Saturday, 20 December 2014

US Tort Law Facilitating Pyongyang Victory

Great Leader Strikes Again

It's official.  The FBI has confirmed that the hack of Sony computers came from a foreign "power", North Korea.  The psy-ops war has so far been a total victory for one of the nodes in Bush's Axis of Evil.  Allegedly, a specialist hacking unit operating out of North Korea hacked into Sony's computers and databases to "punish" the company for daring to make and planning to screen The Interview, a satirical comedy sending the North Korean dictator up the creek.  Sony could not have chosen a more fitting and worthy subject for a satirical roast. 

North Korea finally disclosed its hand when it threatening to bomb any movie theatre showing the film.  The language employed in the threat was eerily reminiscent of your average, every day fulminating eructation out of Pyongyang.  Ironically, in the long term, this would likely make the movie one of the great cult classics of all time.  Kim Jong Un would forever be remembered as a pompous idiot with no sense of humour (as well as a moral monster).  Watching the movie would become a delicious act of sedition against a petty tyrant; laughing at Dear Leader would become a political act, a blow for freedom.  Sony could never buy that much notoriety and publicity in their wildest dreams.  (We have no doubt that conspiracists will eventually claim that the Sony hacking was all an inside job to immortalise the movie.)

That is, unless Sony completely caves in.  There are signs that it will do so.
  The intended screening of the movie has been cancelled in movie theatres across the country.  Now, at first blush, this seems like an act of national cowardice.  It would appear that the cocky, self-aggrandizing  American bolshieness has ended not with a bang, but a whimper.  After all, it is the coward who talks the biggest game and runs at the first sign of danger. 

But there are deeper issues and worse villains at work, it seems.  Blogger Patterico, a district attorney, discusses the likely real reason movie theatres have refused to screen The Interview
Why is “The Interview” being pulled? Why was Steve Carell’s “Pyongyang” cancelled? In the first instance, you can blame the lawyers.  Once all the major movie chains decided not to show the film, that was the end. Why did they make this decision? I’m sure part of the reason is that they worried moviegoers would stay away from the theaters showing the movie, whether the patrons were there to see this film or not.

But I’d say one major reason the chains decided not to show the movie is that they worry about lawsuits if something happens. Ridiculous hyperbole? Nah. For example, the victims of the Aurora shooting are suing Cinemark over an act perpetrated by a lone gunman. The suit has survived summary judgment, meaning it will cost the chain millions whether there is a settlement or a jury trial. You think chains weren’t thinking about that case and similar litigation when they refused to show “The Interview”?

The apparent decision to forego streaming and DVD sales is also the work of lawyers, from what I have read. Apparently, to collect on insurance, Sony needs a total loss. I would think an insurance company would want them to mitigate their losses, but I don’t write the contracts.

Plus, once the company decides to pull the movie from theaters — a decision that will cost them as much as $200 million, some executive’s head is going to be on a platter. Probably the heads of a bunch of executives. They will be told they should have seen this coming. Now imagine being the guy who decides whether to do a DVD release. You can face the fate of those other executives, or play it safe and kill everything, pointing the finger at the people who are getting sacrificed anyway.

A similar thought process is going on with respect to any movie in development or being considered now: is there some madman or group of madmen who might make violent threats over this? If so, then the project is dead. Simple incentives at work.

Yes, there is a healthy dose of plain cowardice involved here too. (I understand many of you see this as a business decision, but I think you — and the chains — are taking the short-term view over the long-term.) But don’t discount the power of tort law to scare companies into doing ridiculous things. That, in large part, is what started the ball rolling.
Who would have thought that American tort law would have become such an effective weapon in the hands of the Great Leader?  


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