By Heather Green
It would be fun to look at the most recent Hollywood-backed copyright protection bill and simply call it what it is: downright silly. Unfortunately, the debate over what to do about copyright protection seem to be building to a head in Washington, with Hollywood's view -- that no holds should be barred -- holding sway.
That means, unfortunately, that heedless bills like this one, which was introduced on July 25 in the House of Representatives by Representative Howard Berman (D-Calif.) and Howard Coble (R-N.C.), actually have to be taken seriously. So, instead of ignoring it as the scrap of nonsense that it is, let's call this bill irresponsible.
What's all the fuss? Berman's bill gives copyright owners a legal right to hack into and disable peer-to-peer networks suspected of illegally trading copyrighted works. It's an aggressive new tactic in a battle that the Recording Industry Association of America (RIAA) and the Motion Picture Association of America initially waged primarily against those behind the software and services that they allege are contributing to copyright infringement.
FREEDOM TO ATTACK.
Critics of the new tactic are calling it vigilante justice, and it certainly looks a lot like that. Frankly, the provisions under which a copyright owner gets to hack someone else's computer are pretty loosey goosey.
All copyright holders need to do before launching an attack is alert the Justice Dept. about the kind of software they're using. They don't have to tell Justice how long they plan to conduct a hacking campaign or even which site it will target. They don't even need to inform the person whose computer they are hacking what is going on -- even after the fact.
Meantime, consumers who share a network with the person being attacked could end up having their service impaired. And a legitimate file-sharing service could come under attack without a chance to respond to a copyright holder's claims of infringement.
THE SYSTEM WORKS.
Forget how nonsensical and rare it is to grant any industry this kind of power. There's actually a more compelling point: Plenty of laws are already on the books to protect copyright holders. Copyright infringement is a crime. Courts and law-enforcement agencies already exist whose sole goal is to prevent crime. Entertainment companies have the option of tracking what they think are unlawful activities and alerting law officials.
Under the four-year-old Digital Millennium Copyright Act, copyright holders can also issue subpoenas to Internet service providers (ISPs) to obtain contact information about a potential infringer. Then copyright holders can send a warning e-mail or instigate litigation.
The beauty of these scenarios is that they follow the basic guidelines of due process by protecting innocent people, getting the bad guys, and providing at least the modicum of a forum for someone accused of copyright infringement to protect themselves.
Using the existing system can produce results. Just ask the Business Software Alliance (BSA). Established in 1988 by technology companies, the BSA uses existing laws to go after pirates. Software outfits so far have a lot more skin in the game than the entertainment industry. They lost about $11 billion in sales last year. The RIAA, meantime, can't quantify the dollar impact of online piracy beyond stating that millions of dollars are at stake.
The BSA uses a three-pronged approach: working with policymakers, running education campaigns, and collaborating with law enforcement. The group often conducts its own investigations, referring those cases to law officials. It sends notices to ISPs about potentially pirated material, including material on peer-to-peer networks. It works with governments and businesses in the U.S. and abroad to run education campaigns.
Yet, even as the software piracy rate has increased, the BSA hasn't called for new laws. Unlike some entertainment companies, the BSA isn't asking Congress to mandate the inclusion of technology in all software, PCs, and servers to protect copyrighted works.
NO "SILVER BULLET."
That's because the BSA has a sense of what works and what doesn't. And vigilante use of technology -- or the call for mandated technology that could affect other consumers, innovation, or the market -- just doesn't make sense. "There isn't one technological silver bullet," says Bob Kruger, BSA's vice-president for enforcement. "You have to look at it as a multifaceted problem that takes a multifaceted solution. If you put all your eggs in one basket, you're not got to be able to make a big difference."
The RIAA argues that it needs special exemptions. The organization does work with law enforcement and ISPs, but it says too many separate computers and services are out there for it to rely on the existing legal structure. In its fight against piracy, it wants to explore all the options. "Traditional methods can't control mass, worldwide piracy. That's why the Berman bill offers a unique perspective," says Mitch Glazier, senior vice-president for government relations at the RIAA.
Copyright holders haven't proven that they deserve that kind of power. Legislators shouldn't be willing to consider something as outlandish as Berman's bill until entertainment companies have proven first that they have exhausted the other legal avenues already available. Instead, the entertainment industry and Congress should take a look at the BSA's most recent piracy report, which explains why the the BSA has been successful in the past, and why it now faces new problems.
THINK LONG AND HARD.
The chief reason for the lowering of piracy rates over time is simple, according to the BSA report. "As PC technology and the demand for software spread from the U.S. to other countries during the 1990s, there was, at times, a lag between the demand for software and the effective distribution of legal software.... The software industry has worked hard to have a legitimate sales presence in every country, making legal software sales and support easier to obtain."
As to the reason for a recent uptick in piracy, instead of pointing the finger at the Internet, the BSA explains that the increase is due to the economic downturn, with people in harder-hit countries turning back to pirating software.
Congress should consider a lot of things before considering Berman's bill. Legislators also should look at how other industries handle piracy. Instead of swallowing the entertainment industry's line, Congress needs to do a little thinking on its own.
Green covers the Internet and e-commerce for BusinessWeek in New York