RIAA & MPAA Using the Feds as Muscle

By Brandon Lovested | in Copyright Law, Music | 7 Dec 2007 | No Comments

The RIAA and MPAA have never tried the carrot-and-stick approach to anti-piracy efforts — just the stick part. It’s all about the stick.

The reason is a perception that an entire generation of kids and young adults does not respect copyrights, and that the combination of digital content and the widespread distribution medium of the Internet provide for the perfect storm. Also, as a friend of mine in the legal department of a Hollywood studio says, they are damn scared.

However, the ends don’t justify the means. Section 494 (“Campus-based digital theft prevention”) of a bill to amend the Higher Education Act before Congress, as summarized by intellectual property attorney Sunny Kalara of BizOrigin.com, states:

Each eligible institution participating in the federal aid program shall:

• provide annual disclosure/warnings to the students applying for or receiving financial aid, stating that:
– P2P file sharing may subject them to civil and criminal liability;
– summary of penalty for violation of copyright laws;
– University’s policy of disciplinary action for using university’s IT for unauthorized downloads; and
– the actions that the University takes to detect such activities;
• develop plans for offering alternative to illegal downloading or P2P distribution; and
• develop plans to deter illegal downloading.

Last month, members of the Joint Committee of the Higher Education and Entertainment Communities wrote a letter to bill sponsor Congressman George Miller arguing that:

This entertainment industry proposal which may be under consideration by the House Education and Labor Committee would establish the Secretary of Education as an agent of the entertainment industry by requiring the Secretary annually to create a list of the 25 colleges and universities with the highest levels of unauthorized peer-to-peer (P2P) file sharing, based on data supplied by the industry. The list of the top 25 violators provides no logical basis for initiating federal action. It does not reflect a universal census of violations, nor even an appropriately designed random sample of violations. Rather, the entertainment industry gets to decide who is a “violator.” The entertainment industry assuredly would make these choices to maximize the political and deterrent impact, but the fact remains that the 25 colleges or universities so identified would be designated by the entertainment industry. The Secretary would be required, under the language of the proposal, to act on the entertainment industry’s information and direction. This clearly is an inappropriate role for a Cabinet officer of the Federal government.

In addition, the entertainment industry proposal would require targeted schools to impose a “technology-based deterrent” to prevent illegal file-sharing, adequate versions of which experts agree do not yet exist. Further, the proposal is aimed only at colleges and universities—which industry leaders admit are responsible for only a small fraction of illegal file sharing—but not other internet service providers whose networks are associated with most of the problem.

If a school participates in a federal loan program, it must enact these measures. But this reasoning is dubious, says Mike Masnick over on TechDirt.com:

“many kids on college campuses own cars — and I’d imagine that most of those students break the speed limit frequently enough. Yet, we don’t see any bills being proposed in Congress that would prevent financial aid funding unless universities start handing out more speeding tickets and put in place plans to offer public transportation. So why should they do that for copyright infringement?”

The reach of this bill at the behest of private industry is frightening. The danger of this strong-arm tactic is that it opens up universities to additional corporate coercion vis-à-vis any number of business relationships they have with college students. If this precedent is allowed to stand, why stop there? Why not go after other organizations that are dependent upon federal funding, by crafting legislation on behalf of corporations eager to legislate what they fail to do in normal business practice? This could be a whole new kind of fundraising for those always-thirsty Congressional election coffers.

Meanwhile, Back at the Studio Lot …

Over at the MPAA, they’ve built what they call a “University Toolkit,” intended to be installed on university servers, to monitor websites being accessed from within the university network. This would measure how many times students access BitTorrent (a popular file-sharing mechanism), for example, but not what specific content is downloaded. They are trying to demonstrate guilt by association, implying that traffic through file-sharing mechanisms is illegal. File sharing is, in fact, not illegal. I can believe the MPAA’s argument would work if in a court of nine-year-olds, but I’d be surprised if it worked in a court of law.

Plus, the current version of the toolkit is so buggy (they claim it’s still in beta) that it installs with certain options initially disabled — which opens up university servers to anyone who wants to observe their traffic. Not a good thing, and any system administrator who would slap in a ‘beta toolkit’ from an untested application developer (MPAA and their tech minions) should have their head examined.

In an article on the Washington Post blog site, Steve Worona, the policy and networking director at EDUCAUSE (a nonprofit organization in the IT in Higher Education space), said:

“The MPAA appears to be asking university administrators to run something which could expose sensitive, private data and in the process leave the campus subject to privacy complaints by virtue of student data being exposed.”

In summary, the MPAA wants to spy on students (and indeed all university Internet traffic), using software that does not identify individual users or files, but will assume, a priori, that copyright laws are being broken. This is so irrational; no wonder they want Congress to mandate it in an Education bill.

Is The Stick Becoming Burdensome at EMI?

On a related note, according to a Reuters news story, recording behemoth EMI is trying to reduce what it contributes to the RIAA and the IFPI (International Federation of the Phonographic Industry). EMI and three other major recording conglomerates each contribute about $132 million annually; that’s well over half a billion dollars a year spent on a couple of organizations whose increasing raison d’être is to harass the music-buying public.

From the article:

In the past, the RIAA has admitted that their legal campaign against music piracy has been financially detrimental, but they would not officially comment on this move. Others, like BAGeL Radio station director Ted Leibowitz, has publicly admitted that the RIAA’s campaign has been a “financial disaster” and an “even greater public relations disaster.”

EMI claims this is part of a financial cost-cutting exercise, probably initiated as a result of their purchase by a public equity firm. But one wonders if the years of habitual harassment of their present and future customers has taken a toll.

In our society, the younger generation — 12 to 24-year-olds — purchases most entertainment media. It’s also the segment of the population that tends to eschew previously held societal conventions. Call it societal mutation. Generation Y may simply not care about intellectual property. Of course, that doesn’t mean we should put them in jail; they are, after all, future customers.