spiraling towards contentless content
a week's worth of op-ed
Posted: 2003-06-26 02:22
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Author: Phil Gengler
Section: Stuff

It's been a busy week and a half since my last update, so this will be a long one.

The most obvious thing to look at from the week is Senator Orrin Hatch's remarks about curbing illegal downloads. During a hearing about curbing illegal file downloading, Sen. Hatch said he would be interested in exempting copyright holders from anti-hacking laws, so that they could remotely destroy the computers of suspected file-sharers. He said that it "may be the only way you can teach someone about copyrights."

The Senator later clarified his position, stating that he did not favor extreme measures, unless no moderate remedies can be found, and that he feels the industry is not doing enough to find working ways to stop people from illegally downloading files.

Senator Hatch serves as chairman of the Senate Judiciary Committee, and as such, can have a significant impact on legislation. It will be important to keep an eye on Sen. Hatch in the coming months, as his comments were not made in jest. To allow anyone to give copyright holders the power and authority to remotely destroy the computers of suspected file-sharers simply cannot be allowed. Recent history is showing us that groups like the RIAA are nowhere near 100% accurate in their ability to determine whether a person is illegally sharing copyrighted material. To allow them to independently determine a sharer is infringing, and then destroy their computer based on information no one outside the RIAA sees, without any need to show any proof, or obtain any authorization to do so, would be the worst thing that Congress could do.

On Monday, the US Supreme Court delivered it's decision (or rather, decisions) in the case of United States vs. American Library Association. The ALA was opposing mandatory filtering software on Internet-connected computers in public libraries, as stipulated by CIPA (the Children's Online Protection Act). In a 6-3 decision, the Supreme Court overturned the lower court's decision and said that mandated filters were in line with the Constitution. Justice Rehnquist wrote the plurality opinion, with Justices Breyer and Kennedy each writing concurring opinions, and Justices Stevens and Souter (with Justice Ginsburg) writing dissenting opinions.

CIPA, among other provisions, required that public libraries install filtering software on Internet-connected computers. Most currently available filtering software keeps it's databases secret, with some even claiming them as copyrighted material. This makes it obvious that these companies aren't going to easily reveal the contents of their databases, and the only way to find out if a site is blocked would be to try and get to that site from a filtered computer. This means people using these computers are restricted in the type of information they can access. It's quite likely that pornographic sites aren't the only ones being blocked by these filters. Sites having content related to sex may be blocked, though they may have no pornographic content whatsoever. There are some people who even say that sites having certain political views may be blocked, and I don't doubt that this is sometimes the case.

Today, Congresswoman Zoe Lofgren and Congressman John Doolittle introduced the Public Domain Enhancement Act. This act would require a small payment to keep a work under copyright. As written, a $1 payment would be required after 50 years of copyright protection, and then every 10 years following that up until the end of the copyright term. Works for which the fee is not paid would be considered 'abandoned' and become part of the public domain.

As before, I still don't think this law is going to work out as intended. Sure, it's wonderful to see that there's such an interest in doing something about reforming excessive copyright terms, but I don't think this law is going to accomplish that. My biggest concern is still that should this pass and become law, in 17 years, when Disney is lobbying for another term extension, they're going to point to this law as evidence that there is already some recourse for abandoned works, and that works remaining 'commercially viable' should receive the benefit of longer protection. This would defeat the entire purpose of the law, and still flies right in the fact of "promot[ing] the progress of ... the useful arts" because it's not driving progress at all. To settle for something like this, while it would be a small victory, could be the undoing of the larger fight, and I would hate to see all the effort poured in to this cause lost because we settled for something lesser.

Last Thursday, Representatives Lamar Smith and Howard Berman introduced the "Piracy Education and Deterrence Act". This act would charge the FBI with developing deterrents to peer-to-peer networks, and the Justice Department to develop programs to educate the public about copyright, and why copyright violation is bad. The bill also claims that P2P programs pose security and privacy threats to their users. To me, this just seems overly redundant; things that are illegal remain illegal, and things that are legal remain legal. All that really changes is that the government has to spend money on an education campaign. Since it's the RIAA and the MPAA who are likely behind this bill, I personally feel they should be footing the bill for getting the word out on copyright violation, and not waste federal funding on something like this.

Also in the news recently is the RIAA's new plan to go after "substantial" file sharers. I'll no doubt take a lot of flak for this (and I appreciate hearing any comments you have on this), but I think this is what the RIAA needs to be doing. I fully agree that peer-to-peer networks have plenty of non-infringing uses, and shouldn't be shut down because it's being used by some for copyright infringement. But, and let's face it, there are a large number of people downloading and sharing works that are under copyright, and that they do not have permission to share. At it's very core, that is what copyright is, a creator's (or copyright holder's, as the case may be) right to control distribution of their copyrighted works. If the RIAA can show, beyond the shadow of a doubt, that the people they accuse are guilty, and they knew this full well before pressing a lawsuit, then I think they're only doing what they should be, protecting their property. This is simple copyright infringement, not a DMCA violation, or most likely involving works affected by longer copyright terms. The people sharing these files are distributing them without the permission of the copyright holder, and that is exactly what copyright is (or rather, was originally designed) to protect against.

No doubt these tactics will have a large backlash though, as a lot of the people sharing these files are just average 'Net users. Jay Moiron made an insightful comparison between the tactics of the RIAA/MPAA and a scene from the movie Fight Club. The scene being referenced is the banquet scene, when the police commissioner is abducted by members of Project Mayhem. While holding the commissioner down, Tyler says "The people you are after are the people you depend on. We cook your meals. We haul your trash. We connect your calls. We drive your ambulances. We guard you while you sleep. Do not fuck with us." This largely parallels the underground warez scene, movie pirates, file sharers, etc. The people sharing these files, and the people downloading these files, are people from all walks of life. These people have jobs from all over the spectrum, probably ranging from government jobs down to fast food employees. These people are the ones the RIAA/MPAA are going after. More importantly though, these are the people they depend on for their continued survival. All kinds of people buy music, and watch movies, and many of these people also download music or pirate movies. To estrange these people, to push so hard that they have most of their customer base angry at them, is going to bring about the downfall of the RIAA.

Senator Hollings, along with saying that he's interested in technologies to destroy file-sharer's computers, also made the point that most people who download files either aren't aware of, or don't care about, copyright law. Nearly all of the people I know have at one point or another, downloading a song or a movie from the Internet, and many still do. But downloading songs and movies from the Internet has become so commonplace among people today that few people take a moment to consider the legality or morality of what they're doing. People listen to the radio, hear a song they like, and their first thought is to download it when they get a chance. For those who do think about the legality/morality, many don't care, either because they thing what they're doing is a form of protest, or they just don't care. Whatever the reason, copyright infringement is much easier with file sharing being as ubiquitous as it is, and infringement is probably more prevalent now than it's ever been. Whether it's affecting profits is another matter entirely (I doubt it is, at least, not nearly as much as is claimed), but all types of people are doing it. At it's current rate, it is going to matter whether it's right or wrong; people will end up seeing downloading as a 'right' and get upset when someone tries to take that away from them.

As a closing statement, sorry about the long wait between updates, I should be updating more frequently from now on.


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