January 26, 2005

It doesn't matter if the cause is just.

So I'm reading one of my favorite blogs, and this pops up.

Oh boy.

This touches me much harder than usual, and in conflicting directions. On the one hand, I agree wholeheartedly that the copyright system in the United States is fucked up and in dire need of repair. I also agree that Eyes on the Prize is one of the sterling examples of how badly the system has failed us.

On the other hand, I have some skin in this game, and also some information that many people might not. Henry Hampton was my uncle; I spoke at his memorial service. I loved him dearly, and miss him daily. As a young 'un, I remember doing 'makework' gaffer tasks on some of the interviews for Eyes I.

This protest might be a good thing, as far as copyright goes. However, as far as Eyes goes, it's really not. Really, really, really not. It's a bad thing in many senses of the word. I know that one of the first things I'm going to have to convince everyone of is that I'm not saying this out of greed, so let me be clear about how I'm involved. My mother and her sister inherited Blackside, Inc (the film company my uncle Henry started, which made Eyes) and also inherited the rights to the Eyes films. My family receives no royalties on any sale of any Eyes media, as far as I'm aware; all rights to duplicate and sell Eyes have expired (which is one reason it is not available) and when it was available, PBS received most of the proceeds. At the time, Blackside received whatever royalties were forthcoming, and Henry was alive and owned Blackside, so the question of my motives would be moot.

Here's why it's a bad thing that Downhill Battle is doing and proposing.

I am heartily in favor of everybody showing their copies of Eyes to as many people as they can. If you have a copy of Eyes that you bought or inherited, great; show it. But please, please, please don't don't encourage others to duplicate it and distribute it, and please (above all, as some motherless losers are doing on eBay) don't sell it.

There are negotiations ongoing (on and off, but ongoing) to re-issue Eyes on the Prize in DVD format, ideally with additional materials for teaching. Funds are being solicited for this effort, and sponsors pitched. This would allow the production of additional materials and allow Eyes to be distributed to the public and libraries and schools once more, playable on modern equipment and archived on more durable media. Every time the 'COPY EYES!' website gets seen by one of the rights-holders we have to negotiate with, however, the chances of us ever getting this done diminishes. This brings me to my second point.

Eyes on the Prize is not about the copyright movement. It is not about intellectual property. It is about the Civil Rights movement, and the Black experience in America. Using it in this way, no matter how noble the intention, will serve to brand it fairly indelibly in the minds of the policymakers as the 'spearhead of the p2p movement' and the 'emblem of the anti-copyright movement.' While I'm not saying that's necessarily a bad thing, I am saying that that will absolutely detract from the teachings and message that Eyes was, in fact, created to get across - teachings of history and messages of racial tolerance and diversity - by irretrievably muddling in a contemporary, hot-button (and entirely unrelated to the original topic) fight.

Whatever the motives, the countercopyright crew are essentially hijacking someone else's life's work and appropriating its power and recognition for their own purposes. In the process, they are potentially diminishing and damaging its own effectiveness. It's not their place to make the decision to throw the weight of Eyes behind this fight.

Finally, I would point something out. They invoke Henry Hampton's name and legacy on their page, where they advocate downloading and illegally distributing his works. Henry Hampton may have made documentaries, but that doesn't mean he worked for free. Blackside, Inc. was always a for-profit corporation, and Henry Hampton took home what profits his films were able to generate. So trying to invoke his name while you encourage everyone to trample on the rights granted his works strikes me as extremely hypocritical.


It has been pointed out to me that the use of Eyes on the Prize by Downhill Battle could be looked upon as akin to the use of "This land is our land" by JibJab during the recent campaign. I respectfully disagree, and here's why. JibJab did, indeed, take someone else's existing piece of work and make it available for download without asking consent in order to make a point about a modern debate. However, JibJab used that piece of work as the basis for an original satire, and the piece of work itself (the Woody Guthrie song) was relevant to the point at hand (as in all good satire). On top of it, they layered an original contribution (a Flash piece) which was linked to the music.

In this case, Downhill Battle has done no such thing. The have taken an existing piece of work (Eyes on the Prize) and are offering it for download, and encouraging others to download, duplicate and distribute it, in violation of the law. No original work has been added, and - more important - nothing about Eyes on the Prize is relevant to the current debate save its status as an out-of-print film! As such, any out of print film could be substituted for it, and Downhill Battle's page would make just as much sense. However, it wouldn't be as effective. Why? Because Eyes on the Prize has recently been profiled in Wired Magazine and Salon.com, talking about this very issue. It already has name association with this problem. Plus, it is (or was) a relatively well-known documentary film, one of the highest rated films on PBS when it was aired. Libraries and schools are fond of it. In short, there is a ready-made sympathetic audience.

