somewhat fundamental to the television audience experience. If anything, Hulu merely makes this experience visible by providing an avenue alongside insubstantial schedules where the audience can speak back. Where previously these activities took place in lounge rooms and on Internet forums, all Hulu does is bring them into direct contact with the program itself.

At the same time, however, there seems to be a suggestion undergirding these comments that the service, given its official status, is bound to respond to the market. Lucas Hilderbrand (2007), writing about the disappointment of finding content removed from YouTube, suggests expectations for availability have been extended and exaggerated by “[t]he Internet, Google, and YouTube,” such that “[e]xpectations for access have developed into a sense of access entitlement” (p. 50). While I’m not sure I would go so far as to suggest a sense of access entitlement, certainly looking at negative comments on Hulu reveal an expectation of access and demands of availability. In one sense, these viewers seem to be holding the entertainment industry to its message that digital distribution needed to be legitimated through a business model. Rather than routing around official sources, these audience members are using the currencies they’ve been prescribed to go through the front door and ultimately finding them lacking. Maybe had the industry not criminalized file-sharing and the redactional (see Hartley, 2007) activities of YouTube, some audiences would be more forgiving.

These patterns of relation reveal mixed messages about the value of audience attention and Hulu certainly isn’t alone in sending them. CBS’ recent decision to resurrect post-apocalyptic drama Jericho after a determined and attention-grabbing fan campaign suggested initially that perhaps non-broadcast audiences were enough to influence the economics of the industry. After all, the myth goes that Jericho had been especially popular with DVR viewers and those using CBS’ Innertube service (Wyatt, 2007), and a fan campaign was enough for CBS to recognize they were out there. No sooner had the program been revived, however, were fans told that in order to show their continued support they would need to transform into a different sort of viewer – the regularly-scheduled-at-8pm-kind planted in front of the broadcast. Not just that, but they would need to encourage others to join them. Adding insult to injury, fans were offered a somewhat compromised second season, with a smaller cast and less sophisticated production.

Jericho promotional image

Jericho promotional image

That Jericho didn’t survive season two should come as no surprise; the program was ultimately made dependent upon none of the audiences who made it popular in the first place. Indeed, it would seem that the network itself ultimately disavowed the very modes of attention that supported the show and characterized the viewers who rallied to bring it back. Similarly, there is a sense at times on Hulu that audiences who are doing everything that they’re asked are ultimately being ignored.

This is, of course, too broad a perspective on Hulu; relationships between the site and its viewers are much more complex than an ignored and demanding audience and broadcasters defending existing revenue at the expense of new. While the value of online advertising is on the increase, particularly in relation to traditional television spending, the industry is still organized according to a series of logics and practices that privilege first-run broadcast economics. This is a fact audiences are aware of; even if they don’t fully appreciate the constraints such logics and conditions might place upon networks. Yet the broadcast model doesn’t wholly fit the patterns of audienceship across the site, and we need to rethink the way audience attention is accounted for, and the expectations of behavior imposed by the adaptation of broadcast models to the online space.

Works Cited

Barnes, Brooks (2007) “NBC Will Not Renew ITunes Contract,” The New York Times, 31 August.

Becker, Anne (2007) “YouTube to Viacom: We Will Pull Your Clips,” Broadcasting and Cable, 2 February.

Broache, Anne and Greg Sandoval (2007) “Viacom sues Google over YouTube clips,” CNET News.com, 13 March.

Garritty, Brian (2007) “Video Screen Goes Dark For Nbc-Youtube Channel,” New York Post, 23 October.

Hartley, John (2007) TV Truths, London: Blackwell.

Hilderbrand, Lucas (2007) “Youtube: Where Cultural Memory And Copyright Converge,” Film Quarterly, 61(1), pp.48-57.

Karnitschnig, Matthew (2007) “Viacom Orders Removal Of Videos From YouTube,” The Wall Street Journal, 3 February.

Wyatt, Edward (2007) “CBS Revives ‘Jericho,’ With a Plea to Fans,” The New York Times, 9 June.

Image Credits:
1. Hulu.com banner
2. Jericho promotional image

Please feel free to comment.

Critical Art on Trial

Joan Hawkins / University of Indiana, Bloomington

CAEs Cult of the New Eve project

CAE’s Cult of the New Eve project

In Lost Subjects, Contested Objects, a slender and elegant volume on pedagogy and psychoanalytic theories of learning, Deborah Britzman makes the following observation: “artists ask us..to imagine that communities are something to do, something to make. And with these… perhaps education can begin.” ((Deborah Britzman, Lost Subjects, Contested Objects: Toward a Psychoanalytic Inquiry of Learning (New York: State University of New York Press, 1998) p. 60)) This certainly describes the artistic and pedagogical enterprise of the Critical Art Ensemble, a media and installation group whose founder is currently under indictment for cultural practices which the federal government originally linked to bioterrorism. Subsequently the charges were changed to mail fraud. Under the Patriot Act, prison sentences for mail fraud can extend to 20 years.

The Critical Art Ensemble (CAE) is “a collective of five artists of various specializations dedicated to exploring the intersections between art, technology, radical politics and critical theory.” ((See the Critical Art Ensemble website– http://www.critical-art.net/)) The group formed in 1987. Their earliest media productions were what might be called “traditional” avant-garde art. That is to say they were made for people with a certain kind of cultural capital, who could easily get the references and enjoy the jokes. In the 1990s, CAE began engaging in direct political action, advocating what they called “digital disobedience.” They also wrote slim theoretical texts that simultaneously engaged ongoing debates in media theory and advocated a return to macropolitics. Electronic Disturbance (NY: Autonomedia, 1994) is perhaps the best known of these.

