|
Building a Digital
Democracy
August 12, 2002
Recent
proposed legislation that attempts to aide Hollywood's digital
piracy battle has been criticized as extreme and dangerously
far reaching. Independently, these bills may be insignificant
and never see the light of day. Yet this does signal a serious
interest to amend current laws, and the possible beginning
of a high stake political battle over how much reign a studio
or record label should have in protecting its assets.
As
intellectual properties were rendered more vulnerable upon
the rapid ascent of Internet usage in the mid 1990s, existing
copyright laws were limited in the amount of protection they
ensured content owners. When The Digital Millennium Copyright
Act was enacted in 1998, this was an attempt to create an
international legal umbrella for all intellectual property
transmitted online. Yet the Act was arguably useless against
the onslaught of MP3 a year later. The record labels attempted,
unsuccessfully, to legally prevent what was from its perspective
an essentially anarchic method of audio distribution and storage
with a joint lawsuit against Diamond Multimedia, the manufacturers
of the first MP3 player. The subsequent rise of peer to peer
file exchange networks then opened up a new and rapid way
to exchange licensed content for no cost to the end user (and
no profit to content owners). The vastness of these P2P networks,
where licensed audio and (often first run) filmed content
became widely available for free download, proved that the
DMCA and other copyright laws were difficult to enforce against
this digital genie that had come out of the bottle.
The
impossibility of prosecuting every end user who exchanges
licensed content for free, and of suing all of the P2P successors
of Napster, could leave the industry chasing its tail for
years. Now it seems Hollywood is looking towards Washington
again, yet not to reform copyright laws, but laws governing
technology practices which allow content owners to have more
leverage in their efforts to bottle, or at least contain,
the genie. Earlier
this year, Senator Fritz Hollings of North Carolina proposed
The Consumer Broadband and Digital Television Promotion Act,
which would require all next generation digital devices to
have built-in copyright-protection controls. This instigated
heated debate between prominent figures in Hollywood and Silicon
Valley. The tech industry argued that the bill unfairly assigned
the responsibility of content copyright protection to hardware
manufacturers, while entertainment industry leaders claimed
that Silicon Valley was selling new hardware technology by
marketing its ability to enable content piracy. Then another
technology-focused bill was proposed at the end of last month
by Howard L. Berman of California, the ranking Democrat on
the House Judiciary subcommittee on courts, the Internet and
intellectual property. The bill would essentially grant the
content industry unprecedented authority to penetrate P2P
networks (and end users' computers), or launch DOS attacks,
if there is suspicion of acquisition of copyrighted material.
"There is no excuse or justification for this piracy,''
stated Berman, who is also the top recipient in the House
of campaign contributions from the entertainment industry
(Sen. Hollings receives a significant amount of his contributions
from those industries as well). "Theft is theft, whether
it is shoplifting a CD in a record store or illegally downloading
a song.''
These
legal proposals have been blasted as dangerously radical,
Orwellian, and unnecessary. The Hollings Bill was labeled
"policeware", while the Berman Bill quickly acquired
the nickname of the "hacking bill" by media and
critics alike, implying that entertainment companies would
be given unwarranted control of networks and privacy, and
would be unfairly exempted from civil and criminal penalties.
Fred
Von Lohman of The
Electronic Frontier Foundation, a non profit organization
which lobbies against many of the RIAA and MPAA's policies
relating to copyright protection, feels that the entertainment
industry needs to focus on how to protect its assets within
the perimeters of existing laws, instead of trying to enact
legislation that would grant a new level of technology-enabled
control. Von Lohman argues that The Hollings Bill is an effort
of the copyright industry to acquire veto power over the technology
industries, whereas The Berman Bill is "far beyond the
pale."
"The
Berman Bill exempts copyright owners from any laws, in connection
with their efforts to impair peer to peer file sharing, and
is essentially a license to be a vigilante," says Von
Lohman. "Never in the history of America has there been
a law that exempts other laws across the board. It's true
that the Berman Bill includes certain limits about how you
can't damage people's files, and cause economic loss, but
other than that, there's few restrictions. The Berman Bill
essentially says you can ignore the laws in the name of copyright
protection."
Predictably
the recording industry praised the legislation--RIAA chief
Hilary Rosen called the Berman bill an "innovative approach
to combating the serious problem of Internet piracy."
The response from the film studios was more lukewarm, with
the MPAA commending Berman's efforts within a cautionary statement
that there were aspects of the bill it believed needed to
be changed.
Whatever happens with these two individual proposed bills,
it does signify an urgent restlessness within the entertainment
industry, via its political allies, to obtain more legal leverage
to execute copyright protection online. Despite disagreements
about the particulars of these, or any future, proposed legislation,
it is a likely conclusion that the entertainment industry
will seriously push for an expansion of existing legal limitations.
"Without
a doubt, this (Berman) legislation is necessary," argues
Kevin Moylan of Vidius,
a network security company which has been assisting the RIAA
and the MPAA with its efforts to track illegal file sharing
over decentralized networks. "There are no current provisions
within existing laws that give intellectual property owners
the comfort level they seek to pursue flagrant offenders of
piracy via peer-to-peer file sharing networks. It puts the
law firmly on the side of the content owner and allows them
to use technical measures to counter the capabilities of peer-to-peer
file sharing networks."
If the Berman and/or Hollings Bill don't pass, this restlessness
for law reform will not be squelched. Von Lohman says that
the buzz among lobbyists in Washington is to prepare for what
is expected to be, "a very big fight along this Hollywood
versus Silicon Valley axis." If the Hollings Bill is
not enacted he says, then it is expected that there will be
additional bills proposed that pertain to individual technologies
(instead of a blanket laws governing all hardware). Ultimately
he admits, it's likely that law reform will take place, and
that it will relate to technology.
"I
think the real answer in terms of enforcement, lies in technology,"
says Chaz
Austin, a consultant who advises on strategic business
development in integrated media, e-commerce and online marketing.
"There has to be something to stop all this piracy. That's
the problem with digital technology. The studios and labels
are in a tough spot. They've been losing so much money, and
there are no laws, but at least this is a start. You can't
give people the license to steal under the guise of sharing
files."
by
Wendy Hall
Larta Staff Writer
Return
to this week's issue of LA VOX >
|