None of this, however, matters to the point - which is that what Downhill Battle really cares about is not the work itself, but the action. The action of downloading, distributing, and showing it. Defying the currently broken copyright law. Thus, it is qualitatively different from the use of "This Land is Our Land" by JibJab - who utilized the content of that famous song to make a political point that resonated.

If, in fact, what they really cared about was 'preserving Eyes on the Prize for posterity' as they have claimed - I find it extremely troubling that no attempt was made to contact any of the current rights holders (my family) to simply ask us what efforts, if any, were being made to ensure the future availability of this work to the public. We would have been happy to detail (as much as we were able) the state of ongoing research, fundraising and negotiations, all with the aim of clearing, producing and distributing a DVD release of Eyes on the Prize. This is why I have trouble believing arguments that what they're doing is really 'for the good of preserving Eyes.' Even if they don't agree with my arguments about how this effort damages ongoing attempts to reissue it, they never attempted to determine what (legal) efforts were underway to preserve and release the films.

Addendum Mk. II:

Oh yes. That little dig about eBay...for anyone who is desperate to acquire Eyes on the Prize and is offered a set for sale, please note that it was NEVER issued on DVD. Anyone trying to sell you Eyes on the Prize I or II on DVD is selling you a homemade (illegal) copy. There was a Laserdisc version of Eyes I (and II, I believe) available for classrooms, and a lucky few folks have those, so Laserdiscs are likely real - but no DVDs, nope, never. If you see them on eBay, report 'em as frauds. Not for my sake (as I said before, I don't see any money from any of this) but because we don't want some poor person taken for their money because some unscrupulous loser is sitting in a basement turning out DVD burner copies of the thing. Yes, I've seen it happen, and yes, I've called eBay down on them. I've felt unclean for doing it, but also felt that it had to be done. Posted by jbz at January 26, 2005 3:43 PM | TrackBack


Eric - I don't actually know if there are still copies of 'I'll Make Me a World' available; I believe that Blackside relied on PBS for reproduction and distribution of home video copies. However, I will undertake to check and to let you know what I find out. Thank you for asking, and I'm sorry you're having trouble finding it. I sympathize; I myself do not have copies of all of Blackside's films, as I missed ordered several from PBS.

Michael McG: That may be the case. It also is the case that Downhill Battle was requested by Blackside's legal representatives to remove the files around the time the third episode .torrent file was made available on their site. The files were removed from their site, although they were in fact placed up again on an anonymous hosting domain registered in France, and that fact publicized by Mr. Doctorow on BoingBoing.net immediately after the takedown - a cheerful violation of the spirit of the law, as they had all along acknowledged was their purpose. Given that, it is difficult to believe there was a 'change of heart,' although if I could be pointed to statements to that effect from their representatives that were not made to directly satisfy legal demands, I would be happy to be proven wrong.

Posted by: J.B. Zimmerman at April 24, 2005 11:17 PM

In defense of Downhill Battle, only the first three episodes were released in MP4 form. They hadn't finished digitizing the rest when they saw the error of their ways and stopped.

Posted by: Michael McG at April 24, 2005 12:03 PM


Posted by: ERIC at April 22, 2005 6:14 PM

Thanks for your excellent entry.

I originally heard about the DB "project" via Metafilter.com and was rather annoyed with comments left in the thread there. I completely agree with you that many people are only interested in copyright reform because it benefits their wallet.

It is unfortunate, but it was of no surprise to me that DB did not bother to contact the rights owners of EotP. Though I'm a fan of the series, I'm glad Blackside managed to get the Downhill Battle effort stopped. It is sad that so many laypersons these days (as is clear in the MeFi and boingboing posts) seem to think they have a firm grasp of copyright law even as they try and screw over the "little guy" for their own benefit--and in the name of something being just.

Posted by: dobbs at January 29, 2005 12:43 AM


The only problem with your whole diatribe against the length of copyright terms in this context is that Eyes was initially released a scant 18 years ago. Sorry that you were offended by my comment. You should not have been. I said "those promoting the [Eyes] protest", not "those advocating sensible copyright reform", were the leaches and have yet to demonstrate otherwise.

Also, I guess the comments section here is moderated. I meant to edit the last paragraph ("bet dollars to donuts") out. I stand by it, but on reflection, there are better circumstances than this one to mock Cory Doctorow for his inanity.

Posted by: Brad Hutchings at January 27, 2005 2:54 AM


I must respectfully disagree. As a creative professional -- that is, a person whose living derives solely from remuneration for work under copyright protection -- I emphatically support the need for copyright law. What I and many of my peers decry is its current implementation. My living, and the livelihoods of many of my friends would be rather severely curtailed were our trades not afforded the protections of copyright law. We'd be hurt nary a whit by more reasonable copyright policy, though.