CAEs Flesh Machine project

CAE’s Flesh Machine project

Most recently, CAE has begun using media and real materials to blur the lines between art as largely symbolic provocation and art as a pedagogical tool designed to put information directly in the hands of the people. Organizing installations and theatrical events around such topics as bio-genetic modification of food, eugenics, and biological warfare, CAE has begun to see themselves as “tactical media practitioners” rather than as artists. ((It is interesting to note that while the CAE still views itself as a media group, they have received very little academic or critical attention from media scholars. To date, the best and most complete analysis of their work has appeared in drama journals. See particularly Rebecca Schneider’s articles in The Drama Review. The Drama Review articles are archived at muse.jhu.edu/journals/tdr)) They maintain a strong web presence, posting graphics and text from their already-mediated shows online. Their goal is to use media to make a radical intervention in the Spectacle.

Critical Art Ensemble installations look something like open science classrooms. There are art works on the walls and around the gallery, but the majority of space is taken up by computers and lab equipment. Members of the collective, dressed in white coats, lead visitors through scientific experiments with inert chemical compounds, encouraging them to get first hand knowledge of what happens to organisms under certain conditions. Computer stations provide textual information about the nature of various compounds and their effects on the human body and on the environment. Members of CAE are largely self-taught in science and part of their mission is to demystify science, to convince an increasingly befuddled public that science can be understood by educated lay people. They encourage citizens to make informed decisions about the biological and chemical substances which have become such a part of everyday life. This work has put the group at odds with large corporate interests. When CAE targeted a Monsanto product, RoundUp Ready Plants, in its exhibitions at the Corcoran Gallerywidth=350 in Washington D.C., and at the World Information Organization in Amsterdam, Monsanto obtained cease and desist orders. ((See Stephanie Kane and Pauline Greenhill, “A Feminist Perspective on Bioterror: From Anthrax to Critical Art Ensemble” Signs Volume 33, Number 1 (Autumn 2007) p. 60)) But, as Stephanie Kane and Pauline Greenhill note, until recently “CAE regarded the condemnations and threats from police, lawyers, churches, political figures, and the FBI as part of the rough-and-tumble of public reactions to provocative public art. Indeed, in the past CAE has been encouraged by critical dialogue. The charge of bioterrorism, however, shifts the terms of the debate.” (60).

CAEs GenTerra project

CAE’s GenTerra project

The Case

On May 11, 2004, Steve Kurtz phoned 911, after waking to find his wife—Hope Kurtz– unconscious in bed beside him. Ms. Kurtz had died in her sleep. But it was not only her death that worried the emergency aid team that came in response to Kurtz’s call, but also the laboratory equipment and inert biological compounds which Mr. Kurtz uses as part of his art work and which he had stored in his home. The 911 team phoned the FBI (this is where things get murky — because the group that actually came was the Joint Terrorist Task Force). Steve Kurtz was arrested on suspicion of bio-terrorism. Hope Kurtz’s body was impounded (which meant that it couldn’t be released for a funeral). Kurtz’s equipment, computer, art supplies, books, films and biological material were confiscated. The Joint Terrorist Task Force Agents also took Mr. Kurtz’s car, his house, and his cat.

Authorities searched Kurtz’s home and tested the biological material for two days, before declaring that there was no public health risk in Kurtz’s work and that no toxic material had been found. Kurtz was allowed to return to his home on May 17, his car and cat were released, and his wife’s death was attributed to heart failure. But while the case should have ended there, it was only beginning. In June, Kurtz and other members of the Critical Art Ensemble were brought before the Grand Jury and again investigated on the charge of bio-terrorism. Again it was found that there was no evidence that any members of the Critical Art Ensemble had been involved in bio-terrorism. Nonetheless, their case was referred to a Federal District Court and on July 8, 2004 the Federal District Court in Buffalo charged the Defendants with four counts of mail and wire fraud, charges connected with the purchase of the inert biological material used in their installation work. Dr. Robert Ferrell, Professor of Genetics at the University of Pittsburgh, the researcher who helped CAE procure the biological material, was similarly indicted. They were enjoined from performance, travel, or even speaking about the case. In addition, Mr. Kurtz has been subject to random visits from a probation officer and to periodic drug tests.

Joint Terrorism Task Forces

Joint Terrorism Task Forces searches Professor Steven Kurtz’s home

The art community has been understandably nervous about the chilling effect of the case and has rallied to Mr. Kurtz’s defense. But the scientific community, too, has been disturbed. A guilty verdict against Mr. Kurtz could have serious implications for scientists who wish to share research—including inert compounds—with colleagues.

Space does not permit a full account of the history of the case to date. The Critical Art Ensemble Defense Fund website has excellent coverage for people who wish to know more about the judicial status of Dr. Ferrell and Mr. Kurtz. And Lynn Hershman Leeson’s award winning film about the case, Strange Culture (2007) is a good resource and help (Leeson is donating money from DVD purchases and rentals to the CAE defense fund). As Britzman notes in the quote I cited at the beginning of this column, artists ask us to imagine that “communities are something to do, something to make.” What those of us following the case are wondering now is precisely what kinds of communities—real or virtual—we will be able to make once the CAE case is decided.


The two paragraphs describing the case originally appeared as part of a longer article on the Critical Art Ensemble. See Hawkins, “When Taste Politics Meet Terror: The Critical Art Ensemble on Trial.” Published by CTheory June 14, 2005. Archived at http://www.ctheory.net/articles.aspx?id=482

I owe special thanks to CTheory, Marlene Costa, Skip Hawkins, Stephanie Kane, and Steve Kurtz.

