p2pnet - rss feed: Ex-movie exec slams iTunes/Pepsi ad
“Hi, I’m one of the kids who was prosecuted for downloading music free off of the Internet,” says a teenager in an ad slated to be aired during the Super Bowl tomorrow.
“And I’m here to announce in front of 100 million people that we’re still going to download music free off the Internet.”
She’s one of 16 naive US teenagers ‘persuaded’ to appear in the spot which was to have reprised Apple’s triumph of 1984 when, in the first Super Bowl ‘event’ ad, it launched the Mac.
However, the 2004 production will be remembered with shame.
The 16 teenagers were identified by the RIAA as alleged ‘copyright violators’ - ‘alleged’ because they never appeared before a judge. They, or their parents, settled out of court rather than risk much larger financial penalties had they gone head-to-head with the RIAA’s heavyweight legal team, and lost.
The ad has Pepsi ‘giving’ away 100 million iTunes songs as a promotion. Waving bottles of soda, the kids let everyone know that’s the kind of ‘legitimate’ music they’ll be downloading in the future.
Annie Leith, 14, whose parents gave the RIAA (Recording Industry Association of America) $3,000 to avoid a civil lawsuit, is featured and she says she’ll use some of her undisclosed ad fee to help pay for that.
“Falsely attributing criminal conduct”
“It’s all in good spirit,” says Dave Burwick, chief marketer, Pepsi, North America.
Josh Wattles, however, doesn’t think that adequately describes the commericial. In fact, “Falsely attributing criminal conduct to someone is a slam-dunk libel in just about every state,” he says.
“There’s no calculus of relative harm to justify this kind of abusive, untruthful and cynical behavior towards minors no matter how complicit their misguided parents may have been in this deception.”
He’s the former acting general counsel of Paramount Pictures, a key architect of the MPAA’s (Motion Picture Association of America) anti-piracy programs in the transition to videocassette distribution, and the former senior executive in charge of Viacom’s music subsidiaries, The Famous Music Publishing Companies.
It started last year when Big Music instructed the RIAA, its principal enforcer, to sue any file swapper it could identify for copyright violations. Its lawyers used ‘instant subpoenas’ obtained under the Digital Millennium Copyright Act (DMCA) to pressure ISPs into handing over subscriber names and addresses - until the Verizon decision put a stop to it.
However, before being ordered to use due process like everyone else, the RIAA had been able to track down and identify a number of p2p file swappers, mostly teenagers and students, whom they threatened with civil, not criminal, court actions. Unless they settled.
The 16 teenaged Pepsi stars were among those swept up in the RIAA’s ‘investigations’.
By the sheer volume of ink the RIAA has been able to generate in the media, it’s succeeded in making people believe anyone who downloads music, shares files, swaps music, or whatever you want to call it, is a criminal and thief.
That’s not true.
But the RIAA’s relentless, mind-numbing assertions have been sufficient to paint the picture and hence, the Pepsi/iTunes campaign could be catchily entitled “I Fought the Law”.
And, “I was one of the kids prosecuted for downloading music,” says a teenager. She was not, though, ‘prosecuted’ for anything. She’d never been in a court. She was, rather, mouthing words from a script contrived by BBDO and approved by Pepsi and Apple.
However, to make the theme stand up, the message that these kids were ex-criminals who’d been rightfully ‘prosecuted’ had to be driven home hard and therefore, Busted, Charged, Incriminated, and Accused appears over their images, and the carefully arranged lighting and their sullen looks purposefully suggest a gritty, urban, isolated feel - the kind of thing associated on TV with ‘lawbreakers’ and criminality.”
Questions
A number of questions go begging, however.
- Did the kids appearing in the commercials know exactly what the script would have them saying - specifically, that the word ‘prosecuted’ would be used? And did they know there’d be suggestive overlays superimposed while their images flashed up?
- Did the ‘actors’ or their parents or their guardians or lawyers see and OK the ads - and the various elements such as the overlays - in writing after they’d been edited and approved for airing by Pepsi and Apple?
- Were they given the option of backing out if they didn’t like the look of the final cut, if they indeed saw it?
- Was the agreement between BBDO and the teenagers carefully crafted and honestly written to protect them?
- Or was it a standard ‘name and likeness for a fee’ boilerplate or worse, a cold and cynical contract made by a calculating team of highly paid lawyers and account executives with 16 naive and easily impressed youngsters to insulate Pepsi, iTunes and CBS from possible libel suits filed by the teenagers after the ad was cut?
“I still can’t get over the fact that these fresh faced teenagers are being attacked by companies just to preserve a business model in need of freshening up itself,” says Wattles. “I don’t want my kids treated that way by business and I don’t want other people’s kids treated that way.”
