Andrew P. bridges, State Bar No. 122761
richard nessary, State Bar No. 180682
jennifer a. golinveaux, State Bar No. 203056
terri y. chen, State Bar No. 209854
alexander d. macgillivray, State Bar No. 212770
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
CINDY A. COHN, State Bar No. 145997
FRED VON LOHMANN, State Bar No. 192657
ROBIN D. GROSS, State Bar No. 200701
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: (415) 436-9333 x 123
Facsimile: (415) 436-9993
JOSEPH R. TAYLOR, State Bar No. 129933
JEFFREY K. COMPTON, State Bar No. 142969
LINER YANKELEVITZ SUNSHINE & REGENSTREIF
3130 Wilshire Boulevard, Suite 200
Santa Monica, CA 90403
Telephone: (310) 881-2192
Facsimile: (310) 453-5901
Attorneys for Defendants
MusicCity.com, Inc. (now known as StreamCast Networks, Inc.) and MusicCity Networks, Inc.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Metro-Goldwyn-Mayer, et. al.,
Grokster, Ltd. et. al.,
Case No.: 01-08541 SVW (PJWx)
DECLARATION OF RICHARD PRELINGER IN SUPPORT OF MUSICCITY.COM, INC.’S AND MUSICCITY NETWORKS, INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT
I, Richard Prelinger, hereby declare:
1. My name is Richard Prelinger. I reside in San Francisco, California.
2. I am currently founder and president of Prelinger Associates, Inc., known in the trade as Prelinger Archives, which I founded in 1985. Prelinger Archives is a for-profit archive of historical moving images that furnishes stock footage to the media production community through Getty Images, Inc., its exclusive representative.
3. I served on the Board of Directors of the Association of Moving Image Archivists (AMIA), a professional organization, between 1993 and 1997, and am currently AMIA's representative on the National Film Preservation Board, as appointed by the Librarian of Congress.
4. Before founding Prelinger Archives, I worked as a researcher and archival consultant on motion pictures and television programs. Between 1989 and 1995, I was Director of Archival Development at The Comedy Channel and Home Box Office, both in New York City. In 1989, my company published Footage 89: North American Film and Video Sources, the definitive compendium of public and private moving image collections. I attended the University of California at Berkeley, completing four years of classwork in 1979.
5. Prelinger Archives has assembled and owns a collection of over 48,000 "ephemeral" (advertising, educational, industrial, documentary and amateur) films produced between 1903 and 1990. Approximately 60% of this material is in the public domain; we own rights to approximately 5%; and the remainder, currently under copyright, is available for on-site reference use only. We are known in the industry for both breadth of imagery and high image quality, and for our exclusive coverage of many aspects of American cultural and social history.
6. Prelinger Archives is a commercial, for-profit venture. The market for our stock images and sounds is wide and continues to broaden as the number of media outlets increases. We license footage to motion picture producers both in and out of Hollywood; broadcast and cable television networks and production companies; software developers and publishers; educational media producers; corporate video producers for both in-house and external use; to advertising agencies for commercials, print advertisements and presentations; to concert promoters and theatrical promoters for use in conjunction with their events and productions; to government agencies at every level; to artists and nonprofit organizations for a wide variety of projects; and clients in many other market areas.
7. Historically, collectors or custodians of public domain materials have exercised a high degree of physical and contractual control over the material in their possession, in an attempt to monopolize their purported exclusivity of imagery and to prevent unauthorized copying. Though we shared this perspective when we began in business, we quickly found this to be short-sighted.
8. In 1987, we partnered with The Voyager Company, a pioneer publisher of videodiscs and CD-ROMs, to publish two one-hour anthologies of key ephemeral films from our collection. Though the first two compilations sold only some 20,000 copies, they proved influential in building our reputation as a source for unique and evocative historical imagery within the production community, and, though we had not anticipated that they would so function, ended up serving as excellent "demo reels" of our holdings, bringing us new business (as well as national publicity on every major television network).
9. In 1994, we began production on an expanded anthology of 12 CD-ROMs, 10 of which were published, that contained a substantial number of historical films from our collection together with contextual material. This anthology also brought us a good deal of press attention and new business. It is important to note that we did not prohibit users of this second anthology from copying the movies and using them for their own purposes.
10. Our experience with these digital anthologies convinced us that widespread distribution of our films, along with the resultant publicity, built our "brand" in the area of archival footage. Our willingness to distribute freely in digital formats also served to differentiate us from the growing pool of other companies specializing in this area.
11. As a result of our early experiences with digital distribution, in 2001 Prelinger Archives arranged to have 1,001 of our most popular public domain films digitized and made available through the Internet Archives at www.moviearchive.org. In an effort to maximize the commercial value of this wide distribution, further reuse and redistribution of the digitized films (whether by the community of peer-to-peer software users or otherwise) was left unrestricted.
12. Our partnership with the Internet Archive has addressed many business issues for us in a promising way.
13. First, by building the largest publicly available archival film collection on the Web, we have accomplished an enviable goal -- the capability of providing demo reels to anyone, anywhere, at no cost to ourselves. When a prospective client requests a copy of a given film or image, odds are that it is available online for free. This means that our active involvement with the transaction begins after the choice has been made, and we don't have to pass through the laborious research stage.
14. Second, free distribution through the Internet Archive, and from there further redistribution through other sources, has increased brand visibility for Prelinger Archives.
15. Third, since the images in the Internet Archive are freely downloadable, we believe that they will be used more readily than images in other collections. In the stock image business, ubiquity equals sales. Some years ago, the director of the Time-Life Photo Collection told me that the most used, yet also most remunerative image in her collection was the famous photograph of the 3-D film audience, all seated wearing stereoscopic glasses. This picture has been reproduced so often as to become a cliche, but this has actually increased sales. From our perspective, frequent use of our images will increase the frequency of demand for them.
16. Fourth, we can now refer worthy but financially-challenged users to the website, where they can get material for free without ourselves having to incur any costs. We will still gain from the publicity they generate for us, and the visibility of the images they use will ultimately benefit us.
17. Peer-to-peer networks represent a very exciting opportunity, as they will propagate images even more widely without increasing our costs. As discussed above, Prelinger Archives believes that widespread, unrestricted digital distribution of our films brings important commercial benefits. As a result, we welcome further redistribution of the Prelinger films made available at the Internet Archive by individuals using peer-to-peer software products like Morpheus, KaZaA and Grokster.
18. By voluntarily "hosting" our films and making them available to the millions of others in the peer-to-peer community, the users of these peer-to-peer software products are amplifying the availability of the Prelinger films, extending our reach beyond that of the Internet Archive alone. To the extent this is done without imposing any additional costs on Prelinger Archives, whether in the form of hosting or bandwidth charges, this is great for us.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that this declaration is executed in _____________________________________, _______________________ on ____________________, 2002.