Image Credits:
1. CAE’s Cult of the New Eve project
2. CAE’s Flesh Machine project
3. CAE’s GenTerra project
4. Joint Terrorism Task Forces searches Professor Steven Kurtz’s home

Please feel free to comment.

Follow the Money: Let’s be Upfront about the Infronts

Jennifer Holt / UCSB

NBCs Ben Silverman

NBC’s Ben Silverman

Last week, NBC unveiled a “supersized” 65-week schedule (through Summer 2009) to advertisers and journalists in a stripped-down version of the upfronts—those glitzy presentations that unveil network prime-time lineups to much fanfare each May. This ritual is more than just publicity, though; the upfronts are also a $9 billion market (and that’s just for primetime) where sponsors buy advertising time before the season begins. For both networks and advertisers, this is a mutually beneficial opportunity for risk reduction – the networks unload between 80-90% of their ad inventory in advance and advertisers save money by locking in rates on potential hits that would be far pricier buys if the shows were to find a big audience.

This year, however, just as President and CEO Jeff Zucker has repeatedly promised over the last six months, NBC offered a radical alternative to the traditional over-the-top “razzle-dazzle and surfeit of shrimp” as the upfronts were recently described in Variety. ((Adalian and Schneider, p.14)) Instead, the network’s chief executives are having a series of low-key meetings with advertisers to present new shows and strategies, minus the seductive parties…and calling them “the infronts.”

Much of the press discourse on NBC’s “infronts” –which took place 6 weeks before the other networks’ upfronts – has been focused on describing the new lineup with giddy anticipation. The rest has been devoted to speculation as to whether or not wunderkind Ben Silverman, the recently appointed Co-Chairman of NBC Entertainment and Universal Media Studios, had pulled off the minimalist makeover of such a vaunted tradition.

Silverman arrived last June at an NBC that has been stuck in last place for almost four years now. He was charged with developing NBC’s prime-time, overseeing production and creating innovative digital strategies in order to pull the company out of the ratings gutter and into the era of “360-degree distribution,” where content is delivered anytime, via multiple platforms, whenever the viewer wants. After 10 months, a renewed devotion to “product integration” by any means necessary and a smooth reception last week, the verdict seems to be that Silverman has pulled it off.

Friday Night Lights

Friday Night Lights

In fact, he has pulled off much more than launching a successful “infront”: he has made self-dealing expected and even non-controversial in the current business climate. This year, all of the scripted series ordered by NBC went to sister company Universal Media Studios, except for three that went to international producers. ((Gough and Andreeva)) That is to say, no studio competitor or independent production company received an order for their projects. When adding the six new series ((My Own Worst Enemy, Knight Rider, Kings, The Philanthropist, The Office spinoff, Kath & Kim)) to the ones already airing in prime-time that NBC Universal has an ownership stake in (such as The Biggest Loser, Lipstick Jungle, Life, The Office, 30 Rock, Heroes, Friday Night Lights, American Gladiators and, of course, the motherlode Law & Order franchise), the result is one very self-involved programming strategy.

More than any other network, NBC has embraced a game plan of buying its own product. Even more glaring are the deals that the network has made with Reveille, a phenomenally successful production company and one of NBC’s chief suppliers. The company, based on NBC’s lot, produces The Office, The Biggest Loser and American Gladiators among others. Silverman first began his tenure as NBC’s chief programmer while he also owned Reveille. In the 9 months from June ’07 when he began at NBC to February ’08 when he sold his company for $125 million (to Rupert Murdoch’s daughter, Elisabeth), Reveille sold 14 shows and scripts to NBC. Prior to his hire, the company had only 3 projects at the network. ((See James and Lauria))

Michael Scott The Office

Michael Scott, The Office

It is quite surprising, even in this business, that such a blatant conflict of interest was not a larger issue in the press or even at the network. Of course, Silverman is not the first to be in such a position. At the very same network, Grant Tinker also went from producer to network executive when he became Chairman and CEO of NBC in 1981 (notably, the network was in last place at that time as well). Tinker eventually sold his interest in MTM, which had Hill St. Blues on NBC at the time of his arrival. He later commented on the sale of MTM, saying that while the terms of the deal were not optimal for him, “You can’t be buying programs and selling them at the same time.” ((James))

And yet in 2008 it appears that you can do both, indeed now more than ever. In the days before the financial interest and syndication laws (“fin-syn”), networks monopolized their prime-time schedules with homegrown product, forcing the hand of regulators to forestall vertical integration in the television industry. Since the repeal of fin-syn in 1995, networks have owned increasingly larger percentages of their prime-time schedules, growing to over 70% at various times. This process has appeared to be somewhat gradual and (except for the self-dealing lawsuits in the late 1990s) occurring under the radar of most press accounts. ((For more on this process as it has evolved in the present television landscape, see Chapter 3, “Making Television” in Amanda Lotz, The Television Will Be Revolutionized, NYU Press, 2007.))

In the last 2-3 years, however, the commitment to program ownership has taken on renewed intensity at the networks. TV’s business model is currently dying at the hands of digital technologies, and executives are frantically searching for new ways to repurpose content for aftermarkets and “monetize” their programming– via webstreaming, digital distribution or even on DVD. In order to maximize exposure during a show’s initial run and profit from new technologies in the long term, owning the product is key. The recent writer’s strike was a dramatic expression of how crucial the issue of ownership has become in the consolidated entertainment landscape, and NBC’s current schedule is yet another reminder of that fact. Perhaps the absence of fancy buffets and open bars at the “infronts” is even more evidence of the same reality: as the stakes and stakeholders in the television industry continue to evolve, and as networks produce more of their own schedules, the business becomes less about serving others and more about serving yourself.


