you can’t stop piracy
by Molly Wood
Ok, nerds. It’s time to mount up. We’re going to war. We’re living in what is increasingly becoming a copyright and intellectual property police state, and it’s time we self-organize and do something about it. Here’s the deal.
Recently, the office of the Intellectual Property Enforcement Coordinator (a new post under the Obama administration) asked for comments as it puts together its “Joint Strategic Plan” for intellectual property enforcement. Yes, you the public are also invited to comment, and that’s what I’m hoping you’ll do after you read this. Or during. Or both.
See, the RIAA and the MPAA submitted a joint commentary that the EFF refers to as a “wish list” and, most accurately, a dystopian view of a future in which most government and police resources go toward stopping intellectual property theft and illegal downloading.
This Gizmodo post describing the comments reads like something only hyper-overreactive, FUD-spreading free-stuff-loving Internet types would come up with as a paranoid nightmare: the RIAA and MPAA want spyware installed on your computers that would automatically delete “infringing content.” They want network-monitoring software that would halt an illegal download in its tracks. They want to deputize the FBI, Homeland Security, and border crossing guards to examine and seize MP3 players and laptops (something so egregious it even came out of the wildly over-the-top ACTA agreement). Crazy talk, I know.
But read the comments for yourself. It’s all in there. And there’s more: the MPAA wants blockbuster movie releases to be treated with the same kinds of security measures and law-enforcement mobilization that might occur when, say, a head of state comes to visit.
The comments call for bandwidth throttling and shaping, network filtering and deep-packet inspection (especially on college campuses), and accelerated federal investigations into the theft of “pre-release music and movies…as this is one of the most damaging forms of online copyright theft and requires immediate attention and swift action.” Dive in anywhere. It’s a minefield of overreaching, unbelievably punitive, alarmist language.
And this is just insult to injury, considering the other things the music and movie industry have either asked for or forced on us over the years, as they become increasingly paranoid about digital piracy and increasingly panicked about their outmoded, pre-Internet business plans. And let’s not forget their historic unwillingness to make any sort of actual business changes and instead try to rely on government to keep them in business. Let’s review.
Thanks to the DMCA, it is illegal for you to make a digital copy of a DVD that you have actually purchased. That’s because, under the law, you are not allowed to break the technological DRM that keeps you from ripping the DVD. It’s also because you have no explicit right to fair use with the content or devices you own. The RIAA has spent years flirting with ways to stop you from ripping CDs, hinting that they don’t think making digital copies of your own CDs is, in fact, fair use. Several labels briefly issued widely despised copy-protected CDs, until consumer outcry put a stop to it because the crippled CDs frequently wouldn’t even play. And of course, when that failed, they resorted to dirty tricks like embedding rootkits in CDs that would essentially break your computer when you ripped one.
When, after years of fighting the very concept of digital distribution tooth and nail, the labels finally found themselves willing to dip a toe, they wrapped everything in such restrictive DRM that consumers found themselves locked in to devices with hundreds or thousands of dollars worth of music that would only play on one platform. And even as music DRM gradually faded, we learned to live with artificial technological restrictions, like the idea that you couldn’t transfer your own, legally purchased music from one computer to another; that you would gradually lose the ability to mount your music player as a drive and simply transfer music to and from it; that you wouldn’t be able to sync a device with more than one computer, just in case you were trying to offload music to a friend.
And when all of that failed to stop the flood of business-destroying pirating (never mind that the industry took 10 years to even enter into the business of digital distribution, a move that frankly could have headed off all this agony from the outset), the RIAA resorted to a campaign of legal terror.
It fired off indiscriminate lawsuits, often without anything even remotely resembling proof, and usedpatently ridiculous math to assert the “value” of pirated songs and the amount it was owed. And our legal system, terrified by the sight of this powerful industry lying in smoking ruins at the hands of the pirating hordes (never mind said industry’s complete refusal to adapt to changing market conditions or come up with a technologically appropriate solution when the “problem” of downloading reared its head more than a decade ago), let it happen.
The movie industry, on the other hand, decided to start from a different position: nuclear. And it’s never backed down. No DVD ripping. Period. Technological barriers that, if breached, will land you in jail. They forced “zero tolerance” policies on movie theaters so that teenagers taking 20-second movie clips to show their little brothers end up arrested and facing a year in prison. The industry sued RealNetworks straight out of existence for trying to bring DVD ripping to the masses.