And on the choice of language, “Prosecutions are usually understood to be actions by the state to enforce criminal laws,” he says. “Prosecutions aren’t generally understood to mean civil lawsuits. The word ’sued’ would be appropriate and accurate in this context.
“The ad falsely pumps up the music industry’s enforcement effort, and its suggestive criminalization of the kids’ behavior building up to the tag line ‘we’re still gonna download music for free off the Internet - and there’s not a thing anyone can do about it,’ reinforces the ad’s presumption that their behavior had been criminal.”
But, “What’s the problem?” - asks a nameless, faceless RIAA spokesperson. “We’re only involved as good corporate citizens. We gave Pepsi and Apple and BBDO the kids’ names to help them. The kids, that is. This is our way of working with wholesome American institutions to save the Children of America from having us prosecute them for stealing music. What can be wrong with that?
“And Gosh! Pepsi is giving the music away anyhow. But this time, the kids won’t end up in a court for downloading!”
‘Giving’ is probably the wrong word, though.
Actually, Pepsi is marketing the tunes on behalf of the RIAA’s owners, the major record labels, who sold the songs to Apple in the first place. People get the songs by buying Pepsi and looking under the bottle tops, some of which have a code which can be redeemed to ‘buy’ a song from iTunes.
Rich Menta, editor of MP3newswire, says here, “The RIAA will earn $0.75 from Pepsi for each of the 100 million downloads.” And that’s $75 million, “in pure profit for the record industry, which is why RIAA president Mitch Bainwol is happy to go along with the joke,” suggests Menta.
“Apple wins, of course, because now they have more than quadrupled their total sales of downloads from 30 million to 130 million tunes - all using the AAC format that only the iPod will play, thus pushing iPod sales.”
Is ‘get sued by the RIAA and star in a TV commercial’ the message? - Menta asks.
“It’s bad enough that the RIAA targeted kids for their lawsuits but, it’s worse to criminalize their behavior on national television just for the sake of a provocation, or to sell soft drinks and iTunes downloads,” Wattles told p2pnet.
Moreover, he goes on, “Congress, in making the copyright laws, never, to my knowledge, considered the circumstance that kids would be engaged in mass infringements, however technical. Certainly, imposing extraordinarily high statutory civil damages on an ill-behaved and/or ill-informed teenager seems out of step with the result a legislature would have openly picked.
“And there’s a big legal question mark over whether or not they can be tried as juveniles for criminal copyright infringement.”
Wattles - who was at Berkeley in 1969 - points out that he’s speaking as an individual concerned over the excessive and intrusive behavior of an industry to which he’s contributed, and in which he still has a stake.
“I don’t want to see it [the entertainment industry] behave in this way and I believe I’m speaking out responsibly to help it correct itself,” he says.
“No matter how old they are and even if their parents or a court signed off for them, they could possibly sustain an action for libel if they weren’t completely aware of what this ad was going to look like and suggest about them.
“These kids weren’t criminally prosecuted, but they’ll get to live with this characterization for the rest of their lives - even after they grow up and move away from their childish false bravura performances.”
Jon Newton
(Revised January 31 - Updated here)
January 31st, 2004 at 3:18 am
Hi, Jon Newton did a great job putting this article together and I agree with Josh Wattles stance it is disgraceful.
January 31st, 2004 at 7:36 am
John Wattles is an ASSHOLE, that is the final answer…get a life DUDE..go over to Dell, or are they paying you….oh I am sorry get out of bed with the PC Weenies.
January 31st, 2004 at 7:16 pm
When I watched this ad. the first thing i thought was ‘hah! swivel on that RIAA!’, it never occured to me in the slightest that this was something to be ashamed of.
I really don’t understand why “the 2004 production will be remembered with shame” attitude, when everyone who sees this will think of how bad the RIAA is for suing these kids.
No one in their right mind would think the kids were being exploited. In fact i would have loved to have been in the ad. if i was a teenager.
Aparently you’re attempting to spread random FUD and you just love the ‘compensation culture’ which is so prevailent in the US today “possible libel suits filed by the teenagers after the ad was cut” why would they want to sue!?
in conclusion you are probably jealous you weren’t featured in the ad, and have decided to publicise your bitterness in an attempt to spoil the ad. for normal people.
February 1st, 2004 at 7:10 am
The music is not always pumped directly back into the RIAA. Do a little research. There’s non-RIAA labels on iTunes that can be purchased with the song codes Pepsi is giving away.
DownhillBattle has announced the Tune Recycler aimed at people who win a code, but don’t want to bother getting a song out of it. They’ll go and buy a non-RIAA song from iTunes with it to furthor help artists.