Adalian, Josef and Michael Schneider, “Upfront Upheaval,” Variety, March 31-April 4, 2008, p. 14.

Gough, Paul J. and Nellie Andreeva, “NBC Presents Shows, Strategy at Upfront,” Hollywood Reporter, April 2, 2008.

James, Meg, “NBC’s Silverman Sells Production Company,” Los Angeles Times, February 14, 2008.

Lauria, Peter, “Shine on Sale by Silverman,” New York Post, February 15, 2008

Image Credits:
1. NBC’s Ben Silverman
2. Friday Night Lights
3. Michael Scott, The Office

Additional Reading:

Belloni, Matthew. “It’s Ten O’Clock. Do You Know Where Your Network President Is?” Esquire, November 8, 2007.

Weprin, Alex, “Upfront and Center: NBC Unveils 2008-09 Season,” Broadcasting and Cable, April 2, 2008.

Please feel free to comment.

Has the DTV Tsunami Arrived?

Mitchell Szczepanczyk / Chicago Media Action

Converter Box

Converter Box

In a pair of previous columns for FlowTV.org, I’ve outlined the concerns over the conversion of television across the United States to an all-digital format, required by law to occur on February 18, 2009. While many of the benefits of the conversion have been touted, many of the growing concerns and problems involved with the conversion and its aftermath for perhaps 50 million American analog TV viewers have seen little light. While publicity and awareness have been increasing, that has not translated into improved actions. Indeed, we are now less than one year until the time the conversion is to take place and we stand well shy of the effort needed for a smooth conversion. Instead we are seeing the makings of a perfect storm on the DTV front, which like other perfect storms could leave a trail of ruin in its wake.

Countdown to education, or to disaster?

The media business press is reporting that the FCC is telling TV broadcasters to significantly escalate awareness of the digital conversion, which includes the following:

–Setting minimum requirements of public service announcements at all times of the broadcast day, and increasing the number of announcements as we get closer to February 18.

–Having broadcasters display a “crawl” (as it’s called) scroll at the bottom of TV screens, along with a “countdown clock” in the days before February 18.

If broadcasters abide by these mandates – and that’s not a given, since commercial broadcasters have a history of fiercely fighting public service mandates – it could rank as a coordinated awareness campaign without parallel in American television broadcasting history. (By comparison, the commercial blackout on TV lasted for a couple of weeks at most; the DTV awareness campaign stands to last three months long.) But publicity and awareness don’t necessarily translate into informed decision-making power, which surveys say more than anything is what consumers want most out of this, and which surveys also say consumers are not getting amid the DTV conversion.

Panic at the voucher program for converter boxes?

There had been a long-touted voucher program, with more than a billion dollars allotted to fund coupons that would offset the costs of digital-to-analog converter boxes for eligible households. But among the very problems with this program, one very frightening problem has come to light: the coupons have an expiration date in May.

Consumers Union reported that the coupons in the voucher program have a 90-day expiration date from the date when the first coupons are mailed out by the National Telecommunications and Information Administration (NTIA), the government agency tasked with administering the voucher program. With the first coupons going out in late February 2009, all of the coupons expire sometime in late May. Why Congress included an expiration date on the coupon program remains unclear, but what could be very clear is that the program that’s the lynchpin for helping consumers most could prove utterly useless in late 2008 and early 2009 when it’s most pressingly needed.

Incidentally, the head of the NTIA, Meredith Baker, has left the NTIA, and became the second NTIA head to leave the agency in five months (previous head John Kneuer left right before Thanksgiving 2007).

HD Gear

HD Gear

Meanwhile, the National Association of Broadcasters (NAB), the trade lobby of commercial broadcasters, has been calling for digital converters to be sold in grocery stores to make digital converter box access easier for consumers. Whether or not this proposal will translate into tangible action remains to be seen.

Small broadcasters weigh in with a big lawsuit and a big problem

And the entire voucher program is facing a lawsuit, curiously enough, by broadcasters themselves. The Community Broadcasters Association (CBA) – an organization representing some 2,600 low-power TV stations – is suing the Federal Communications Commission (FCC) over a ban of convertor boxes that don’t also allow for analog signals.

CBA member stations aren’t affected by the 2009 conversion; small broadcasters don’t have to convert to digital until the year 2012. But consumers who receive CBA-member TV signals may not realize that installing the converter boxes would have the unintended effect of blocking analog signals from still-analog low-power TV stations.

In other words, the entire converter box program, which was intended to help those people, might well have the ironic and unintended effect of shutting off television for millions of Americans. And while many people justifiably criticize TV as being a “vast wasteland” (to borrow Newton Minow’s famous phrase), most Americans still rely on TV as their main source of news, weather, and emergency information.

CBA Logo

CBA Logo

This is a particularly acute concern since CBA’s member stations address those audiences most likely to lose TV access as a result of the DTV conversion – rural communities, underserved urban communities, the elderly, and those communities that don’t speak English. A catch-22 thus ensues: If you get a convertor, you might lose TV by blocking your nearby small-power analog stations. If you don’t participate, you lose TV by not getting the big boys who will go all digital in 2009.

Calls for a DTV test market finally win muster, but is it too late?

For years, there had been calls, including by FCC Commissioner Michael Copps, for a small-scale test of the DTV conversion to better understand the likely impact of the DTV conversion as currently set up. The calls went little heeded, but in early March 2008, FCC chair Kevin Martin – who previously dismissed requests for such a test as not having enough time to prove effective — has announced his willingness to pursue a test.

