Tales of the Sausage Factory: Feeding the RIAA Pig at the Regulatory Trough

I wish *I* could change the criminal law of the United States to make it a crime to compete with me, and jack up the punishment to huge fines and more jail time than any Enron exec will ever serve. I wish *I* could persuade a regulatory agency and Congress to make everyone else in the universe personally responsible for watching all my stuff. Oh,and then I’d make everyone give me the keys to their house so I could look inside whenever I want.

Sadly for me, *I* am not the RIAA. The introduction of HR4077, a bill which makes the FBI the RIAA’s personal police force for monitoring peer-to-peer networks and says all sorts of nasty things about peer-to-peer generally, and the FCC’s,Notice of Inquiry on whether it should mandate content controls on digital radio certainly give credence to the accusations that big money owns Washington lock, stock ‘n barrel. Interested in helping my ongoing experiment to prove if democracy still works and reminding your Senator and Representative that they really work for you? Read below . . .

That whacky RIAA! Always up to their anticompetitive regulatory hijinks. Last year it was a bill to allow the RIAA to blow up your computer if you used p-2-p. And who can forget the classic Digital Millenium Copyright Act of 1998? Oy! But one only expects the best dog-and-pony shows from a trade association for an industry worth billions and fighting to protect a cartel whose business model faces serious challenges from technological advances?

This year’s gem is HR 4077, the “Piracy Deterence and Education Act of 2004.” The good folks at Public Knowledge have called on all folks to help “mash” (is any serious fileswapper old enough to get this reference — maybe those addicted to watching alternating MASH and Buffy reruns on FX in lieu of real programming?) And mashing it needs, because this bill has a lot of problems.

Section 2 contains the Congressional findings. While just short of declaring P2P services responsible for September 11 and HIV epidemics in Africa, have very little good to say about a very valuable technology. Apparently lots of people use P2P to swap music files and child pornography, lots of innocent users pick up spyware and other nasties from using file sharing services, and all this creates an atmosphere of lawlessness in which, Congress officially finds so you know it’s true as a matter of law, “many computer users simply believe that they will not be caught or prosecuted for their conduct.”

Section 3 of the bill requires the FBI to work with copyright holders to develop ways of sharing information and propogandizing the American people about the evils of copyright infringement. Section 4 requires that any antihacking investigation units — the guys who handle things like multimillion dollar computer crimes, industrial sabatuers, and national security issues — must _also_ BY LAW include an intellectual property expert to help deal with infringement. (“An FTE from counter-terroism is a small price to pay,” one imagines an RIAA lobbyist explaining. “Sure, you could have had that agent doing something like tracking Al Qaeda funds or preventing cyberattacks designed to destabilize our information infrastructure. But if you spent the money there, who would find all the college kids downloading bootleg copies of Metallica! Get our national priorities straight, man!” )

Section 5 officially establishes the office of “Internet Education” which, like “Homeland Security” comes direct from the George Orwell Commemorative Thesaurus. The top priority of this office is, no joke: “to educate the general public concerning the value of copyrighted works and the effects of theft of such works on those that create them.” After that, if anything is left in the budget, the Office of Internet Re-Education is supposed to educate the public about possible risks of using the Internet to obtain copies of illegal work. (“This is your computer. This is your computer on Kazaa. Any questions?” )

The Act appropriates “no less than $15,000,000” to fund the RIAA propoganda/enforcement machine. Good thing the Bush Administration has developed such a huge surplus, that we can afford to subsidize the music industry cartel.

But fear not movie fans, the MPAA comes in for its goodies too! Section 8 makes it an extra special super duper crime to copy movies in theaters. And the poor copyright owners are allowed to submit a “victim impact statement” at sentencing, just as if they were real people who had suffered an actual violent crime against their persons rather than corporations suffering a run-of-the-mill economic loss.

Finally, in case anyone hadn’t gotten the message, Section 9 includes a lengthy “sense of Congress” that, while there may be some good uses of P2P, the publically accessible P2P networks todate are run by child pornographers, spammers, mother stabbers and father rapers. And besides, pay sites are much better. The Executive Branch should therefore DO SOMETHING, and P2P operators better start sucking up to the music industry NOW, or we’ll get real mean. Yeah, the next time RIAA says to you “Here bitch!” you P2P services better go “bark bark bark!” and wag your tail like you mean it.

