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Saturday, Jul 11, 2009
As Hollywood wins one court case after another, one Republican senator is suggesting that maybe it's time for some new laws -- that protect consumers instead of entertainment companies.
Jun 17, 2003 | 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.