The calls are also being echoed in Congress on a bipartisan basis. In mid-March 2008, Florida Republican representative Cliff Stearns, a member of the House Telecommunications & Internet Subcommittee, has also gone on record saying he would like to see an advance test in place.

While it is heartening to see such calls for a test finally gain some serious momentum, one has to wonder: Why wait until 11 months before the nationwide DTV conversion is scheduled to take place to hold a test? And moreover, even if a test can be held, and reveals gaps in the implementation of the conversion, can action be taken in time to remedy those gaps?

10 months of DTV Tsunami “surprises” still await

All of the developments in this article have come to light just in the last two months. Few of them have been positive.

With ten months to remain before perhaps the most impactful technical change in the history of American television, and the conversion in the U.S. itself resembling a Keystone Kops film, what other surprises lie in wait? And, most crucially of all, can Americans respond in time?

Image Credits:
1. Converter Box
2. HD Gear
3. CBA Logo

Please feel free to comment.

Do We Need a Gay Rights Saving Time?

Kathleen Battles / Oakland University

Danny Noriega and Rosie O\'Donnel

Danny Noriega with Rosie O’Donnell.

As we went through our annual ode to inanity, daylight savings time, I was feeling extra cranky about the loss of a precious hour of my beauty sleep. Yet, lately, I’ve been feeling robbed of about 10 years when it comes to the representations of gays and lesbians on television. I know what some of you are thinking: certainly things are better now! Not only are there queer characters, but a growing number of gay and lesbian celebrities populate the television world. Yet, several recent incidents leave me feeling angry. In negotiating the complicated terrain of queer visibility on television there remains a remarkable tendency to equate queerness with deviancy in a manner that reinforces the most central tenant of heteronormalization. The assertion of deviance is evident in the positioning of queer performances of self, and in straight performances of heterosexual fantasies of queerness as exemplified by the containment of Danny Noriega on American Idol and locker room applause for Ben Affleck’s appearance in late night talk show host Jimmy Kimmel’s “I’m F*ing Ben Affleck” video.

While American Idol has featured any number of gay contestants over the years, they have largely kept their identity under wraps. ((This includes this season’s contestant, David Hernandez, who was outed by several Internet sources as a gay stripper. The tortured ways that this revelation has filtered through the discourses about the program would take another column.)) Then came Danny Noriega – young, confident, and unabashedly queer. His performance of queerness involved an unrelenting dose of “in your face” attitude. In his three weeks as contestant, Noriega faced contradictory attempts to both celebrate and discipline his queer performance of self.

For the first week’s ’50s theme, Danny “selected” the Elvis Presley classic, “Jailhouse Rock.” ((http://www.ew.com/ew/article/0,,20180685,00.html)) (Someone at AI must have had a sense of humor to send him out with the song in the first place.) In his pre-performance video package, he declares his intention to bring his swagger and attitude to stage, using his best queer body language. Dressed in low rise jeans, shirt and tie, Danny works himself up into a sweat parading around stage. Does he sing the song well? Who knows, that really is beside the point on American Idol. The more important question is how will the judges respond. While Randy and Paula are mostly positive in their comments, acerbic judge Simon Cowell issued his judgement: “verging on grotesque”.


Of course Simon is known for his cruel remarks to contestants, but certainly the term “grotesque” has a special register, not merely dismissing the performance for its lack of quality, but for associating Noriega himself with the monstrous. Within the context of many seasons of homophobic banter between Simon and metro-sexual host, Ryan Seacrest (whose own sexuality is a frequent source of media speculation), the accusation takes on extra weight. Noriega himself seems somewhat unfazed by the accusation, but Seacrest in the post performance interview, presses him, reiterating the word no less than three times.

[youtube]http://www.youtube.com/watch?v=ICCIhkq4LHs [/youtube]

Danny sang the restrained ballad, “Superstar,” for his second performance with more earnestness than swagger, and Simon likewise exercised restraint in his comments. But when the swagger returned for Danny’s performance of gay dance club anthem, “Tainted Love,” during eighties week, so did the negative remarks. Whether it was Simon’s comments, the quality of Danny’s musical performance, or the queerness of his performance of self, this would mark his last week on the program. As a crushed Noriega stood on the stage for that weekly commodified spectacle of pain and shame known as the “elimination,” host Ryan Seacrest applauded him as “one our most courageous performers ever,” an obvious reference to Noriega’s unapologetic queerness. While one might call any American Idol contestant brave for living through the truly horrific group medley numbers, here Noriega’s bravery is highlighted in a way that suggests that his queerness is potentially shameful.

[youtube]http://www.youtube.com/watch?v=zw6rgyHiykw&NR=1 [/youtube]

If Noriega’s performance of self necessitated discipline, Ben Affleck’s performance of playground stereotypes about gay men was met with good humored applause. The video performance of “I’m F*ing Ben Affleck,” was produced as Kimmel’s comedic one up ante to his girlfriend, comedienne Sara Silverman’s video birthday present, “I’m F*ing Matt Damon.” Silverman’s video joke was a reference to Kimmel’s conclusion of each episode of his late night talk show program, a joke that he had to bump Matt Damon. Damon appeared in the video with Silverman.


Kimmel’s response features Affleck, a long time friend and collaborator of Damon, and an all star cast who perform an musical celebration of Affleck and Kimmel’s “love,” as a satire of the “save the world” songs. The video is performed with just enough of that – we know this wrong, but we don’t really mean it, and after all it is funny – attitude to render it immune to criticism. Like post feminist humor that denigrates women with a wink and a nod, here we have a post gay rights humor that seemingly insulates it from critical inspection.

