Between The RIAA And A Hard Place.
By Andrew Harden
In the case of Elektra v. Barker, attorneys for the Recording Industry Association of America have made the argument that simply having a "Shared" folder on your computer can be considered grounds for infringement and, by extension, prosecution. These RIAA lawsuits have long been criticized, and the arguments which the RIAA uses to support them have been as well. But this particular point is, at best, a Slippery Slope.
The problem with this is that nearly every PC in use right now, running a modern operating system like, for example, Microsoft Windows XP, has a "Shared" folder on it. In fact, it might even have several. But you know who created these folders? Not the people using them, not some fiendish Internet pirates (sans eye patch and cool boat), but rather, Microsoft itself. This folder, most likely called "Shared Documents" and perhaps its counterparts "Shared Pictures" and "Shared Music" were created by Microsoft's Windows installer program. They were placed by default. Is there an option during the installation process to stop this? No. Is there a way to stop the installer? Well yes, but that would involve the reverse engineering of proprietary code, which might involve copyright violation by itself.
In Apple's OS X (my OS of choice), we have the same thing. I have a folder called, simply, "Shared." Again, written to my computer by the installation program.
What are these folders for, you ask? Well, you see, modern operating systems are becoming more modular for security reasons. Each user should have their own account. In OS X, this means that each user has a "Home" folder, which contains all of that user’s applications, documents, pictures, movies, etc. In Windows, that means each users has their own "My Documents" and other "My..." folders. The goal is to only give access to certain things to people who have the right "credentials," which for computers, means the right password. Just like your bank account.
So if I was subpoenaed right now, the RIAA would find a "Shared" folder. Not only that, but they'd also find that my computer features an easy way to connect to other computers, via the Internet or through a Local Area Network (LAN). In fact, I'm connected to another computer right now, the HP sitting in my living room.
Obviously, I must be a pirate. A criminal, out to infringe on everyone's copyrights for the sheer "stick it to the man," "fight the power" thrill of it all. But really that's not it. I do it to share Word documents between the two computers. Word documents that I created and that I own the copyright on by virtue of the fact that I created them. I do it because I use a Mac, but my school is predominantly Windows, and I need to make sure stuff I create on my Mac works the same way on a Windows box.
But other people do it to check the kids’ homework, or to have access to the photos from last year’s trip to Florida. In fact, these are two scenarios mentioned explicitly in Microsoft's Help files regarding, you guessed it, Sharing.
There's another reason people might use this feature. Redundancy. Redundancy is a very good thing in the computer world. Truth is, computers aren't bullet proof. They crash, they get viruses, and they somehow just do their own thing sometimes. Stuff gets lost. People get upset. But if I have two copies of something, say, a report I did in Microsoft Word, then I don't have to worry as much about losing it because guess what? I've got another copy somewhere else.
This issue of redundancy, or as us computer-types like to call it, backup, is an important one, especially with regards to the RIAA and its legal campaign. The argument has been made that copying a file is infringement. But when I use my iPod for example, I'm making a copy. The songs I have in my collection don't move from my hard drive onto the one in my iPod, they are copied there. That means I paid once, but I've got two copies of it. TiVo does the same thing, it copies shows and holds them (even if it's only for a limited time). This is all digital, 1's and 0's sitting on a magnetic piece of film, or engraved into microscopic hills and valleys on the surface of a CD or DVD. But even in the physical world, it's good to have copies. What happens if you lose your favorite CD? What happens if the kids, in the process of being kids, destroy their favorite Disney flick?
For us, the consumers, the obvious answer would be to make a copy, so in these situations, we don't have to pay more money. But that is a bad thing for the RIAA. Because that means they're getting less money from you, and money is what they’re really after. In short, they seek to make backup, or "home taping," or "memorializing" or whatever you want to call it, illegal. Because after all, if you want any content, you should pay for it every single time you want it.
As I said earlier, this is a slippery slope. If we stand on the precipice and look just a few hundred feet below, we'll see something called the Intellectual Property Protection Act of 2006. IPPA would increase the penalties for infringement, and make attempting infringement illegal. Under IPPA, "...nobody may 'make, import, export, obtain control of, or possess such anti-circumvention tools if they may be redistributed to someone else.'" Here's the problem with a law like this: it applies to entirely too much stuff. Stand up and look around, and raise your hand if you see a
- Fax Machine
- TiVo or DVR
- Audio recorder
All of these things are “tools” that can be used to "circumvent" anti-piracy measures. In fact, I don't even need any of these at all. If I watch a movie and then tell someone what I just saw I have, in effect, circumvented its protection measures. I've broken the law. If I turn my stereo up just a little too high, so the neighbors hear it, then they're listening to that CD for free. Circumvention.