Rich Menta is an idiot for not remembering this fact, and Jon Newton should check his facts. If you look at the top selling songs on iTunes, sure there’s lots of RIAA label songs there, but there’s a lot more non-RIAA label songs up there too.
February 2nd, 2004 at 4:39 am
absolutely frikkin on target. Obnoxious commercial. Apple sux. pepsi sux tooo.
February 2nd, 2004 at 9:27 am
Then maybe you should read the article again?
Simply, not everyone who watches the ad is going to think “how bad the RIAA is for suing these kids”. Many of them may think the kids are criminals who have been caught by the police and punished by a court.
Some of these people may be potential future employers, or employees, of these kids. Or their neighour, some one on their bus or train route, or a jury member. They could always remember that these kids are convicted criminals. And act on that memory, denying them a job, a seat on a bus, or a fair trial.
Think about it. Would you really want people you meet to think you’re a convicted thief? For the rest of your life?
The ad is good, it’s been made to be liked, to appeal to certain people, the target demographic. You appear to be in that demographic, so the marketing is working. That’s why sums of $75,000,000 are involved here, and that’s just for the music, not the packaging, the design and the marketing.
Think about all that money and who is involved and what is really going on here. The Fear, Uncertainty and Doubt (FUD) is not being generated by the commentors on this page. It’s being generated by those who can profit by it.
DethLok
February 2nd, 2004 at 8:20 pm
$75 million in pure profit for the RIAA.
This is not true. each song is split in such a way that Apple gets 33 cents and the RIAA ( who represents the major record labels) recieves the remaining 66 cents. Then of this amount the appropriate amounts are funnelled to the respective record lables (minus whatever fees the RIAA imposes). The Record labels, after imposing whatever fee they do, then gives the artist whatever cut they have negotiated. If the RIAA was getting $66 million out of the deal and the record companies saw nothing, then the RIAA would cease to exist.
I understand that artists see little of the 66 cents, but lets not use that fact to mudy up the real cash flow.
February 3rd, 2004 at 8:23 pm
Rich Menta, as an editor, should know that any Macintosh or Windows computer with iTunes can play the (protected) AAC format, not only the iPod.
To say that “the AAC format that only the iPod will play” is misleading.
February 4th, 2004 at 12:47 am
HAHAHAHHAAHHAHHAHAHHAHAHHA what you been blowing up your nose?
February 4th, 2004 at 12:59 am
Come on, let’s be serious ! These kids are considered heroes by the majority of their peers. The only adults who really count in their lives, right now, are their parents and teachers, who very well know what to think about them without help from the ad in which they “starred”. As for the rest of their lives, I fail to see how (unless the kids put it in their resumes) anybody is going to remember them by the time they graduate from college. As for their physical appearance, I’ve watched the ad a few times, and I would be hard-pressed identifying any of them in a line-up (of course, being over 60, my eyesight isn’t what it used to be !) … so, by the time the graduate, again, it would take some hard-ass personnel manager to be able to recognize them, especially since people this young are bound to change physically so much that only their families might be able to remember what they looked like years before.
This whole article is all BS from people who have an axe to grind or are so PC (Politically Correct, I mean) it makes one wonder …
Poor kids, my heart bleeds for them …
Stars for being sued (not prosecuted !), and stars for being in the ad, and then Pepsi and Apple finance their “settlement” with the RIAA …
February 4th, 2004 at 4:20 pm
From dictionary.com the definition of PROSECUTED…
To initiate civil or criminal court action against. (So she is correct when she says she was prosecuted)
To seek to obtain or enforce by legal action.
To pursue (an undertaking, for example) until completion; follow to the very end.
To chase or pursue (a vessel): “He held a dispatch saying that [they] had prosecuted and probably killed an Echo-class missile submarine” (Tom Clancy).
To carry on, engage in, or practice.
v. intr. Law
To initiate and conduct legal proceedings.
.
February 4th, 2004 at 10:51 pm
I was shocked and amazed at the stupidity and futility of your article. I can’t beleive that you wrote an entire article about the misuse of the legal definition of the word prosecuted and the possible self-image issues of 16 teenagers. I promise you that their 30 seconds of fame did nothing but great things for their self esteem and populatiry. Do you honestly beleive that there is a single teenager in the entire world who has ever thought “I hope none of the other kids think that I might be a rule-breaker.” or “I am very concerned that someone might mistake any civil litigation in which I have been involved for some sort of criminal trial.” No!!!! Teenagers don’t think like that. Those kids are thinking “Dude!!! I was on TV!!!!” and “Doesn’t that picture look like I’m telling the RIAA to shove it up its ass?” There is a slight possibilty that in 30 years one of them will be over controlling enough to possibly worry about the maintenance of a perfectly angelic and law abiding image but I can’t even remember what the kids looked like today; there is no way that anyone even next year will recognize one of these kids on the street. If they are later embarrassed by the commercial no one in their future will ever have to know that they made it.
