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A Modest Proposal: CRACK DOWN on Criticism!

Start with the industries' the-sky-is-falling claims [href="http://www.riaa.com/issues/piracy/default.asp">1, href="http://web.archive.org/web/20050217040618/http://www.mpaa.org/anti-piracy/">2], subtract any
alternative claims, no matter how compelling [href="http://www.unc.edu/%7Ecigar/papers/FileSharing_March2004.pdf">3],
add in the rush to legislate [href="http://www.publicknowledge.org/issues/hr2391">4], and I
wonder how long before we might see logic like the following:

Elektra, 20th Century Fox,
budget$65 million [href="http://www.the-numbers.com/movies/2005/ELEKT.php">1]
opening weekend take$13 million [href="http://www.the-numbers.com/movies/2005/ELEKT.php">2]
second weekend take$4 million [href="http://www.the-numbers.com/movies/2005/ELEKT.php">3]
total take$24 million [href="http://www.the-numbers.com/movies/2005/ELEKT.php">4]
average critic rating3.5/10 [5]
Conclusion:Movie critics cost 20th Century Fox 69% income loss in one
week, $41 million overall

leading to:

name="title">Critical Review Assault Criminalization KluDge,
OWnership Normalization (CRACK DOWN) Act

size="+1">An Act To amend Section 107 of Title 17,
United States Code, by removing the word "criticism".

name="purpose">Purpose and Summary
The purpose of the CRACK DOWN Act is to return to copyright holders a
more complete control of their work and how it may be used, and to
protect them from harms caused by non-authorized uses of their work
which they are currently unable to remedy. By removing the word
"criticism" from Section 107 (US Code Title 17), critical assault will
be no longer be falsely protected as a "fair" use, and will be subject
to the full scope of statutory and criminal damages as provided by
Title 17 Chapter 5 and Section 2319 of Title 18.

name="background">Background and Need for

Irony, cynicism -- the generally critical disposition -- have spread in
epidemic proportions over the last years, arguably to the detriment of
society. Negativity as a source of entertainment is flourishing as
nevertofore. Caught up in this assault of adversity, mischief, and
anarchy, precepts originally promulgated for the advancement and
betterment of society have instead become misused, abused, and
misapplied in ways never intended. The use of copyrighted works in, and
the creation of derivative works based upon the copyrighted work as,
derogatory, defaming, disparaging, detrimental, derisive, deprecating
or otherwise damaging criticism of a copyrighted work is, under the
current letter of the law, protected as "fair use". Obviously there is
nothing "fair" in copyright owners having to endure an assault upon
their copyrighted work using misappropriated elements from the same
work, or having the work vandalized in the creation of an unauthorized
derivative work, such as a satire or parody, which only damages the

assault-as-criticism costs affected copyright holders billions of
dollars each year. The movie industry alone in 2004 suffered actual
domestic losses of at least $1.9 billion due to this assault, to say
nothing of the untold billions in unrealized potential income. An
individual work is liable to lose an estimated average of $14 million
in lost weekend income per week from review assault. The effect of this
volume of critical assault is substantial: lost U.S. jobs,
corresponding lost wages, lower tax revenue, and higher prices for
honorable consumers of copyrighted works.

That negative
reviews hurt the movie industry is undisputed. How much it hurts the
industry can be seen in an increasingly desperate move movie studios
have been forced to resort to, the "wide-opening weekend", in which the
financial detriments caused by critical assault can be somewhat
mitigated by having the movie reach as many end consumers as possible
before becoming besmirched by the attack of negative reviews. By
opening on as many screens as possible before the full force of
negative reviews can make itself felt, the natural earning capability
of a work can be explored more fully for a time, and movie studios can
recoup more of their investment on a particular work than would
otherwise be possible in the face of the full wrath of the critical
review assault. This is naturally a costly tactic, adding around $20 to
$25 million in opening marketing costs to any given work. Once the full
assault of criticism is felt, income for a given work drastically drops
on the order of 60% or more where this tactic is employed. Among the
top works in 2004 employing this tactic, some $213 million in losses
were suffered in second weekend revenue drop-off due to critical review

The proposed
amendment would return accountability to the system, allowing damaged
copyright holders to go after abusive critics who have misused the
copyright holder's copyrighted material and caused damages, and indeed
allow copyright holders to forestall damages in the first place by
shutting down unsanctioned negative criticism which rely on infringing
upon the copyrighted work itself. Such infringement includes, but is
not limited to: plot summaries, character descriptions, quoted dialog,
as well as the use of any clips, imagery, or trademarks related to the




Industry Losses, $1.9 billion
This figure was arrived at using
estimated budget data and total US gross data for 2004 movies from href="http://www.the-numbers.com/movies/index2004.html">the-numbers.com,
and Tomatometer ratings from rottentomatoes.com
(the Tomatometer rating is the number of good reviews divided by the
total number of reviews of Approved Tomatometer Critics (href="http://www.rottentomatoes.com/pages/critics#film_critic">standards);
anything below 60% is considered "rotten"). Using only movies for which
budgets were available, Tomatometer ratings were matched to movies, and
profit/loss was calculated using the method described elsewhere on the href="http://www.the-numbers.com/movies/records/budgets.html">the-numbers.com
whereby it is assumed that 50% of the box office receipts are returned
to the studio, and ancillary earnings are not included. The figure of
$1.9 billion (more precisely $1,883,939,667.00) was arrived at by
adding up the domestic profit/loss of all movies which were "rotten",
which is to say had a Tomatometer rating of less than 60%. Data can be
reviewed as an href="http://offtheshelf.nowis.com/gallery/index.cfm?WhichSet=8&picture=295000">Excel
spread sheet, or as href="http://offtheshelf.nowis.com/gallery/index.cfm?WhichSet=8&picture=296000">csv/text.

Industry Losses, $14 million average weekend, $213 million weekend
These figures were arrived at using data from href="http://www.boxofficemojo.com/alltime/weekends/drops.htm">boxofficemojo.com
and rottentomatoes.com.
From a list of the 200 biggest weekend drops in wide-release movies,
1982-present, year-2004-movies were selected and matched with their
Tomatometer ratings. The $213 million figure for top works (more
precisely $212,705,638.00) was arrived at by taking the total
difference in box office receipts from the first weekend to the second
weekend of the top 15 biggest drop 2004 movies with a "rotten" rating.
The $14 million figure was arrived at by dividing the previous figure
by 15. Data can be reviewed as an href="http://offtheshelf.nowis.com/gallery/index.cfm?WhichSet=8&picture=297000">Excel
spread sheet, or as href="http://offtheshelf.nowis.com/gallery/index.cfm?WhichSet=8&picture=298000">csv/text.

Industry Costs, $20 to $25 million opening marketing costs
information is from href="http://www.pbs.org/wgbh/pages/frontline/shows/hollywood/picture/openbig.html">interviews
from the Frontline story "The Monster that Ate Hollywood".

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