p2pnet - rss feed: Super Bowl iTunes-Pepsi ad slammed
On Super Bowl Sunday - February 1 - the New England Patriots and the Carolina Panthers will hold millions of Americans, and significant numbers of people in other parts of the world, in thrall as they fight for dominance.
A select few ad agencies paid fortunes to make sure their clients’ products are in the faces of this gigantic captive audience.
But Apple Computers, who in the 1984 game launched Macintosh in what also became the first event ad, was significantly absent from the 2004 line-up, in spite of rumous that it was planning something big.
That’s because this year, it teamed up with Pepsi-Cola. And the RIAA. And its iTunes “event ad” is more likely to be remembered in infamy than as a triumph.
It features 16 naive US teenagers ‘persuaded’ to appear as virtual criminals in a multi-million-dollar campaign put together by BBDO, a major New York advertising agency, promoting Pepsi-Cola and Apple Computers’ iTunes, and backed by the RIAA, Big Music’s public face.
The teenagers were identified by the RIAA as being 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 in question has Pepsi ‘giving’ away 100 million iTunes songs as a promotion. Waving bottles of soda, the stars - the 16 kids, names and addresses provided by the RIAA which sued them - let everyone know that’s the way to go. No more ‘illegal’ downloads for them!
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.
Of the commercial, “It’s all in good spirit,” says Dave Burwick, chief marketer, Pepsi, North America.
Josh Wattles, however, doesn’t think that adequately describes the spot. 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.
“Falsely attributing criminal conduct”?
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