As far as their parents are concerned I’m sure they are just glad that someone is paying that fine of $3,000.
This article is the worst example of someone taking his own irrational image consciousness and assuminng that everyone else shares in his stupidity that I’ve ever read. I think it is sad that you would be bothered were you in these teenagers’ situations but I think it is downright pathtetic that you think that they are too.
February 5th, 2004 at 12:35 am
To “muddy” the cash flow waters even further, you are kidding yourself if you think that Pepsi is paying anywhere near $1 per song for this. First of all, they would get a huge discount based on the number of caps that would presumably be thrown away without ever being used–probably somewhere on the order of 50%. Second of all, Apple and the RIAA/record labels would likely give them an even further discount considering that Pepsi was contracting for more than 400% of the total songs ever downloaded by iTunes. Basically it would be in the best interests of all of the parties to trade some “upfront” profit in the deal (i.e. Pepsi’s fees) in order to establish the iTunes name and method of distribution and hopefully recoup it in the longer term. At the end of the day, I would be extremely surprised if the whole contract with Apple cost Pepsi more than $20 million–of which probably 66%, or $13.33 million went to the labels.
February 5th, 2004 at 2:01 am
I do understand what you’re saying regarding what people might think of these kids for stealing music, for being a convicted thief, but my question to you is more along the lines of:
Isn’t that the case, regardless?
I feel if we’re looking at the technicalities of the use of the word “prosecuted”, people who are educated enough to know the legal distinction between that and “accused” are also people who will know enough to understand the point of the advertising campaign. While those who do not know this distinction likely already have these feelings toward the kids, as each of these kids have appeared in newspaper articles, magazines, and journals around the country for what the RIAA is doing.
Among kids, these kids are heros. Among a large (hopefully majority) of adults, these kids may have done something wrong, but they aren’t ruthless criminals.
I don’t feel that the ad campaign is going to change people’s perception or image of what the RIAA lawsuits have done or continue to do. I do agree that I haven’t seen this sort of campaign come out of Apple before, but I have to assume that Pepsi did most of the legwork on this ad campaign, as it never mentions Apple, shows the logo, or anything, but only references iTunes and music downloads. It feels like a Pepsi ad that happens to involve a product Apple has, and Apple OK’ed it.
But so my point is, comparing this ad to 1984 is ridiculous. This isn’t an Apple ad, this isn’t Apple’s new message. Taco Bell, McDonalds, they have all had ad campaigns surrounding Apple products in the past, for contests, sweepstakes, etc., but they certainly do not go down in history on Apple’s record.
I hope that makes sense. I mean, it is illegal to download music from P2P, and there should be certain consequences for doing that. Whether or not these kids actually did it is another matter, and one that doesn’t seem to be altered by this ad campaign in my opinion. As corrupt as RIAA may be, it’s not a justification for stealing music, only an excuse for those who want free music.
The more effective method is to buy only independant artists, which iTunes Music Store DOES provide, so not all 100 million downloads will be pumped back to the RIAA…
February 5th, 2004 at 9:27 pm
i’m 16 years old, i consider myself a pretty cool guy. i have a girlfriend, i go to concerts.
if i were one of those kids, i would NOT think “Doesn’t that picture look like I’m telling the RIAA to shove it up its ass?”
i would be embarassed of being in this advertisement, sucking up to huge corporations.
i don’t consider downloading music “breaking the rules” or “being rebellious”
when everyone does it, its not exactly cool, or cool to star on tv for it.
the majority of my peers would be much more proud of being on tv for a cause (im not gonna be specific here, because this is not the place to start political fights), rather than earning money for a CEO.
a 12 year old might think it would be cool to be on tv for something like this, but most of us are not corporate whores, to be blunt.
February 6th, 2004 at 5:16 am
If we’re going to talk about misuse of legal terms, the RIAA propaganda machine should note that their “Illegal downloading of music is theft” mantra is just as inaccurate.
If sharing music is theft, why are they being sued, and not charged? Because the only thing the people who are downloading and sharing music are doing is violating the terms of the copyright that you purchase when you buy a CD or song. It is not, by definition, theft. RIAA’s position is like saying I should automatically turn myself in and pay a fine everytime I drive faster than the speed limit…and that if I don’t, it’s the same as stealing from the government.
February 13th, 2004 at 5:05 am
This commerical caught my eye, I immediatly thought “Girl, are you proud to say your reading a script that is calling you a criminal”… guess she was…
great article by the way