Avast, Ye Pirates 

Get yourself -- and Congress -- ready for the next wave of absurd anti-file-sharing tactics.

Let's say that for the past year you've diligently bought MP3s legitimately from sites like iTunes and the relaunched Napster. "I'm getting cool music and paying the artists," you think. "Everything's perfectly legal. John Ashcroft and Lars Ulrich would be proud." Then you buy your thousandth song -- say, the Black Eyed Peas' "Let's Get Retarded" -- and moments later the feds burst into your room and cart you away. To jail. For three years.

Couldn't happen, right? Well then, neither could this: It's Friday night. You've had a long week at work, and all you want to do is settle into your favorite chair and watch that Desperate Housewives episode you taped earlier. You press play and happily fast-forward through all the commercials. Suddenly, five FBI agents barrel through your front windows, yelling "Drop the remote, scum!"

A final, completely impossible possibility: For the holiday gift-giving season, you want to buy an Internet phone, a laptop with wi-fi capabilities, Jane magazine, a 3-D scanner, and a subscription to The New York Times. You soon discover, however, that you're screwed, since all these items have been sued out of existence thanks to ludicrously vague copyright law.

All three scenes sound ridiculous, even by George Orwell's standards. And yet, if certain members of Congress and their deep-pocketed allies in Big Media have their way, all of them could soon become reality.

In fact, the Senate is currently haggling over a bill, HR 4077 Substitute, that would make at least the first two scenarios eminently possible. Sponsored by Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont), this legislation is actually a bunch of stitched-together copyright-issue acts, some of which have already passed either or both of the houses of Congress. A few of the articles are harmless -- one would designate the oak our national tree -- while others are horrifying. Chief in the latter category is the Piracy Deterrence and Education Act (aka PDEA, the original HR 4077).

"This is the almost-worst-possible bill," says Art Brodsky, communications director for Washington, DC, digital rights organization Public Knowledge. (Worst possible, Brodsky believes, is the INDUCE Act, which we'll get to later.)

The PDEA aims to switch the onus of prosecuting file-swapping peer-to-peer users from Big Music and Hollywood to the US government. So instead of suing file-swappers themselves, these huge media companies would let the government -- and your tax dollars -- take over.

"The recording industry has this problem," says Jason Schultz, attorney for SF technology liberties watchdog Electronic Frontier Foundation. "The people who are their biggest fans are also the people who they are the most mad at, because they're the ones downloading stuff. They've never figured out what to do with this problem, because they want to crack down and sue, but they also don't want to alienate them. ... So the solution they came up with was, 'Jeez, if we can find some way for the Justice Department to do our dirty work for us, we can crack down on Americans, and they'll blame the government more than they'll blame us.'"

Not one to do anything half-assed, the recording industry also suggested the government crack down like a sledgehammer, offering fines of up to $250,000 and jail stays of up to three years. And here's the kicker: The PDEA's language is incredibly vague, suggesting that "making available" or "offering for distribution" MP3s would constitute such an offense.

"'For distribution.' What does that mean? 'Making available.' What does that mean?" Brodsky asks. "These standards are very vague, and could just as well include material on networks, on hard drives, whatever." And that's a thousand legally downloaded songs, like the ones that artists offer for free on their Web sites, or even those you buy from iTunes, if you were to either burn songs for friends or use the site's sharing feature to stream songs over a network. Not to mention all the people -- you know who you are -- who are still illegally downloading materials, like, oh, the leaked new U2 album.

"If that's the standard, then you're criminalizing half the teenagers in America," Schultz says. "Do we really want to start filling our jails with teenagers who simply downloaded music?"

What do government goons get for assuming the task of prosecuting twelve-year-old boys, 25-year-old indie rockers, and 84-year-old grandmothers? Well, for one thing, they get money. If the House follows the Senate in passing the Protecting Intellectual Rights Against Theft and Expropriation Act (S. 2237, aka PIRATE), the Department of Justice will get a puny $2 million to take civil action against copyright infringers. But the PDEA recommends that the department should get $15 million more for education and prosecuting purposes -- except that the money would have to come out of its existing budget, which means it would be diverted from such unnecessary activities as, say, fighting terrorism.