Yet, it is less the stereotypes that bother me (though they do – but hey, I don’t want to be accused of being uncool), than an interview with Affleck that appeared in Entertainment Weekly soon after its television and Internet debut. While delivered in a tongue and cheek style similar to the video itself, the interview more thoroughly draws a connection between queerness and deviancy. When the interviewer asked Affleck what compensation he received for the “courage you showed,” he responded “They paid me in humiliation.” Having entered the terrain of deviancy, the interview continued, with Affleck alternatively asserting that he “just committed to it,” when asked about the origin of the “bold pairing,” and that he “couldn’t really do it half speed,” when asked about “the tight outfits” and “toe-painting.”

Affleck and Kimmel.

Then interviewer and interviewee conspire for the classic straight male assertion of his normative heterosexuality. Affleck responded to a compliment by the “Kimmel camp” on his “level of commitment,” stating that “And if people thought I really was gay…hey, that could help. People might ascribe good taste to me, and they might think, ‘Maybe Ben Affleck can cook.’ Or, ‘His home might be well cared for. My home is actually well cared for, but that’s entirely attributable to my wife.” Thanks, Mr. Affleck, for telling us that you don’t mind if people think you are gay while at the same time clearly reminding us that you are not. Any celebrity watcher who would even care that Kimmel and Affleck are f*ing would be well aware that Affleck is married to fellow celebrity, Jennifer Garner.

Of course, none of this is to deny the bravery of Danny Noriega, or any gay person who puts themselves so openly in the public sphere. It is rather to question why, after all this “tele-visibility,” braveness matters are all. This is the crux of the matter. Underneath the assertion of Danny’s bravery by American Idol is the lingering sense that Danny is “brave” for parading his “grotesque” deviancy out there for all the world to see. Ben Affleck is “bold” for “going all the way” in his performance of those very stereotypes which are founded on the idea of deviance. All the nods, winks, swaggering, irony, and campy in-joking cannot hide the fact that all this visibility has not challenged the fundamental logic of a heteronormative society: the essential deviance of queerness. While the commercial logics of television continue to render such visibility good business sense, as many have argued, they don’t guarantee good politics. As long as this notion of deviance continues to remain underneath the surface of these images, the logics of heteronormativity will continue, and the promise of visibility will remain as empty of content as these images are full of loathing. And, to borrow a phrase from the world of celebrity culture, that just leaves me feeling f*ed.

Image Credits:

1. Danny Noriega with Rosie O’Donnell

2. Affleck and Kimmel.

Please feel free to comment.

We’ve Gotta Have Faith: TV Lawyers, Prophets & Visions

Steve Classen / Cal State, Los Angeles

Eli Stone and George Michael

Eli Stone and George Michael

The recent Thursday ABC primetime lineup might be dubbed “paranormal night.” If, like me, you’ve become captivated by Lost, you’ve very likely experienced not only the supernatural marvels of “The Island,” but also of Eli Stone—a quirky big city attorney who bears an uncanny resemblance to the prophets of the Old Testament, in name and narrative contexts.

The lawyer-based dramedy Eli Stone made its heavily promoted debut in January 2008, immediately following Lost. The executive producers of the lawyer program brought with them broad experience with other fictional television lawyers, including, in the case of writer/producer Marc Guggenheim, work on David E. Kelly’s The Practice.

The stylistic and narrative similarities between some of Kelly’s lawyer shows and Eli Stone are readily apparent. Viewers have come to expect almost as convention nattily dressed city attorneys with quick wits, troubled personal lives, a wide array of vices, personal flaws and funny eccentricities, extraordinary abilities to deliver dramatic closing arguments in court—and, in the case of Ally McBeal and Stone, attractive professionals who regularly experience bizarre visions unseen and unappreciated by most around them.


Stone is a character self-described at the outset of the series as “having it all—Armani, accessories and ambition.” He is an amoral, successful corporate attorney willing to do what it takes to win for his clients and firm, and is engaged to the gorgeous lawyer-daughter of one of the firm’s managing partners. His personal and career paths seem neatly set. In short, he is a character ripe for conversion.

While making love to his fiancé, Stone experiences his first revelation and begins down the road of change. In this first episode, he cuts short coitus with the women he loves to follow the music that no one else can hear, and begins his spiritual journey with pop idol George Michael, who sings “I Gotta Have Faith.” In each subsequent episode, Eli experiences visions that are jarring, unexpected, and most often, publicly embarrassing, as he reacts physically around others to what only he can see.

Whereas Ally McBeal’s visions of dancing babies and the like seemed like a peek into Ally’s interior life and psyche, and early episodes of Stone suggested that Eli’s visions might be caused by a brain aneurysm, as the Stone series progresses it has become increasingly clear that Eli’s visions come from somewhere external to himself. He does not seek or want visions, and in the series’ first episodes pronounces himself an atheist who has no need or desire for God or things spiritual.

Prophets are often reluctant, and struggle with the “gifts” and responsibilities given, or imposed upon, them (e.g., see Moses and Jonah). Show co-creators Guggenheim and Berlani have remarked that they examined how almost all prophets have “a very similar evolution, wrestling with things like doubt, disbelief, acceptance, regret, etc. We plotted out the first season with this evolution in mind…. These are the ordinary ups and downs of a prophet.” ((Q & A with show co-creators and executive producers Greg Berlanti and Marc Guggenheim published on ABC TV website. April 3, 2008. http://abc.go.com/primetime/elistone.))

