The torrent of unauthorized file sharing through peer-to-peer Internet services has generated a barrage of panic, overreaction and reckless attempts to change the cultural and technological behavior of some 60 million Americans.
The most recent and most reckless comes from the chairman of the Senate Judiciary Committee, Sen. Orrin Hatch of Utah, and the committee's ranking Democrat, Sen. Patrick Leahy of Vermont. It's awkwardly named the Inducing Infringement of Copyrights Act, or the Induce Act. It would subject to civil penalties anyone who "intentionally aids, abets, induces or procures" a copyright violation by a third person. In other words, the photocopier in your office could be contraband, as could the computer on which I am typing this column.
The Senate Judiciary Committee will hold a hearing Thursday, July 22, on the bill. Testifying will be representatives of the entertainment industries and the consumer electronics producers.
The bill is so broadly conceived that it could undermine the U.S. Supreme Court ruling in Sony Corp. vs. Universal City Studios, commonly called the 1984 "Betamax case." That 5-4 decision ensured that the videocassette recorder would be legal and ultimately made the world safe for home recording and archiving of all kinds.
More fundamentally, the bill reflects a serious misunderstanding of peer-to-peer technology specifically and the effects of technology generally. It is the worst kind of policy intervention: destined to cause more trouble than it solves and certain to stifle technological innovation. It will make lawyers richer while failing to help the copyright holders it is supposed to save.
The bill is aimed at a handful of companies that provide interface software for peer-to-peer file-sharing services such as Kazaa and Grokster. Millions of people offer hundreds of millions of music files in the popular MP3 format over the Internet. These companies, which help people find the files they seek, have found a legal safe haven because a federal court concluded last year that they are designed in such a way that they cannot be responsible for how their clients use the system.
In a previous case involving an early MP3 player, a federal court ruled that playing technology itself can't be illegal under the standards the court set in the Betamax case: The technology is capable of "substantial non-infringing uses" and thus should be allowed.
While industry lobbyists swear they would go only after the proprietors of peer-to-peer services, they don't have much credibility. After all, they have already taken the makers of videorecorders and MP3 players to court. Why wouldn't they do all they could to fix other technologies to behave as they wish?
"Enabling technologies have nothing to worry about as long as they are not inducing other people to violate the copyright law," David Green, a vice president of the Motion Picture Association of America, told the Washington Post. And Mitch Bainwol of the Recording Industry Association of America told the New York Times that his organization would not go after what he called "neutral technology" like the personal computer.
Here's the problem: No technology is neutral.
The idea of technological neutrality is most succinctly expressed by the slogan "Guns don't kill people; people kill people." The slogan may be simplistic, but the theory is pretty powerful. It influences many of our debates about technology and policy, from guns to automobiles to encryption.
The problem with technological neutrality is that people create technologies and people use technologies. And people are not neutral. They have cultures and values and expectations.
Technologies reflect ideologies. They reflect the values embedded in them. They alter the environment in which they operate. They enable people to imagine using them in particular ways. There is nothing deterministic about technologies. A gun in the first act need not go off in the third.
But technologies offer possibilities. And possibilities guide options. The bumper-sticker version of this theory of technology goes something like "To a man with a hammer everything looks like a nail." The man might not ever slam the hammer. But he thinks about it.
The peer-to-peer software is but one necessary part of an elaborate system that enables people to share millions of files. Kazaa does no copying. It's just a search engine. The entire system of unauthorized distribution implicates the personal computer (which, after all, is a very powerful copy machine), the high-speed modem service, and the protocols that underpin the Internet itself.
Each of these technologies contributes to the menu of potential uses that such a system enables, and thus the "technological imagination" of users. For the past four years, hundreds of millions of connected people around the world have been able to say, "What if I could search for music like never before?" or, "Imagine contributing to a vast library of both odd and obvious cultural choices." It's not surprising that many of those empowered by these technologies choose to use them.
All these technologies -- especially the personal computer -- are much more powerful and customizable than any previous communication technologies. And they are all designed to foster irresponsibility. That does not mean all users are irresponsible, just that those who do not wish to be held responsible for their expressions most likely will not be. Internet users understand this intuitively. So they misbehave.
Because all the elements of the system are basically anarchistic, irresponsible technologies, the only way to address this phenomenon technologically is to do so systematically. That means re-engineering every step in the process, every device in the flow.
If we don't want to radically alter the personal computer and the Internet itself, there is not much the Senate or the entertainment industry can do about file sharing. Users who are accustomed to this new technocultural environment will simply find another way. They will migrate en masse to other services like Gnutella, ICQ, FreeNet, and BitTorrent.
Recently the civil liberties group Electronic Frontier Foundation worked up a mock complaint that might be issued if the Induce Act becomes law. The complaint makes it clear that Apple would be liable for selling the popular iPod music player.
Remember: When iPods are illegal, only criminals will have iPods.