There is no legitimate social good, however, in copyright terms of the lengths current statute dictates. Even the oft-cited Berne Convention requires a lower standard than US Copyright code. The only societal purpose, if you can call it that, served by copyright terms as long as we have is the attempt to forcibly remove material from the public eye. Witness the recent attempt by Diebold, Inc. to have dissemination of internal memoranda describing flaws in its electronic voting machines prosecuted as infringement. Witness a recent trend among lawyers issuing Cease and Desist letters claiming them as copyrighted, in attempt to prevent the recipients of those letters putting the claim to public scrutiny. Witness the simple fact that the lack of licensing could ultimately make this tremendously valuable film disappear forever.

To be sure, squeezing a scant few dollars' more profit out of a protected work is not a societal benefit. It's perhaps a benefit for the copyright owner, but on the whole, the largest copyright portfolios are institutional. Having seen projected curves describing the diminishing returns over the duration of a copyright term, I have no small trouble reconciling the padding of a balance sheet from the asymptotically approaching zero few fractions of a percent extended copyrights yield with a social good, of any form.

It is, indeed, unfortunate that Eyes is being used as a crux in this fight. And, while avoiding any semblance of suggesting that the current debate over copyrights in any way impacts peoples' lives as directly and profoundly as did the struggle for Civil Rights, this, too, is a fight about Civil Rights. It is about the Right of Free People to engage in civil discourse and exchange information without being beholden to some corporate interest for the privilege of doing so. Make no mistake, if the various industry associations advocating ever-longer copyright terms could find a means to levy use fees on the very mention of a copyrighted work, they would. This is no mere hyperbole, either; as they represent publically traded corporations, whose sole legal mandate is maximizing shareholder value (ideally, though actually less often than that, within the bounds of other applicable law), if there were a legal means to do what I describe, they not only would do it, they would be bound to do it.

Your claim, however, that the copyright-reformers' agenda is merely to eliminate the obstacles preventing their access to any and all media, free of cost is specious, hyperbolous, false on its face and, frankly, offensive. Yes, there are people with such motivations and goals; they may even be the majority. But to equate the leeches' motives with those of the people who merely call for sensible copyright policy is disingenuous, and stands in the way of ever having a legitimate debate on the subject. In your claim that we offer naught but "baseless ad hominem" and stale, recycled answers with the tongue of the pirate who lives to fill disk after disk with ill-gained media, you speak with the same tongue Jack Valenti used in equating the VCR with the Boston Strangler.

So long as those are the only tongues heard, the world improves for no-one.

Posted by: Rosser Schwarz at January 26, 2005 9:02 PM

Hi jbz,

Good talking with you on the phone today. I really think though that calling Eyes on the Screen the "'COPY EYES!' website" is a mischaracterization or at least a misreading.

We decided on the name "Eyes on the Screen" because we wanted it to be about public screenings, that is, about people watching "Eyes on the Prize" where they live, with their friends. Even the invitation to send free DVDs of "Eyes" to schools is geared towards the same end: letting students see the movie. And we'd be happy to change the page such that we aren't asking people to give DVDs to schools, if that seems too extreme to you and you'd like us to do that.

Though there's an amazing free curriculum for teachers--and that's not much use if schools' VHS tapes have worn out or gone missing over the years.

As far as your sense that we're using Eyes to carry water for the copyright debate goes, it's quite the opposite.

The real problem here is that nobody can sell Eyes on the Prize, the majority of people can't watch Eyes on the Prize, and nobody has heard much about it for most of the past ten years. Copyright is the cause of that, and that's the only reason why copyright has anything to do with this.

A lot of people who care about civil rights and don't care the slightest bit about copyright issues are really frustrated that Eyes on the Prize has been buried for so long. And that's what motivated us to try to organize these screenings.

Anyway, thanks so much for being in touch today,

Tiffiniy Cheng
Downhill Battle

Posted by: Tiffiniy Cheng at January 26, 2005 8:21 PM

Hi jbz,

I found your blog entry linked from Copyfight. I think the most disappointing thing about the Eyes controversy is that those promoting the protest never seem to have bothered to ask the rights holders. Truly, these people have no regard whatsoever for copyrights other than as a legal obstacle to them getting what they want in what format they want it for free. They have yet to provide any evidence of wanting anything else. Just ask, and you get the same answers intertwined with baseless ad hominems against "evil" rights holders.

You point out that copyrights don't just fuel past creator's demands for residuals, but also enable future production along the lines of the original works. Commercial art is not just the products that make it to the market, but the process that creates more.

Anyway, I will bet dollars to donuts right here that neither BoingBoing nor the Copyfight blog will examine the side of the argument you present outside of user submitted comments. BoingBoing contributor Cory Doctorow had yet to demonstrate any semblance of reflectiveness in advocating stealing others' rights. I doubt he will start now.

Posted by: Brad Hutchings at January 26, 2005 6:29 PM
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