Boston Legal

Boston Legal

Alongside shows like Ally McBeal and Boston Legal—programs routinely mocking contemporary legal practices as farce and façade—a program defining its central player as a modern day prophet seems almost like a wistful throwback to attorneys akin to Perry Mason or Lawrence Preston of The Defenders. But the popular defense attorneys of the mid-century consistently emphasized the “rational statesman” approach to resolving legal dilemmas, rather than the inspiration of the mystical or spiritual. ((I elaborate on some of these arguments in my article, Lawyers Not in Love: The Defenders and Sixties TV, Television and New Media, 8(2), 144-68.))

So why introduce the spiritual lawyer-prophet now? Of course, first and foremost because the program producers and distributors believe the character will have significant audience appeal. While discussing their inspiration and creative catalysts for Eli Stone, Guggenheim and Berlani point out that “spirituality really seems to be in the zeitgeist these days,” particularly given the popularity of books like The Secret, and the prominence of Oprah-endorsed new age religious gurus. At least here in L.A., one need not look far to find these emerging cultural leaders, beliefs and faith practices.



But cultural analysts should also recognize these attorney-centered shows serve as popular mediators of larger social anxieties regarding justice, and more precisely, the enduring opposition between law and justice. The relationship of law to justice—the antagonism of law’s formalism to just desires for human compassion and mercy—persists as a problem central to legal liberalism and everyday legal practice in the United States (and elsewhere). Legal scholar Mark Tushnet writes that this tension is “a persistent trope in the discourse on law,” and observes that the regulation “by rules not men” celebrated within legal liberalism has a “rigidity [which] must be tempered from the outside, by mercy and a case-specific particularism associated with justice.” ((Tushnet, M. 1996. Class Actions: One View of Gender and Law in Popular Culture.
In Legal Reelism: Movies as Legal Texts, ed. John Denvir, 244-60. University of Illinois.))

So while contemporary television lawyers may often be quirky and cynical, they are also most often respectful of legal proceduralism and institutions, while powerfully hailed by the demands of justice. This frequently requires that they be representatives of justice rather than law, marked by a moral character, activism and wisdom pertaining to the public sphere that requires exceptional, heroic actors who take action “outside” of law. Who better to name the injustices born of existing legal institutions and practices, and take up formally marginalized demands for social justice than the prophet?

Eli Stone

Eli Stone

With Eli Stone, the prophet becomes yet another lawyer character type who is sensitive to current cultural sensibilities—in this case, renewed interest in human spirituality and the paranormal—alongside the gentlemen statesmen type of an earlier television decade. These lawyers are advocates who take up the cause of justice for the legally marginalized, willing to fight even against their own attorney friends and employers along the way. In such lawyer types we see the reflected hope that agents of mercy and true vision will temper the liberal embrace of a society governed “by rules not men.” Living in times when the irresolvable tensions and incoherencies of contemporary law are readily apparent (and dramatically in evidence in the case of the Bush administration), we are reassured that such tensions might be successfully mediated, if only the right lawyer-prophets might be found. You just gotta have faith.

Image Credits:
1. Eli Stone and George Michael
2. Boston Legal
3. Oprah
4. Eli Stone

Image Credits:

The Thirtieth Anniversary of Roots and the Deferred Dream of Black Drama

Tim Havens / University of Iowa

Roots on DVD

Roots released on DVD

The thirtieth anniversary of the smash ABC miniseries Roots (1977) came and went with little fanfare. TV One reran the miniseries a couple of times with extensive on-channel promotion, and Warner Bros. re-released the miniseries on DVD. As we enter a post-network television era, however, it is worth reassessing the promises and disappointments that came in the wake of Roots in order to understand the prospects for African American television today, especially dramatic series.

Roots was the first major television drama featuring African American actors, themes, and stories. In addition to posting a record-breaking 72-share for its final installment, the miniseries raised the hopes of African American viewers and actors that the long drought of African American televised drama might finally be over. Alas, those hopes have gone largely unfulfilled.

Angelou and Tyson in Roots

Maya Angelou and Cicely Tyson in Roots

Why this persistent lack of African American drama on mainstream television, even after Roots demonstrated the potential popularity? If one listens to industry insiders, African American drama is simply an economic impossibility. White viewers aren’t interested in black drama, and black audiences alone don’t warrant the kind of production investment that television dramas require. I want to question that wisdom, because I believe that it stems from a number of blind spots about race, culture and economics.

The absence of African American drama today owes mainly to perceptions of international buyers’ preferences, because dramas requires good international sales to make back production deficits. Perception of international preferences, in turn, are based on what I want to call “industry lore,” or a set of assumptions about cultural and economic realities that shape industry insiders’ beliefs about what is and is not possible in television.

African American dramas, even those with only one or two prominent black characters, are generally seen as unsaleable abroad. In comments posted here (at the 1 hr., 1 min, 30 second mark), for instance, Susanne Daniels, President of Entertainment for Lifetime Entertainment Services, explains why prime time features so few dramas starring African American women:

It is my understanding…this is…how I’ve been educated…that one of the ways we make money from these shows is selling them internationally, and that the international marketplace will pay less for shows with certain ethnic leads than they will for white leads….

I’ve frequently heard this sentiment from television executives, but never in such a public forum. Obviously, the perception is widespread. Daniels’ comments give us a window into how industry lore works, so before pursuing my counter-example of Roots, I want to talk briefly about industry lore.

Industry lore comprises common sense knowledge about audience preference and the possibilities of the medium that get passed along in many forms, including trade journals articles and informal executive education. Often, industry lore draws on particular examples to illustrate more general truths. The fact that predominantly Muslim Egyptian audiences rejected Gunsmoke because Matt Dillon’s badge resembled a Star of David, for instance, provides a general lesson about the dangers of cultural ignorance when selling programs internationally. These features of educative storytelling are what lead me to use the term “lore,” which the Cambridge Advanced Learner’s Dictionary defines as “traditional knowledge and stories about a subject,” rather than a more general term like discourse.