The PDEA's original language also demanded that ISPs share information about any infringing subscribers with the Justice Department, although that action has now been made only "voluntary," which is like having a cop politely ask you to take a DUI test. Schultz points to this expansion of powers as a reason the feds are happy to go along with the act: "In addition to PDEA and the PIRATE Act, the DoJ just released a Task Force Report on Intellectual Property, which outlined all the things they want to do besides PDEA. It includes expanding wiretap authorizations for crimes of intellectual property. So that if they suspect that you're an intellectual-property thief, they will move to get a wiretap order to tap your phone and your e-mail, log what Web sites you go to, and your Web traffic, all this stuff."

Bizarrely enough, none of these Orwellian aspects of the bill has gotten the attention of the Senate. What has held up the omnibus package is something far simpler: John McCain's distaste for commercials. The maverick Republican senator from Arizona has placed a hold on the act until language in the Family Movie Act, making it illegal to speed through ads on videotaped TV programs, is taken out. That's right: Rep. Lamar Smith (R-Texas) wants to make it a crime for you not to watch that annoying formerly fat guy shill for Subway.

During the legislative break, it is hoped that McCain and other senators will take a closer look at the PDEA's ramifications, including its possible quashing of technological innovation. Regarding that thousand-songs rule: Schultz says that if you're streaming iTunes throughout your house via wi-fi, then you could be caught sharing your songs with your neighbors and anyone driving by. And if that's illegal, then couldn't the definition of sharing be extended to playing your car stereo with the windows down? Furthermore, it's highly likely your cell phone, laptop, TiVo, and iPod already hold that many songs, if not several thousand more. Does sharing or publicly enjoying those constitute an offense?

"Even though these bills are trying to target peer-to-peer, the language that they use will trample not only other technologies, but ones we haven't invented yet," Schultz says. "The fear is that Congress will be so overzealous in their pursuit of criminalizing peer-to-peer users that they will outlaw or ban all kinds of amazing future technologies that we will mostly all use legitimately."

These issues are even more prevalent in the case of the aforementioned worst-case scenario: the Inducing Infringement of Copyrights Act (S. 2560, formerly known as INDUCE, now IICA), which dropped off the Senate calendar in early October but is expected to be retooled for next year. Introduced by the ubiquitous Senator Hatch (who, according to Congressional newspaper The Hill, has sponsored more unconstitutional laws than any of his peers), IICA would've made any company that induced -- or promoted the inducing of -- copyright infringement liable for that transgression. Therefore, not only would VCR, TiVo, and CD-burner manufacturers be running scared, but future innovators would think twice before stepping into this legal minefield. Plus, anyone who wrote about such companies favorably, or wrote positive articles about users of their products, or recommended that people do such activities, would be liable.

Under such vague language, magazines, newspapers, Web sites, artists, or labels that were seen as endorsing file-swapping could be sued. "It's a really dangerous thing in its current form," says Kevin Arnold, founder of SF's Independent Online Distribution Alliance (a digital music distributor for indie artists and labels) and the Noise Pop Festival.

Thankfully, the opposition to IICA was overwhelming, including such large companies as Yahoo, Verizon, Texas Instruments, Google, Intel, Sun Microsystems, and MCI, as well as constitutional watchdogs like EFF and the American Library Association. It didn't hurt that Hatch decided to also use the bill to harp against the evils of downloadable pornography, always the last tactic of a desperate politician. Then again, perhaps it was a ruse. "There's also a theory that INDUCE was a red herring put out there to distract attention away from PDEA, while they push that thing through," Arnold says.

In any event, downloading -- legal or otherwise -- isn't going away, even with such heavy-handed attempts to terrorize the participants. But one of the most bizarre things about these bills is that they're completely unnecessary from a policy standpoint. As Schultz points out, "The RIAA lawsuits are actually making money for the record companies. They're actually bringing in more money than it costs them to file the lawsuits. So there's no reason they can't simply file more and step up their own enforcement. There's no need for the Justice Department to intervene at all."

What we have instead is a terrible PR move that could send thousands of innocent people to jail, do irreparable harm to the economy, stunt future technological growth, and divert the Justice Department's attention from far more important matters. "Everyone waves their hands in the air and says, 'Piracy bad, piracy bad!' and expects to pass anything they want," Schultz says. "We have to try to hold Congress to a standard that they need to pass the laws that they want to pass."

And that means leaving you, your fast-forward button, and your legit "Let's Get Retarded" download alone.


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