Plus, the MPAA has been front and center on the lobbying lines from the get-go, has steadfastly refused to engage in widespread digital distribution, and even as it creeps into the idea of streaming video content, it only gets there by extracting consumer-unfriendly delays in actual DVD rentals. Its approach? Keep it on the disc at all costs and beat into submission anyone who suggests otherwise–no matter how archaic the disc and how digital the consumer.
And all the while, the entertainment industry has been pushing copyright protection laws that got steadily stricter, and whose unintended consequences now impact everything from coffee-house performances to libraries to security research. Its rhetoric and PR attempts have gotten so wildly distorted that the RIAA’s CEO recently tried to associate China’s hacks against Google with Google’s own attitudes toward IP, and claimed that file-sharers were actually harming the Haiti relief effort. At this point, the Internet is littered with writings and stories about how the misguided attempts to lock down every single idea, piece of content, and emerging technology are harming individuals, wasting time, costing us money, and just plain pissing us off.
In short, these industries have done everything they possibly can to stop the forward march of technology, and, failing that, they’re now turning to the government and the police to enforce their business plans for them. And that, as my colleague Tom Merritt points out in today’s Buzz Out Loud podcast, is now threatening to spill over into our personal safety–the RIAA and MPAA’s joint comments to the IPEC office essentially ask border crossing guards to prioritize pirated music or movies alongside bombs, and would pull federal resources out of serious criminal cases and focus them on illegally downloaded movies.
And some of that might make sense if the industry could back up the claims it’s made for all these years that the economy is suffering billions of dollars in lost jobs and sales due to piracy. Buthere’s the thing. This week, also in response to IPEC office requests, the General Accounting Office issued a report saying that most estimates about the impact of piracy AND counterfeiting on the economy are either totally made up or are simply wild assumptions.
For example, the FBI said in 2002 that U.S. businesses lose $250 billion to counterfeiting. When asked by the GAO, according to the report, the FBI could not provide any proof, methodology, or source data for that number. The Business Software Alliance said it lost $9 billion to piracy in 2008. The GAO said there’s simply no evidence to back that up. The MPAA, which has already been busted for wildly exaggerating the number of illegal downloads happening on college campuses, gets dinged for making convenient assumptions that make piracy look worse than it is, but again, have little quantifiable basis in fact.
We are being bullied into a technological police state because these industries failed to see the technological writing on the wall, to innovate appropriately, or to follow the most fundamental rule of business: give the consumers what they want. And they have used bogus numbers, scare tactics, and the worst kind of legal intimidation to get it done.
And yet our own government is still leading the charge on negotiating the Anti-Counterfeiting Trade Agreement in secret, saying its contents are national security-level secrets. And we know that those contents happen to include, say, just the kind of three-strikes ISP enforcement that’s already been stricken from previous global agreements and swatted down by the EU, and the type of warrantless search and seizure of your personal property the industry is clearly so excited to have happening at borders.
Now, I sincerely hope that Victorial Espinel, the U.S. Intellectual Property Enforcement Coordinator, is taking into account the GAO report right alongside the crazy house of horrors that is the entertainment industry’s wish list. But the fact is, the MPAA and the RIAA are well-heeled, well-organized machines that have made it their business to drive piracy and intellectual property theft (no matter how overblown their interpretation of the threat) into the ground at all costs. It’s time we lovers of a free and open Internet (and, what the hell, society) became just as vocal and determined.
Please, write to Victoria at firstname.lastname@example.org. Tell her no intellectual property legislation is complete without explicitly defined legal exceptions for personal fair use of your property, including ripping CDs and DVDs, limited personal sharing of music, movies, and other digital property, and protections for device and network innovations. Tell her ISPs aren’t cops, and we’d rather have our cops solving murders and stopping terrorist attacks than checking MP3s at the borders and securing movie theaters on release day.
And most of all, tell her the entertainment industry needs to prove that it’s after more than a bailout, that its claims of monstrous economic damage are based on actual fact, and that it hasn’t just plain failed to get its digital act together. The Internet is not a giant, flag-waving pirate ship, and it’s about damned time this industry stopped treating it like one.