Industry lore facilitates the smooth operation of the commercial television industries. Television markets are purely imaginary. Conceptualizing which audiences might be interested in which programs is an act of imagination, even when it is backed up by research, which is seldom the case in international television trade. Industry lore is the product of those collective imaginings. Finally, industry lore is a form of material discourse, which derives from and acts upon other material processes of the television business, including political-economic forces, industry organization, and day-to-day business practices.

In the case of Roots, industry lore at first worked against the worldwide distribution of the miniseries; then, after it became “the world’s most-watched television drama,” ((Warner Bros. promotional kit for Roots. Undated. David L. Wolper Center archives no. 283-006.)) industry lore stepped in to downplay the importance of the African American elements in the show’s global appeal. Letters from Roots producer David Wolper to the international distribution units of United Artists and Twentieth Century-Fox, as well as acquisitions executives at the Canadian Broadcasting Corporation, Canadian distributor Simcom, the BBC, and Australian Channel 7 show that Wolper worked hard to find outlets abroad for the miniseries, but generally failed. While American distributors uniformly praised the miniseries, they agreed that “the primary market for the project would be the U.S. and Canada” ((Letter from Danton Rissner, Vice President in Charge of East Coast and European Production for United Artists Corporation to David L. Wolper, March 1976. David L. Wolper Center archives no. 282-016.)) and they did “not believe that much [could] be done with it overseas.” ((Letter from David Raphel, President, Twentieth Century-Fox International Corporation to David Wolper, March 1, 1976. David L. Wolper Center archives no.282-016))

Roots BBC

Thirtieth Anniversary on BBC

Obviously, distributors believed that viewers abroad would have no cultural frame of reference to understand African American experiences of slavery. Nevertheless, the miniseries sold in 49 territories in its first two years of syndication, and it earned as much abroad as it did in domestic syndication. Industry insiders took two lessons away from Roots’ surprise global appeal: that buyers abroad, especially hard-to-crack European public broadcasters, were interested in miniseries because they fit the scheduling demands of non-commercial channels; second, that historical miniseries rooted in “universal themes” could appeal to foreign viewers.

Roots inaugurated a cycle, in which African American television programs break new ground in international markets, only to pave the way for white series to follow. Roots paved the way for predominantly white historical miniseries. The Cosby Show paved the way for predominantly white middle-class sitcom sales abroad. And The Fresh Prince of Bel-Air paved the way for predominantly white youth programs (though the story here is more complex.)

Why does this pattern recur? Obviously, the disproportionate wealth of European buyers helps explain why those markets drive domestic production decisions more than others. In Roots‘ time, international sales were central to funding the elaborate miniseries genre, much as is the case with dramatic series today. But cultural assumptions, in the form of industry lore, play a crucial role as well. The fragmentary evidence about the reception of Roots abroad suggests that, for some viewers, the story of black suffering was central to their interest in the program, even if that story was melo-dramatized and advocated patient perseverance. The prevalent industry lore, however, erased the specifics of African American history as an explanation of Roots’ success, zeroing in instead on those elements such as historical themes that could more easily be applied to white stories, fitting industry perceptions of their primary audience at home and abroad. Of course, the idea that shared racial identities or historical settings can overcome national cultural differences is rooted in some very specific assumptions about cultural identity and difference.

Hungarian book cover

Hungarian Roots book cover

The irony for African American programs is that, despite their path-breaking sales records, they frequently get pegged as too pedestrian for foreign viewers. This is not so much an example of overt racism on the part of industry insiders as it is a demonstration of how immersed most of them are in white cultural assumptions. They see white culture as universal; in fact, they can’t really see white culture at all, but only non-white culture. For them, the absence of non-white cultural values and allusions is the presence of universal themes.

The economics of the industry have changed dramatically since the days of Roots, with new transnational funding arrangements, new crops of buyers targeting sub-national and transnational audience niches, and an explosion of format sales. Industry lore has likewise become more contested and multi-vocal. But industry lore about African American programming has remained largely unchanged, and until it does, the prospects for African American drama remain dim, as does recognition of the central role that black culture has played in worldwide flows of television culture.

I would like to thank the David L. Wolper Center at the University of Southern California for access to their records, and especially Sona Basmadjian for her invaluable assistance.

Image Credits:

1. Roots DVD

2. Maya Angelou and Cicely Tyson

3. Roots BBC

4. Roots Hungarian book cover

Please feel free to comment.

Welcome to Flow Favorites

flow favorites

Welcome to “Flow Favorites” – a collection of current and past Coordinating Editors favorite Flow columns. Since our inaugural issue in September 2004, Flow has published over ninety columnists and over 500 columns.

For each of us involved in this issue, choosing one column out of this incredible body of work was difficult, to say the least. We were each faced with the following questions: do we chose columns that sparked the strongest comments or debates among our readers? Should we choose the best written columns? The most significant? Do we choose columns based on timeliness? Accessibility? Novelty?

In the end, we each chose columns for very different reasons. As a result, the selection offered in this special issue represents a broad spectrum of the scholarship available on Flow. Today, we offer these past columns as a way to look back and reflect on our current body of work as we look toward the future and to the next 500 columns.

In the meantime, we’d like to thank the past and current columnists (and readers) for your continued support. We couldn’t do it without you.

Current Co-Coordinating Editors:

Alexis Carreiro
Peter Alilunas

Image Credits:

Graphic by Peter Alilunas.

Please feel free to comment.