It’s playoff time again, so I’ll be watching a lot of baseball
on TV in the next few weeks. I’ll take in a lot of ads but I’ll
also miss quite a few. I will, for example, take advantage of the
commercial breaks to channel surf, stretch my legs, or grab
something from the fridge. Does this make me a thief? Jamie
Kellner, president and CEO of the WB Network, thinks so. May I go
to the bathroom, Mr. Kellner? “I guess there’s a certain amount of
tolerance for going to the bathroom,” Kellner told
Cableworld last year. Phew!
According to Kellner, “Your contract with the network when you get
the show is, You’re going to watch the spots.” I don’t recall
signing any such contract. Do you? Perhaps the entertainment
industry managed to slip it into the Digital Millennium Copyright
Act (DMCA), but I’m certain I would have heard about this.
The other week, a Spectator columnist raised the
possibility that the 60 million Americans who have downloaded music
from the Internet are moral imbeciles. Which part of “thief” don’t
you understand? he
asked.
Well, over the last 30 years I have purchased tens of thousands
of dollars worth of CDs and DVDs. I always assumed that buying
these products made me the owner of them. According to Jack
Valenti, president of the Motion Picture Association of America, I
was mistaken. During a Washington Post online chat about
the legality of consumers (like me) who make copies of CDs and DVDs
for their personal use, he replied, “If you have a CD or a DVD in
digital form, then you already have your personal copy.” So now
Jack Valenti is calling me a thief too.
Who else thinks I’m a thief? EMI, the British record label. I’m
a fan of Radiohead, so I bought their new album, ironically titled
Hail to the Thief, the day it was released. This is a
“copy protected” disc, which makes it impossible to “rip” the
tracks and make them available for others to download via
peer-to-peer networks. All I wanted to do was play the disc on my
computer stereo, but it wouldn’t play with Real Player or Windows
Media Player, and then the music-player software on the disc
crashed my computer. I finally succeeded in getting it to play,
only to find that reproduction was an atrocious 48 kilobytes per
second (normal discs are reproduced at 1,411 kilobytes per second)
— the better I suppose, to prevent me from stealing the music for
my own personal use.
If the record industry wants to know why it is so hated, it could
ask me. I am one of its best customers, so why does it call me a
thief?
Years ago I joked that soon children wouldn’t be able to scrawl
cartoons on walls without Disney lawyers showing up with
cease-and-desist orders. Things have not come to that pretty pass
yet, but we’re almost there. How long before the publishing
industry alleges that those who lend their books to friends are
guilty of theft too?
According to a September CBS-New York Times poll, only 37
percent of Americans believe Internet file sharing is “never
acceptable.” Some have cited this as evidence of moral rot, but
could it not, perhaps, be a perfectly rational reaction to the
positions taken by Jamie Kellner, Jack Valenti, and EMI? If the
bathroom break is theft, then we are all thieves, and one might as
well be hung for a sheep as for a goat.
When a majority of Americans disagrees that Internet file sharing
is immoral, the recording industry faces a catastrophic crisis of
confidence. So how is the Recording Industry Association of America
(RIAA) attempting to win back hearts and minds? With a slender
carrot and a very big stick. The carrot is an offer of amnesty to
downloaders who sign affidavits swearing they won’t do it again.
The stick is lawsuits against individual downloaders that, if
successful, would bankrupt their great great grandchildren — we’re
talking millions of dollars; up to $150,000 per song.
The DMCA gives the RIAA authority to compel Internet Service
Providers to divulge the names, addresses and telephone numbers of
suspected downloaders. As a story on
internetnews.com explains, “Unlike usual subpoenas, DMCA subpoenas
can be filed prior to any charges of infringement, are not subject
to a review by a judge, and requires no notice to, or opportunity
to be heard by, the alleged infringer.”
The legal term for this is ex parte, and traditionally
such abuses of constitutional rights have been permitted only when
there is a clear and present danger to human life. Internet
provider Verizon and others have challenged the constitutionality
of the subpoenas in court, while Republican Senator Sam Brownback
of Kansas has introduced legislation to rescind this provision of
the DMCA. So far, the RIAA has issued more than a thousand
subpoenas, sued 261 individuals, and settled with 64. Some of those
sued include a grandfather whose grandchildren allegedly downloaded
songs during visits and 12-year-old girl who lives with her single
mother in public housing. She settled for $2,000.
To say that these lawsuits have resulted in a catastrophic
public-relations hit for the RIAA would be an understatement, but
the organization presses ahead regardless, promising hundreds of
thousands of additional suits. The PR hit the RIAA will suffer when
some parent of a downloader loses his house or is sent to prison
can only be imagined.
The RIAA should reconsider. Fast. The cassette recorder didn’t kill
the music industry, and the video recorder didn’t kill the movie
industry. Rather, they became new revenue streams. File sharing
could too. Napster, in its death throes, offered the record
industry a deal — join with us, and we’ll share the profits.
Bertelsmann was the only major smart enough to sign on.
The record industry killed Napster, but file sharing didn’t die
— it became further distributed and harder to control. There is no
evidence the RIAA’s strong-arm tactics are scaring downloaders
straight. When the entertainment industry went digital, it made not
only the old technology obsolete but also the old copyright law.
The RIAA must learn how to live with this or perish.
