I don’t think I’d be overstepping things by assuming that most of you reading this have purchased a CD at some point. If you have a CD player on your computer, you may have copied that CD onto your computer so you could listen even without the actual recording. If you’re internet savvy, you may have downloaded legal mp3 recordings from such sites as mp3.com, ampcast.com, or other such sites. And file sharing (peer-to-peer) sites, such as Napster, have become almost a part of our vocabulary in the late nineties.
Yet lobbying groups such as the Recording Association of America (RIAA) say that the downloading of “unauthorized” or “pirated” mp3 files is costing them billions of dollars, and they’re getting the government to back them up. They claim that the 6.7 percent drop in CD revenue between 2001 and 2002(1) is wholly due to file sharing and the piracy of music by millions of Americans. In fact, they’ve gone so far as to modify legislation to make it illegal to have “unauthorized” files on your computer. The penalty for having such a file on your computer, according to the No Electronic Theft Law (The “NET” Act) could be as much as five years in prison and $150,000 in fines, per file!(2)
Fair use? Or no use?
The problem, however, is that while making it easier for individual downloaders to be prosecuted for “piracy”, the government has done little to determine what “fair use” really is. According to the NET Act, you can be prosecuted even if you’re not profiting or gaining in any way from the use of individual files. But the NET Act also amended the definition of “commercial advantage of private financial gain” to include receiving anything of value, which includes other mp3 files. In other words, even if I have a file that I got from a legal site, I’m guilty of “profiting” from the file, and could be fined $250,000 and imprisoned!(3)
The fact is, for every so-called unauthorized mp3 traded online, there are hundreds of perfectly legal mp3s available. I myself have almost 2,500 files of independent musicians’ music, which I have gathered in the course of reviewing music online. All of these files were legally obtained, and therefore I have the right to keep them on my computer and burn them to CDs to keep as my own. I also have almost one hundred mp3s created by myself, of my own intellectual property. I therefore have the right to keep these on my computer, and share them online as I so choose. The person who downloads from me should not be held responsible for “theft” for doing so.
Fighting “theft” with . . . theft?
But that’s where the line grays, and the government steps over it. Take this quote for example, from Anthony Weiner (Rep. D-NY):
“You all [colleges and universities] have been relatively timid in your approach. If some kid had his computer go up in flames because he was downloading a file, the message would get around pretty quick.”(4)
Yes, this is in exaggerated suggestion for how to “fix” the problem. But in light of recent congressional proposals, it doesn’t seem to be a far-fetched one. Last July, Reps. Howard Berman (D-CA) and Howard Coble (R-NC) sponsored a bill that would allow those copyright owners who have “reasonable basis to believe piracy is taking place to perform nearly unchecked electronic hacking to prevent such piracy.”(5) That could include infecting a suspected pirate’s computer with trojan horse viruses, which would allow them to hack into your files and delete files suspected of being “unauthorized”.
I wonder if any of them have ever read the fourth amendment.
“I think it’s wildly overreaching,” says Jessical Litman, a professor at Wayne State University, who specializes in copyright law. “Copyright owners are in essence asking Congress to say that peer-to-peer file trading is such a scourge . . . that stopping it is more important than enforcing any other laws that federal or state governments may have passed on computer security, privacy, fraud, and so forth.”(6)
Yet the political lobbyists behind this piece of proposed legislation claim that they’re not attempting to hurt individual users, but rather just affect the bigger pirates.
“No one in the industry has any interest in invading your computer or doing anything malicious with your files,” says Fritz Attaway, the Motion Picture Association of America’s senior vice president for government relations. “The idea is to make unauthorized file sharing sufficiently inconvenient or at least unsuccessful.”(7)
Sounds like a plan, right? Something everyone in America would be glad to support, since piracy is theft. But it isn’t that simple. Hidden in this legislation, they’ve managed to cover themselves in case an individual user, like me, has their computer hacked and files “unintentionally” deleted. The legislation, while it says copyright hackers should not be in the business of deleting files, limits the right of anyone subject to such intrusion to sue if files are erased. Anyone whose computer is damaged by such action would be required to get the permission of the U.S. Attorney general before filing suit, and such a suit could only be filed if you could prove actual monetary loss. “Unless I can show economic harm, I can’t even be compensated,” said Litman. “Even if I want to be compensated, I have to jump through procedural hoops.”(8)
I take issue with legislation like this, where the people hurt are going to be the individual users, not the big time pirates. The people who legally download mp3s will be subject to having their files and computers invaded or confiscated by the government, with no recourse and no way to guarantee return of the “evidence” if a case is later dropped. And with congressmen like Anthony Weiner looking for scapegoats to make examples out of, they’re going to find the college student with 10,000 legal Dave Matthews Band files before they’ll find the guy selling bootlegs for millions.
Coming Soon . . .
Part II: So who’s robbing who?
(1) “Market Data“. An RIAA Newsletter http://www.riaa.org, accessed on March 4, 2003 – publication date and authors unknown.
(2) “What Is Piracy?” and “Campaign Against Online Piracy“. http://www.riaa.org/Protect-Online-2.cfm, accessed on March 4, 2003 – publication date and authors unknown.
(4) Snider, Mike. “Lawmakers Say Colleges Failing to Curb Illegal File Sharing“. USA Today, February 27, 2003
(5) McCullagh, Declan. “Could Hollywood Hack Your PC?“. CNET.com, July 23, 2002.
(6) McCullagh, Declan.
(7) McCullagh, Declan.
(8) McCullagh, Declan.