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posted by chromas on Thursday April 04 2019, @12:00PM   Printer-friendly
from the dinosaurs-stuck-in-the-past dept.

Justice Department Warns Academy Over Potential Oscar Rule Changes Threatening Netflix

The Justice Department has warned the Academy of Motion Picture Arts and Sciences that its potential rule changes limiting the eligibility of Netflix and other streaming services for the Oscars could raise antitrust concerns and violate competition law. [...] According to a letter obtained by Variety, the chief of the DOJ’s Antitrust Division, Makan Delrahim, wrote to AMPAS CEO Dawn Hudson on March 21 to express concerns that new rules would be written “in a way that tends to suppress competition.” [...]

The letter came in response to reports that Steven Spielberg, an Academy board member, was planning to push for rules changes to Oscars eligibility, restricting movies that debut on Netflix and other streaming services around the same time that they show in theaters. [...]

“if the Academy adopts a new rule to exclude certain types of films, such as films distributed via online streaming services, from eligibility for the Oscars, and that exclusion tends to diminish the excluded films’ sales, that rule could therefore violate Section 1.” [...]

The letter reflects concerns that the Justice Department has been concerned about the ability of traditional media outlets to limit competition from new streaming video entrants, even those that have grown significantly in recent years like Netflix and Amazon Prime. [...]

Now if only Netflix could replicate the true theater experience of cell phones, crying babies and being searched like a criminal.


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  • (Score: 4, Interesting) by exaeta on Thursday April 04 2019, @04:37PM (4 children)

    by exaeta (6957) on Thursday April 04 2019, @04:37PM (#824581) Homepage Journal
    An award ceremony can't violate antitrust it's pure speech. I suppose it could, but then it would make the antitrust rules unconstitutional...
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    The Government is a Bird
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  • (Score: 2) by maxwell demon on Thursday April 04 2019, @08:09PM (3 children)

    by maxwell demon (1608) on Thursday April 04 2019, @08:09PM (#824674) Journal

    From the same logic, you could also say that a contract is just speech (actually writing, but that's just as protected as speech).

    --
    The Tao of math: The numbers you can count are not the real numbers.
    • (Score: 2) by exaeta on Friday April 05 2019, @10:25PM

      by exaeta (6957) on Friday April 05 2019, @10:25PM (#825156) Homepage Journal

      The difference is that contracts have a legally recognizable effect.

      Awards don't. They are statements of opinion. "We the judges, think that these movies are the best". It's thusly a form of expression.

      Contracts can be a form of pure speech as well, for example, if I were to show someone a contract I designed, or someone else designed. Only the legal act of entering into a contract isn't pure speech, the contract text itself is pure speech.

      --
      The Government is a Bird
    • (Score: 2) by exaeta on Friday April 05 2019, @10:42PM (1 child)

      by exaeta (6957) on Friday April 05 2019, @10:42PM (#825162) Homepage Journal

      Expression:

      Here's a contract I was thinking about using.

      This is expression. John Doe is conveying information or opinions to you and nothing more. The text of the contract is also part of the expression.

      A command:

      Go kill Robert!

      Not expression, but rather an imperative, or an order. John Doe is not simply providing information or opinion, but rather giving an order to take some action.

      Contracts, likewise, are pure speech in the sense that you are free to share them with others, express ideas for things to put in a contract, and discuss them with others. As long as you are performing "expression" which involves sharing information and opinions, you're good.

      An offer to enter into a contract, though, is not pure speech, since it is not "expression" or the conveyance of information, but rather an "offer" under the law. Likewise, the enforcability of a contract is a different thing from the question of whether or not I am allowed to show you the contract.

      The fact speech is used to make an offer is irrelevant, since the first amendment doesn't prohibit "incidental" restrictions on speech, where the thing restricted (making a certain contract) is the actual target of the regulation, so long as it goes no further.

      Award ceremonies most definitely fall into the pure speech category. I am free to exclude anyone from my endorsements of quality. Basically, where a statement is one of opinion, the government isn't allowed to censor it, or question the motives behind it. The government simply lacks authority to regulate statements of opinion because they are pure expression. A oft quoted quip from Reed is that where a governmental regulation cannot be justified without regard for the content of speech, it is a content based speech restriction.

      The government cannot justify an antitrust case against a contest operator without regard to the content of speech, specifically the expression of giving awards. The First Amendment concern here is a "higher law" than the antitrust laws, so they can't touch choice of giving awards, even if it's done for an anti-competitive end. An argument that the contest would be subject to the "false or misleading" exception fails for the simple reason that the "best" movie is a "pure opinion" and thus cannot be false or misleading no matter how devious the reasons for choosing it.

      --
      The Government is a Bird
      • (Score: 2) by exaeta on Friday April 05 2019, @11:03PM

        by exaeta (6957) on Friday April 05 2019, @11:03PM (#825170) Homepage Journal

        I should probably add that one thing people often get confused about is the meaning of an "incidental" restriction. Particularly, a law can be judged in two instances, the per se context, which is the law itself, and the as applied context, which is the application of the law to a particular set of circumstances.

        Even when a law, such as an antitrust law, isn't a regulation on speech per se, it can still be a restriction on speech if applied to a particular set of circumstances.

        The question of whether or not a particular regulation would be an incidental restriction on speech can be viewed as asking whether the regulation is itself targeting speech, or the speech is merely used as a tool to accomplish the non-speech goal. So then isn't the use of awards for anti-competitive purposes able to be regulated under the incidental regulation exception? Not so fast! Legal regulations can't target specific intents in isolation, they require an actus reus to analyze them in context under the "as applied" rule. What this basically means is that the regulation has to be evaluated in context to see if it is a regulation on: expression of opinion, truthful expression of fact, deceitful false or misleading expression, inducement, offer, exchange, trade, consideration, payment, assistance, other physical act, transfer of property, etc. Once the question of what is actually being regulated is established, the regulation can be evaluated "as applied". For attacking an award ceremony under antitrust law, the thing being regulated is the refusal of the contest operators to endorse streaming services. The problem is that regulations against "refusing to endorse" are actually regulations "requiring endorsement" by the rule of double negatives. In other words, a regulation that prohibits refusal to take an action is the same as one compelling the completion of that action, which is a bit of a problem for the antitrust case here. The antitrust case argument here becomes an argument for compelled endorsement, and whoops, that's a compelled statement of opinion, which the government is not allowed to do. The government can only compel the disclosure of facts, and only under certain circumstances. It can't force you to make endorsements!

        --
        The Government is a Bird