Sections 10 and 11 up the penalties for infringement, especially for “pre-release works.” While no one is actually suggesting at this time that the death penalty is warranted for copyright infringement (at least not for a first offense), Congress could be persuaded otherwise if the RIAA comes back again.

Whew! Quite a little wish list. But then the RIAA started thinking “O.K., we’ve trashed a budding new technology with major promise for distributed computing and other valuable spin-offs in order to maintain our cartel’s business model, are there any other new technologies we can screw up?”

Welcome to the Federal Communications Commission (Official slogan: “The industry is our customer, not our responsibility.”) For many years now, the FCC has struggled to push the radio industry to move from existing analog serivces to digital services. At long last, and prodded by some competition from satellite radio, the industry has finally settled on necessary technical standards so it can launch a service designed to bring listeners CD quality music through free over-the-air broadcasts. Of course, this requires converting music into digital formats, and distributing them to listeners (for which the copyright holders already receive compensation).

“What,” screams the RIAA! “Give listeners DIGITAL music that they might save and distribute over the Internet? Don’t you know what that would do to our country??!! You might as well just send free plutonium to North Korea and Iran!” So buried in a public notice designed to look like a survey on how digital radio broadcasters can serve the general public, the FCC has issued a Notice of Inquiry asking if it needs to impose content controls similar to the broadcast flag the MPAA managed to push through on to Digital TV.

MAP (where I work) has been pushing for Open Access to the cable plant since 1999, arguing that the rules that created the narrow band Internet must be replicated in the broadband Internet. And since 1999, the FCC has been saying “gosh, how can we burden a nascent industry when we don’t even know if there is a problem?” But let the RIAA snap its fingers on a service that hasn’t even launched yet, and suddenly its all about “removing barriers to deployment by imposing prophylactic safeguards.”

So, that’s this year’s “RIAA Challenge.” The question becomes, “what are we gonna do about it.”

For starters, I hope that the massive RIAA lawsuits and the DMCA and the like have convinced the last refugee from the 1990s that phrases like “information wants to be free” and “the Internet interprets censorship as damage and routes around it” are bunk. Law matters. What happens in Washington matters. DeCSS is out there, yeah, but a lot of people have had miserable lives as a result of doing things they should be allowed to do by law. Worse, the number of people who should be innovating, who don’t want to risk huge fines or jail time at the RIAA section of Guantanamo, is huge. We call that a “chilling effect,” and the proposed rules threaten to make it even chillier.

Another good lesson is that the courts won’t save us. The courts have upheld the DMCA and prosecutions thereunder, despite the persistent belief fostered by the success of the anti-CDA legislation that the courts will save us from random acts of Congress. If HR4077 passes, it’ll become law and stay law unless repealed.

So we have two choices: we either lie down and die, perhaps begging the RIAA and the rest of the cartels for scraps, or we rediscover we are citizens. Of the 535 members of Congress, probably fewer than 50 understand HR4077 or its implications. And since it is gospel truth in Congress that memebrs of the public don’t _care_ about this stuff, why shouldn’t they accept the word of the RIAA and other “solid citizens” that P2P is bad and that this bill is necessary to combat billions of dollars worth of theft?

Answer: because you, the constituent, TELL them so. As the consumer protection movement was to the 1950s and 1960s, and the environmental movement to the 1960s and 1970s, so is the digital rights movement to this century. Fifty years ago, draining swamps, strip mining coal, and buring it in polluting factories that dumped filth into the air and water was “progress” and everyone in Congress was for it. It took dedication and hard work of concerned scientists and conservationsists and activists to educate and build a social movement. To get enough votes behind it that even those in favor of drilling in Alaska must pay lip service to the ideals fo clean air, clean water, and clean soil.

How to start? Well, we have our equivalents of the Sierra Club and USPIRG. Public Knowledge and Electronic Frontier Foundation work nonstop on these issues, as do a number of consumer organizations like Consumers Union. These organizations can help you get more involved.

What does being involved mean? Start by educating your friends and family. Explain what’s at stake is not just pirating songs and that P2P services are not the opium dens of the digital age. Next, write your Senator and Representative. Educate them, and remind them they work for you, not the RIAA. Get active in the political process and make keeping your rights an issue.

Welcome back to the fight. This time I know our side will win. Unless, of course, people shrug, decide we can’t fight the corporate powers that be, and go back to fiddling with our iPods. Then not only will we lose, we’ll deserve it.

Stay tuned . . .