This is the problem with the RIAA campaign. It's really not about protecting artists. Artists are doing just fine thank you very much. In fact, thanks to the Internet artists are finding new ways to do even better, and some artists which wouldn't even be doing anything without it finally can reach an audience. How is this a bad thing?
This campaign isn't about stopping piracy; it's about control. Instead of adapting to new technology, which is usually what happens, instead of finding a new business model, which is key to having a successful business, the RIAA is out to litigate the market into submission. Buy they're product, give them your money, or you'll get sued, and you'll have to give them more money. Afterwards, continue to buy their product and give them money.
In the entire legal history of copyright, such a situation has never existed. Sure, there have been people who fought new technology, but the tech always won out. It won because it makes things easier. Sometimes that sucks for certain folk but you know what, that's life. But now, for the first time, it's entirely possible that the opposite will happen. That profits and lobbying will truly defeat innovation by pushing it to the black market. Napster wasn't about stealing, it was about sharing with the world and showing people things they never could've seen (well, heard) any other way. Putting a song online isn't a way of saying "Screw those RIAA guys," it's a way for me to tell the world what I think is cool. That's the heart of the Internet, me connecting with the world. This is why Microsoft and Apple give me Shared folders, because connecting with people is good in a warm and fuzzy kind of way.
The real pirates? The ones pressing 500 CDs a month and selling them? They're still going strong. The ones who just don't want to pay for music? They're still not paying, because as long as it's out in the world, there's a way to get it. But the rest of us? We get the burden. We have to sit through annoying ads before our DVD starts playing, we get the lectures that "sharing is stealing, and stealing is wrong." The ones who obey the laws are the ones who ultimately get punished, how decidedly un-American. Even people who don't own computers get sued. MIT students are being told to drop out of school, and even the dead get served with legal papers. These aren't solutions; they're more problems.
Whenever a new technology has disrupted copyright, we’ve changed copyright. Copyright isn’t an ethical proposition; it’s a utilitarian one. There’s nothing moral about paying a composer tuppence for the piano-roll rights, there’s nothing immoral about not paying Hollywood for the right to videotape a movie off your TV. They’re just the best way of balancing out so that people’s physical property rights in their VCRs and phonographs are respected and so that creators get enough of a dangling carrot to go on making shows and music and books and paintings.
Technology that disrupts copyright does so because it simplifies and cheapens creation, reproduction and distribution. The existing copyright businesses exploit inefficiencies in the old production, reproduction and distribution system, and they’ll be weakened by the new technology. But new technology always gives us more art with a wider reach: that’s what tech is for.
Tech gives us bigger pies that more artists can get a bite out of. That’s been tacitly acknowledged at every stage of the copyfight since the piano roll. When copyright and technology collide, it’s copyright that changes.
Which means that today’s copyright – the thing that DRM nominally props up – didn’t come down off the mountain on two stone tablets. It was created in living memory to accommodate the technical reality created by the inventors of the previous generation. To abandon invention now robs tomorrow’s artists of the new businesses and new reach and new audiences that the Internet and the PC can give them
-Cory Doctorow, Speech to Microsoft Research Group..
Elektra v. Barker won’t destroy the Internet, it’s too big and at this point, too necessary to be litigated out of existence. But it will set a dangerous precedent, where innovation becomes second fiddle to profit margins and revenue streams. It will signal the end of adaptability in business. Businesses won’t need to change with the times, they’ll be able to change the times themselves. Instead of finding a new model, or making better product, you can just rent a congressperson get a bill passed, and change the rules to suit your needs. Instead of changing your strategy to win the game, you can now just change the game. “Copyright” will become the most feared word in America, the way “Communism” once was. And in the end, we as consumers, customers, fans, and even creators, won’t have any rights. That is a frightening proposition.
To learn more about IPPA, and to find out what you can do, visit
The Electronic Frontier Foundation
The Information Policy Action Committee
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs