You wouldn’t know it from looking on Kazaa or Limewire, where hit songs are flowing as freely as they always have, but trading music online recently became pretty dangerous business. On June 4, a federal appeals court ordered Verizon Communications to hand over to the recording industry the identities of four Verizon customers suspected of illegally sharing songs on peer-to-peer services. It was a significant victory for the record labels, perhaps the biggest yet in their long-running effort to stamp out the MP3 trade online. At least temporarily, the decision allows the industry to easily obtain personal information on virtually anyone who might be sharing copyrighted songs online — yes, even you.
The Verizon decision was just the latest defeat for people wary of the expanding power of the entertainment industry in the digital world. Four and a half years have passed since Congress passed and the president signed the Digital Millennium Copyright Act — the main federal law governing the use of content online — and in that time critics of media firms have been rebuffed in dozens of federal courtrooms around the nation.
Civil liberties groups intend to keep fighting copyright laws in the courts, and Verizon, too, says it’s confident that it will ultimately prevail in its efforts to keep its customers’ private data away from the music industry (a full trial on the merits of Verizon’s claims is scheduled to begin in September). But it’s telling that the company believes that, at least in the short term, the judicial process can offer Internet users no comfort.
Verizon is instead recommending that people across the nation seek help from the only body that can fix things now. “We think it’s time Congress became involved,” says Sarah Deutsch, Verizon’s associate general counsel.
Verizon has thrown in its support for an eight-page document that, in civil liberties circles, is referred to simply as the “Brownback bill.” That phrase is, technically, incorrect. The Brownback bill is not yet an actual bill in Congress; instead, it’s an idea devised by Kansas Sen. Sam Brownback, a conservative Republican, to explicitly prohibit some of the entertainment industry’s worst actions — such as its effort, in the Verizon case, to get at private information of Internet users, or its attempt last year to mandate that all digital equipment come equipped with copy-protection technology.
Drafts of the legislation have been circulating among consumer groups and other members of the Senate for a few months, but — apparently for lack of a Democratic co-sponsor — the bill has not yet been formally put forward. It’s not clear when that will occur. Salon’s calls to Sen. Brownback were not returned.
One draft obtained by Salon — titled “Brownback Version 2.0″ — appears to focus mainly on digital rights management systems, the technology that entertainment firms are increasingly relying on to protect their digital media products. The draft prohibits the Federal Communications Commission from requiring tech companies to include DRM technology in their devices; for example, if the bill becomes law the FCC would not be able to force electronics manufacturers to make CD players that play only copy-protected CDs.
The provision seems to be a direct response to the efforts of Sen. Ernest F. “Fritz” Hollings, the South Carolina Democrat who attempted, last year, to mandate tech companies to produce devices that obey DRM schemes; Hollings’ bill delighted the entertainment industry, but it didn’t get very far in Congress.
The Brownback proposal also requires all copy-protected products — for instance, CDs, DVDs, e-books or digital songs bought from the Apple Music Store — to be clearly labeled with their restrictions. Finally, the proposal would prohibit copyright holders from easily getting the names and addresses of people they suspect of copyright infringement on the Internet — this is the section of the bill that Verizon is most interested in. If the bill becomes law, content owners would be required to first file a civil lawsuit against an anonymous alleged digital thief; only if a judge decides the case has merit will the Internet user be identified.
Critics of copyright powers thoroughly like the Brownback idea. “We like what we’ve seen so far,” says Fred von Lohmann, a senior intellectual property attorney at the Electronic Frontier Foundation. “The developments in the Verizon lawsuit have made the bill that much more timely, and as more DRM products hit the market it’s going to make the bill more and more relevant.”
The recording industry, predictably, doesn’t like it very much. In a statement, the Recording Industry Association of America, the music industry’s main trade group, said: “This legislation is weighted down with a variety of provisions hostile to all property owners and beneficial to digital pirates … The Digital Millennium Copyright Act was a carefully crafted compromise and balance struck by Congress. Efforts such as this to cherry pick particular provisions undermine the checks and balances provided in the law.”
The RIAA added that: “Government-imposed mandates on labeling or digital sales are clearly contrary to the idea that the marketplace is the appropriate venue to determine these business issues.” That’s an odd line coming from the entertainment industry, which routinely seeks, and routinely receives, government-imposed mandates on digital technology. What was the Hollings Bill, after all? An effort to strengthen the free market? What’s most interesting about the Brownback bill, then, is that it’s a kind of preemptive strike against media firms, a way to prevent the string of courtroom losses groups such as the EFF were handed after the passage of the DMCA. For once, the bill puts the entertainment industry on the defensive.
Will the effort work? Does the Brownback bill stand a chance? The legislation certainly faces an uphill climb, considering Congress’s traditional deference to the entertainment industry. But fans of free songs online, for one, better hope the bill does well; if it fails, we may be pretty close to the day the (free) music died.
The latest Verizon ruling came in a lawsuit that began last summer, when the RIAA obtained what’s known as an “information subpoena” to force Verizon to divulge the names of customers the RIAA says were making hundreds of songs available on Kazaa. The information subpoena was obtained under a disputed section of the DMCA; according to the RIAA, the law allows copyright holders to present an Internet address to a court and get, without any judicial review of the claim, the name and physical address associated with that Internet address. Verizon and many other ISPs — except for AOL — say that the RIAA must go through the process of filing a lawsuit against the anonymous file trader before it can get any information about the person.
So far, Verizon has lost at every stage in the case; its latest bid was an appeal for the court to let it keep the names confidential until the case was fully resolved later this year. But the court said that Verizon has “not shown so great a likelihood of success on the merits as to outweigh the clearly greater harm that would accrue to [the RIAA] if the stay were granted.”
Sarah Deutsch, Verizon’s attorney, says that “Verizon intends to comply with the subpoenas,” and it expects to receive many more such requests in the near future. “They can hand us more subpoenas,” she says of the RIAA, “and they can send more subpoenas to other service providers. And they’ve announced to the court that they intend to send a very significant number of subpoenas.”
What makes this ruling so important is that it lifts, for the first time, the veil of anonymity that so far has shrouded the world of online file trading. In its fight against MP3 trading, the recording industry has been rather successful at shutting down some file-trading systems — think of Napster and Audiogalaxy — but those efforts have done remarkably little to deter individuals from trading music online; most people have continued sharing in the naive assumption that the recording industry couldn’t, or wouldn’t, go after them personally.
Well, now, after the Verizon ruling, the industry can go after you. And maybe it will. Recently, the industry has shown no qualms about pursuing individuals it suspects of copyright infringement. In April, the RIAA sued four students who ran campus trading systems at their colleges. The RIAA alleged violations that could have landed the students in tens of millions of dollars in debt — a sum so outrageous they all decided to settle for thousands.
On his Web site, Jesse Jordan, one of the four students, seemed quite upset by the whole episode. “I am to pay the RIAA $12,000. In other words, I am to give them the balance of my bank account — money I have worked over 3 years to save up,” he wrote. “This money was for me to spend on books and other costs that come up from day to day. If the RIAA thinks that this is only a minor setback for me, they are greatly mistaken. I hope that they enjoy the new fax machine (or whatever they plan to spend it on), because the artists they supposedly represent will certainly never see a dime of it.”
Jordan is lucky; his Web appeal struck a chord with surfers, and he’s received, so far, more than $9,000 in donations. Interestingly, he doesn’t seem deterred by his ordeal. He writes on his site that he is looking into bringing back his campuswide trading system, because “it would be a real tragedy to allow the RIAA to stifle the advancement of legitimate peer-to-peer file sharing services. I will personally make any effort possible to ensure that this repression does not occur … If the RIAA thinks that these lawsuits will curb music piracy, they had better think again. What do you think?”
It’s a good question — will most file traders respond so cockily to a lawsuit from the RIAA? Probably not. If the RIAA catches you trading copyrighted music online, remember, you won’t have much of a defense; attorneys have long debated whether systems like Napster are illegal, but on the question of whether an individual trader’s actions violate the law, there is pretty broad agreement: If you upload or download a copyrighted music file, you are doing something illegal. If you’re caught, it would make economic sense to settle the case. But if there are a few, or a few dozen, high-profile settlements with the RIAA resulting in kids’ getting stuck with thousands of dollars in fines, won’t people conclude that it makes even more economic sense to go to the store and buy some CDs?
According to people familiar with the process, Sen. Brownback’s bill, which would curb the RIAA’s ability to pursue individual file traders, was initially going to be introduced before the Memorial Day congressional break — but Brownback has hit some snags in looking for a Democrat to sign on to the idea. Mike Godwin, an attorney at Public Knowledge, a consumer group that helped in the drafting of the bill, says that he doesn’t think this is a major stumbling block for the bill. “It’s just part of the process,” he says. “Once they had a bill they thought was ready for prime time they consulted with the different stakeholders and with chairman McCain” — Sen. John McCain, the Arizona Republican who heads the Commerce Committee — “who told them that if you want to make this process go smoothly you need a minority party sponsor. So they’re shopping around for one now.” Godwin didn’t know when the bill would be introduced.
It is possible, though, that a Democratic sponsor may be hard to find. “For better or for worse,” says Fred von Lohmann, “the entertainment industry is a longtime source of campaign contributions to the Democrats, so it’s hard to rally a Democrat to come out and support a bill that Hollywood doesn’t approve of.”