Jack Valenti (1921 - 2007)

It is fair to say that Jack Valenti was by no means a technological visionary. His ear was turned to the interests of who we now call "content providers," who by all accounts were the last to board the digital media bandwagon. Some believe digital media evolved to the point it is today, despite the best efforts of media providers.

Reading his words and listening to his speeches and lectures, it was clear even to himself that Valenti didn't comprehend the mechanics, dynamics, or nature of media technology in the late 1970s and thereafter.

In his historic testimony before Congress in April 1982, seated beside Clint Eastwood and other representatives of the film and theater industries, Valenti argued in favor of reinforcing copyright law to help compensate for what he believed would be an unrecoverable loss, due to the proliferation of the video cassette recorder.

"Unless the Congress recognizes the rights of creative property owners as owners of private property," he testified, "that this property that we exhibit in theaters, once it leaves the post-theatrical markets, it is going to be so eroded in value by the use of these unlicensed machines, that the whole valuable asset is going to be blighted. In the opinion of many of the people in this room and outside of this room, blighted, beyond all recognition. It is a piece of sardonic irony that this asset, which unlike steel or silicon chips or motor cars or electronics of all kinds - a piece of sardonic irony that while the Japanese are unable to duplicate the American films by a flank assault, they can destroy it by this video cassette recorder."

It is that last sentence that, on so many levels, demonstrated not just Valenti's lack of perception of what his industry would become, but the lack of vision among those who prompted him to be their champion before Congress.

But what he lacked in technological vision, Valenti more than made up for in his comprehensive understanding of the law and of the customs of movie audiences. In a statement later that day that would eerily mirror the arguments put forth in the landmark MGM v. Grokster case over two decades later, he asked Congress, "Now, Mr. Chairman, how many people would want to buy these machines if you said you couldn't use any copyrighted material on it? The machine would be useless and this is what the Ninth Circuit [Court of Appeals] said. They advertise their machine blatantly and deliberately saying the way to enjoy this machine is to copy somebody else's copyrighted programs."

Speaking before the MIT Communications Forum in 2004, Valenti defended his remarks of 22 years earlier by reminding the audience that the context under which we now understand the home recorder had yet to come into fruition, and that it wasn't his stated wish to outlaw the VCR or the VHS tape format. "No one remembers the context in which I said that," he remarked. "Instead of abolishing VHS, I believed there should be a copyright royalty fee on blank cassettes, which is what they do in Europe now, and the money goes back to the owners of the copyright. The Supreme Court did not rule that VHS infringed upon copyrights, so there was no royalty fee."

When at the dawn of the 21st century, peer-to-peer file-sharing technology would symbolize the chaos in content management that Valenti, who represented theater owners, had feared, he became the technology's principal antagonist. "If Napster can encourage and facilitate the distribution of pirated sound recordings," he wrote in 2000, "then what's to stop it from doing the same to movies, software, books, magazines, newspapers, television, photographs or video games?"

In his view, he didn't need to understand, embrace, or frankly acknowledge the technology that made content theft viable. Stopping it, for him, was a matter not of engineering but of principle. "Creative works are valuable property and taking them without permission is stealing, whether you download movies illegally or shoplift them from a store," he wrote later in 2000. "Technology may make stealing easy. But it doesn't make it right."

Valenti's principles put him squarely at odds with the most learned scholars in the field of media copyright, including noted Stanford University professor Lawrence Lessig. But even though their viewpoints were diametrically opposed, Prof. Lessig found a kindred spirit. This morning on his personal blog, he mourned Valenti's passing: "He was brilliant, and funny, and extraordinarily generous. We debated four times. In each he was self-deprecating, funny, and very, very clever - feigning ignorance where it helped, pouncing when it worked...Valenti taught me many things. But best among those things was the importance of civility. He was respectful and strong, never demeaning or belittling of those he disagreed with. A conversation with him would not produce converts. But it did, in important ways, produce understanding."

It was his gregariousness and civility which defined Jack Valenti. In a realm which was evolving beyond his understanding, he continued to make us mindful of the fact that, as advocates of the causes we choose, we are losing sight of the fine art of compromise and the true power of public discourse. If the evolution of technology in the media yet proves his fears unfounded, in doing so, it will have proven his faith in the people - in "General Audiences" - to have been true and valid.