Looking At P2P

Haven’t done this in a while, mostly because nothing terribly dramatic has been happening.

Artists’ Rights and Theft Prevention Act

I mentioned this a while back, and now I’ve gotten to read the text of the proposed law.

Before talking about it, I think it would be educational to get the perspective of what your average Congressperson is likely to be, and why. The preamble to the bill does this rather well:

Congress finds the following:

(1) Intellectual property, among other things, represents the ideas, imagination and creativity needed to innovate long before a product is brought to market. As such, it is fundamental to the continued economic, social, and cultural development of society and deserves the protection of our laws.

(2) Music, film, software, and all forms of intellectual property represent one of the strongest and most significant sectors of the United States economy, as demonstrated by the fact that these industries–

(A) accounted for more than 5 percent of the United States Gross Domestic Product (GDP), or $535,100,000,000 in 2001;

(B) employ almost 6 percent of all United States employment; and

(C) led all major industry sectors in foreign sales and exports in 2001.

(3) In an attempt to combat the growing use of the Internet and technology for the illegal reproduction and distribution of copyrighted materials, Congress unanimously passed and President Clinton signed the `No Electronic Theft’ or `NET’ Act in 1997. The NET Act is designed to strengthen copyright and trademark laws and to permit the prosecution of individuals in cases involving large-scale illegal reproduction or distribution of copyrighted works where the infringers act willfully.

(4) Under the NET Act’s requirement of economic harm, investigations by law enforcement of copyright infringements are particularly resource intensive and pose significant challenges. In the interest of broader deterrence and in order to facilitate the prosecution of particularly egregious copyright violations, it is important to recognize that a significant level of economic harm can be reached by the distribution of so-called `prerelease’ commercial works.

(5) The use of camcorders and other audiovisual recording devices in movie theaters to make illegal copies of films is posing a serious threat to the motion picture industry. According to a recent industry study, 92.4 percent of the first copies of movies available for download on the Internet originate from camcorders.

(6) Given the difficulty of enforcement, online theft of music, film, software, and all forms of intellectual property continues to rise. The negative effects on this large segment of the United States economy are significant, as exemplified by almost a 31 percent drop in sales for the music industry from mid-year 2000 to mid-year 2003, which even critics of the industry acknowledge to be heavily influenced by the rampant distribution of pirated music.

(7) Federal legislation is necessary and warranted to combat the most egregious forms of online theft of intellectual property and its significant, negative economic impact on the United States economy because–

(A) Article 1, section 8 of the Constitution confers upon Congress the power `[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,’ as well as the power `[t]o regulate Commerce with foreign nations, and among the several States.’;

(B) the importance of the music, film, software and other intellectual property-based industries to the overall health of the United States economy is well documented and significant; and

(C) theft and distribution of intellectual property across State and international lines occurs on a regular basis.

This is where they’re coming from. The average Congressperson believes that intellectual property is vital to the health of America, and it needs to be defended. This is why they won’t leave you alone, and this is why the typical P2Per arguments won’t cut it with the audience that matters.

And if you write them, and ignore their points, well, they’ll just ignore yours. In all honesty, the typical hardcore P2Per arguments not only won’t persuade the average Congressperson, it will push them in the opposite direction.

What Does This Bill Do?

Primarily, this bill basically give the Department of Justice five million dollars a year extra to track down and prosecute P2Pers “sharing” movies/music, etc. that haven’t been released yet, and only those.

The bill also makes it a Federal felony to record movies with a video recorder.

We’re talking FBI; we’re talking criminal acts, we’re talking a felony, we’re talking jail time.

What do you have to do to get yourself in jail? Have a prereleased movie/song(s) in your shared folder, and have somebody from the FBI find it there. That’s all.

“But I only finished downloading it five minutes ago!” Doesn’t matter.

Playing dumb won’t work, either. If you knew or should have known that this was a movie or music meant to be released to the public, you’re liable. This means anybody capable of operating a computer over the age of five.

It’s important to note that because this bill is so focused, it will make it much, much easier to find and prosecute people. All an FBI person would have to do is get a list of upcoming albums/movies and have a bunch of computers simply search for them. Every once in a while, the FBI person would check, and if any suckers show up, just download the file, look up the ISP, get a warrant to order the ISP to disclose who the offenders are, get the names and addresses, then send somebody to bust them.

The way this law is written, prosecution will be easy: these would be slam-dunk cases.

This bill stands a good chance of being eventually passed, precisely because of its limited focus. We will keep a very close eye on this bill. If it passes, you would be a fool to have pre-released material available on your machine; the odds on getting caught will be much greater than getting picked by the RIAA.

If this passes, you have to ask yourself, “Am I willing to do jail time for this? Am I willing to take even a chance at jail time for this?” The sane answer is “No.” If your answer is “they won’t catch me,” well, that’s what most people behind bars thought, too.

Making An Antitrust Mountain Out Of A Molehill

I got a note asking this question a few days ago:

Are you going to discuss the RIAA and MPAA with their application
to be exempt and immune to anti-trust laws?

