net.wars: Incitement to piracy

by Wendy M Grossman | posted on 27 July 2004

And the bad intellectual property laws just keep coming ...

Wendy M Grossman

The latest offerings target peer-to-peer networks. The Protecting Intellectual Rights Against Theft and Expropriation, or PIRATE, Act, sponsored by Patrick Leahy (D-Vermont) was passed by the US Senate with little discussion in May. This bill gives the Department of Justice the fun and profit of pursuing civil cases against file-sharers so that the Recording Industry Association of American doesn't have to spend its own money or squander the good will of its members' customers by pursuing them itself. What's that? You think its members don't have any customer goodwill left after the hundreds of suits it's already filed? Cynic.

The other bill, the Inducing Infringement of Copyright, or INDUCE, Act, sponsored by Orrin Hatch (R-Utah) goes after what in the alcoholism biz are known as "enablers" and hits them in the economic parts. The idea is that it will become possible for rightsholders to sue the makers of technology that induces people to make unauthorised copies. Everyone talks about this as making the iPod illegal, but of course that's not really who Hollywood wants to get. Apple and Hollywood are buddies, as we know from all those movies where high-levels geeks use Macs. The companies whose products would be first up against the wall come the law would be folks like the filesharing companies KaZaA, Morpheus, eDonkey; the DVD region-hackers (if they haven't already been prosecuted under the EUCD or the DMCA).

Of course, you don't have to be much of historian about these things to know that we've seen this kind of thing before. When VCRs first came on the market, the movie studios sued Sony to prevent their production and sale. The eventual 1984 Supreme Court decision in that case, which paved the way for the massive home video industry we have now, took the view, albeit by a narrow margin, that the fact that the technology had significant non-infringing uses meant it should stay legal. That margin, by the way, was 5-4. One vote the other way, and we'd all still be staying in Saturday night to catch the fights.

Hatch's justification for introducing legislation to overturn Sony vs. Universal, which he has specifically said he wants the INDUCE Act to do, is that times have changed, and those nasty folks on the Internet who make all this file-sharing technology are deliberately drawing children into committing crimes. It's not legal to sell children fireworks, firearms, cigarettes, or alcohol. Why should it be legal to draw them into copyright infringement?

Well, if it saves just one child -

This week, when I read New Yorker columnist James Surowiecki's The Wisdom of Crowds I was reminded how uncertain TV ratings actually are. What TV shows are broadcast in the US all year and how much money they make are determined by a mix of meters and paper diaries that attempt to track the viewing habits of an entire nation by examining a few weeks in the watching lives of a few thousand folks. Tracking radio airplay, although that's carried out more consistently because recording artists and songwriters derive royalties from airplay, depends on sampling that's almost as limited.

You would think that both the RIAA and the Motion Picture Industry Association of America could be learning a lot about what people really like by studying what they download. To be sure, the population of file-sharers, particularly of TV shows and movies, skews differently from the general demographic: more science fiction. But it's now more than five years since Napster launched file-sharing, and despite launching a few legal download services that in general do not come close to filling the needs met by file-sharing the industry still hasn't begun to figure out why file-sharing is appealing beyond the price. These are companies with a lot of money and, presumably, access to lots of smart people. Wouldn't you think they'd be trying to figure this stuff out? Normally, when a business or industry is under threat from new technology, we consider it that business or industry's problem to figure out how to survive. Instead, their first, second, and last response is to pass laws turning file-sharing into the contemporary equivalent of dope-smoking.

But I have a better solution. It's obvious that illegal file-sharing would be absolutely no temptation if the entertainment industries didn't produce their products in the first place. Forget all those questionable arguments about copy-cat crimes and the bad, bad influence of computer games and violent movies and TV dramas; this is serious. It's clear that the real inducement to committing illegal file-sharing is not the existence of the technology - which after all does have perfectly legal uses - but the existence of the material it's illegal to copy. So let's have them stop making it. Obviously the material that's currently out on the Internet will continue to circulate, but over time eventually everybody will have a copy of everything and illegal file-sharing will just die away, leaving the Net clean and pristine, filled with only legal file-sharing.

Of course, as a consequence there will be no more new television shows or movies from the RIAA/MPAA axis of companies.

But if it saves just one child!

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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).