Well, I looked up the bill, and it does no such thing.

Under current law, owners of musical copyright have the right to have
common agents (i.e. RIAA and MPAA) to negotiate a very specific type
of royalty agreements with them. If Korn wanted to do a Black
Sabbath song, Black Sabbath does not have the right to say no. Korn
is entitled to a compulsory license to record the BS song, but in
return, they must pay a royalty. Current law says that owners of
copyright can designate somebody like the RIAA to negotiate all this
for them, and this change in the bill would just extend the ability
to designate the RIAA to do that to new forms of media other than those previously listed by the law.

That’s all. There’s no attempt to get a new sweeping exemption from antitrust laws. It’s just a minor update.

There’s a few other minor technical corrections like that in the bill. What would have more impact are two provisions
of the bill that weren’t mentioned at all. One would give the Department of Justice $5,000,000 extra a year to go after cybertheft, and
the other requires the Department of Justice to tell Congress just how much
they’re doing to prosecute such crimes. That would actually have some real impact.

Ed

The (Legal) Hits Just Keep On Coming

The RIAA continues to sue more people. The legal wheels turn slowly compared to Internet time, so there haven’t been anything like court decisions or even trials beginning on the earlier cases yet.

In the latest wave, there’s been talk about someone without a computer getting notified by the RIAA. Unfortunately, many who reported that part didn’t give you the whole story. If you read the original story, it casts a much different light on the story:

“Brenot and her husband said their son-in-law briefly added Internet service to their cable television account while living with the couple because Comcast Cable Communications Inc. said it would add a surcharge to send separate bills to the same mailing address.”

So these folks had a broadband account in their name and address. There was a computer hooked up to that broadband account. No doubt the son-in-law did the evil deeds, but how is the ISP supposed to know about a son-in-law who isn’t on the account? This is simply the equivalent of a parent getting a notice due to his child’s P2P use. The RIAA asked the ISP, and the ISP gave them the owner of the broadband account.

Rather ruins the story and the spin when you know the whole truth, doesn’t it?

Another significant legal item involves the suit by SBC Communications to quash subpoenas filed by RIAA to get the identity of some of its customers. The case will be heard in Washington D.C. rather than San Francisco. The courts there have already ruled against Verizon in a similiar case.

While SBC no doubt will present new arguments, and will no doubt try to use the RIAA’s track record to argue that the quicky subpoena authorized by the DMCA is so bad that it violates due process, it is unlikely that the court will change its mind.

Ed

Something else not being reported which is far more significant is not what has happened, but what has NOT happened as a result of the suits. There has been no consumer backlash as a result of the lawsuits, at least as measured by album sales. If anything, album sales have improved slightly since the suits began (though on average, they’re still running about 7% below last year’s levels).

Go buy a copy of Billboard (this info is only available in their print edition) and see for yourselves.

What has happened to P2P use? That depends on what measuring groups you listen to. Nielsen/NetRatings (which measures use based on how often its user population loads Kazaa) showed Kazaa use dropping 40% between late June and late September, with further drops since.

Similiar results were reported by the NPD group in a number of reports, a significant dropoff (a bit more than 25%) once the suits began, then a leveling out. They report based on user surveys.

On the other hand, Big Champagne, which measures actual connections, confirms a dropoff during the summer, but a resurgence once school began in the U.S. in the fall.

Unfortunately, the head of Big Champagne keeps spinning his statistics all sorts of different ways, as you’ll see if you read the various news stories quoting him on the subject.

It also should be pointed out that the company’s whole existence is based on tracking P2P use, so they’re hardly inclined to report bad news.

If you piece them together, the Big Champagne story seems to be a big dropoff in the summer, and a big resurgence in the fall (though not quite yet to all-time levels).

My suspicion is the Nielsen/NPD numbers underrepresent boarding college students (who can take advantage of university broadband connections, and probably aren’t included/would fill out surveys), while Big Champagne, if anything, overrepresents them.

Probably the safest conclusion to draw is that the RIAA lawsuits have had the effect of scaring off many casual downloaders, but the hardcore users remain, and perhaps have gotten even more active.

College students are a big part of that hardcore, and some interesting things have been happening on campus.

Ed

If the RIAA lawsuits haven’t scared college students, it sure has scared the college administrators. After all, they’re providing the bandwidth and effectively act as ISPs.

Even if that weren’t true, universities have often found that legitimate use was being crowded out by P2P activity.

So they’ve been taking a number of different approaches to the problem.

MIT: Outsmarted

MIT attracts a lot of very smart people. A few students used some of those brains and figured they could offer a free music service without paying a lot of royalties by using the analog channels of the university’s cable TV system.

Provided that they could get the proper rights to the music, this was perfectly legal (though limited, analog cable systems can only normally handle a fairly limited number of channels, perhaps a hundred).

Unfortunately, the folks at MIT weren’t quite 100% on the legal end. They bought $25,000 on music from a company that said it had all the necessary rights to the music. Turns out that wasn’t quite so. MIT suspended the service, and so it remains.

University of Florida: ICARUS Won’t Get Burned; It Burns You

We’ve spoken about this before, but what the University of Florida decided to do was to basically ban P2P use on their network, and implemented a system called ICARUS to detect and block such use. Bang your head against the wall three times, and you are subject to disciplinary hearings

It works for them. A lot of other colleges have expressed interest in the system.

Penn State: Promoting Legality and Ethics

Penn State decided to try the approach of giving students a reasonable legal alternative to file-sharing. So they essentially signed up the student body to Napster 2.0 (apparently they got a great deal, since they didn’t even have to increase fees to do so).

The university’s president, Graham Spencer had some very worthy comments about this:

The Internet has not only changed the way we educate, but it also appears to have shifted America’s thinking about the moral code surrounding what has come to be called “intellectual property.” Being able to download music and movies without paying for them is seen as just another perk of technology, because “things on the net are free,” aren’t they?

But music piracy is nothing more than online shoplifting — the willful taking of someone else’s creative work. In short, it’s stealing, and I believe there are a number of reasons that educational institutions should help find a solution to this copyright infringement, the most compelling being that piracy is wrong. If we allow students to leave college without comprehending this message, we are failing a generation in more ways than one.

Ethical standards should not be considered simply a matter of individual choice. What we communicate to the next generation will largely determine if we will live in a just society. Honesty, integrity, respect for individual achievement and working for the common good are all values that students should have when they leave college.

Despite our education efforts related to piracy, and the technical interventions that limit the amount of downloading a student can perform, many students still partake in illegal downloads. Turning a blind eye to the illegal uses of the technology does not seem to be a suitable option, particularly as students put themselves in jeopardy with the law.

That is why Penn State has just kicked off a new initiative to provide students with a legal way to download music files, becoming the first higher education institution to launch a comprehensive alternative solution.

It is my hope that other campus-based programs like the one just launched at Penn State will be adopted at other colleges and universities across the nation, raising awareness of copyright issues, teaching our students about integrity, and proving that the higher education community still values ethical behavior on its campuses.

He’s absolutely right.

So what has Penn State done?

Students can listen to all the music they want for free. They can download the music and keep in on up to three computers at a time for free for as long as they are students or otherwise remain Napster 2.0.

Students only pay extra ($0.99 a song) if they burn a song onto a CD.

Over the next few years, it’s likely that you’ll see colleges trying either/or/and the Penn State carrot and the University of Florida stick.

If all you’re concerned about is having access to music and being able to try before you buy, the Penn State solution is ideal, legal, and certainly a far better deal for college students than could have been imagined even a year ago.

You would never guess that from some of the commentary on this deal.

Why?

Ed

Who Is Winning The War?

If you had to say who is ahead of the game right now, an impartial observer would have to give the edge to the RIAA. Their activities so far have increased general public awareness of the issue and discouraged at least some filesharing without so far causing a tangible consumer backlash. In the background, they’re getting their legal positions slowly but surely firmed up in both the United States and the European Union, and providing what at least looks to be reasonable legal alternatives.

The only negative for the RIAA so far has been some initial negative publicity in the mainstream media, and getting a small but loud minority of P2Pers very, very, very mad.

However, nothing even remotely decisive has occurred yet. These are just initial skirmishes. Saying that the RIAA is “winning” the war at this point would be like saying the U.S. Confederate South was “winning” the Civil War after the Battle of Bull Run (aka Manassas).

But Jesus Shared!

On a lighter note, while searching for reference material to write this article, I came across this forum thread from a website called “Christian Forums” on Kazaa.

If you think this thread is simply a bunch of denunciations of Satanic file-sharing, think again. This desire for free music is ingrained indeed, at least in some minds.

After reading the first few posts, I got the uncontrollable urge to go through it just to see if somebody would say something along the lines that Jesus would approve of file-sharing.

I was not disappointed. Go to the end of this page in the thread, and you’ll find this:

I have a biblical example of “file sharing” That Jesus Himself did when he fed the whole multitude off of the few fish and couple of loaves of bread the little boy had. LOL! The boy gave it to Jesus and Jesus “shared” it amongst the whole crowd. The croud didn’t pay for it and niether did Jesus. LOL! Did the original shop keeper who sold the fish and bread to the boy have the right to insist that the crowd pay for the bread and fish? After all, he sold the boy enough for one person and the whole multitude ate his bread and fish that he made, his resipe, his bread. God just made a way to recycle or multiply the fish and bread so that it could be shared by the whole multitude and never run out. That’s no different than someone who has a file on their comp and they agree to share that file with others.

I think Jesus ought to make an appearance on MTV to clarify his position. 🙂

To be a spoilsport, the logic fails because there was no intellectual property laws at the time, and even today, the fish and bread Jesus multiplied wouldn’t be copyrightable (or patentable).

I must admit, though, that’s a new one. 🙂

Ed