Recently there has been
a lot of fervor over the Stop Online Piracy Act (SOPA) and the Protect IP Act
(PIPA). Each law gives the government more power over the internet.
“[This law] establishes
a system for taking down websites that the Justice Department determines to be
"dedicated to infringing activities." The DoJ or the copyright owner
would be able to commence a legal action against the alleged infringer and the
DoJ would be allowed to demand that search engines, social networking sites and
domain name services block access to the targeted site. In some cases, action
could be taken to block sites without first allowing the alleged infringer to
defend themselves in court.”
“This bill would
establish a system for taking down websites that the Justice Department
determines to be dedicated to copyright infring[e]ment. The DoJ or the
copyright owner would be able to commence a legal action against any site they
deem to have "only limited purpose or use other than infringement,"
and the DoJ would be allowed to demand that search engines, social networking
sites and domain name services block access to the targeted site. It would also
make unauthorized web streaming of copyrighted content a felony with a possible
penalty up to five years in prison. This bill combines two separate Senate
bills -- S.968 and S.978 -- into one big
House bill.”
There is a bill
proposed by some of the opposition, called the OPEN Act. I am not a fan of that
legislation, but I don’t want to use up words trying to show my opposition to
it. There is a different approach proposed.
The Pirate Party, a
political party with roots internationally in countries such as the United
States, Sweden, Scotland, Canada and the United Kingdom. The international website argues
that “All non-commercial copying and use [of copyrighted material] should be
completely free. File sharing and p2p networking should be encouraged rather
than criminalized.” The group also criticizes the current copyright terms,
saying they are absurd and that “nobody needs to make money seventy years after
he is dead.” The alternative they propose is “a five years copyright term for
commercial use.” Passionately, they argue for “a complete ban on DRM
technologies, and on contract clauses that aim to restrict the consumers' legal
rights.” The UK-based political party offshoot
follows a similar line, arguing for balanced copyright law. Their website is a bit more descriptive mentioning that the party
would support peer-to-peer networks (which the party says supports lesser-known
artists) and a right to a “format shift” (copying data from a CD to a portable
media device). However, they note that “counterfeiting and profiting directly
from other people's work without paying them will remain illegal.” That last
provision could run up against those who want to help others. There is no definite website for the United
States pirate party, but their LinkedIn website gives some insight. That website says that want “abolition of the DMCA and related
subsequent provisions within copyright law…rejection of the concept of online
piracy…reform of copyright…abolition of Digital Rights Management…[and] reform
of trademark.”
I believe that Digital
Millennium Copyright Act (DMCA) must be repealed and that non-commercial
copying and use of copyrighted materials should be allowed. The government must
not use the FBI, Immigration and Customs Enforcement or any other government
agency to shut down parts of the internet. This would hurt the sharing of
information that current occurs. Big Music would obviously oppose this measure
since pirating would be partly legalized but that must be overcome. If these
measures were enacted, then piracy online would fall because it would be legal
instead. I do not advocate for making it legal for people to pirate and then
copyrighted materials of others for a profit or the counterfeiting of goods for
a profit. However, counterfeiting of goods that do not cause bodily harm should
be allowed or should be focused on by authorities. Those counterfeited goods
that cause bodily harm should be focused on by law enforcement.
The software piracy rate was 20% in the
United States in 2007, #107 of 107 (nationmaster.com). In Spain,
according to Hollywood Reporter, it is much higher, being “over 77% of the digital
content consumed in Spain in the first half of 2011 was pirated, marking a .4%
climb from the same period to previous year [and] more than 98% of all digital
musical content was downloaded illegally.” In 2010, DailyTech reported that peer-to-peer network piracy rates
were 9-13%. While efforts at trying to
cut piracy on the internet like shutting down LimeWire (2010) and Megaupload
(yesterday) have seemed to limit the amount of those downloading, people are
moving to other sources such as YouTube. One major reason for this approach is
because people support legalizing music online.
In 2003, a CBS News /New York Times poll asked 675 adults nationwide (18-30+ years) a number
of questions on this topic. An even smaller amount answered the question about
music file sharing. When asked "When it
comes to sharing music over the Internet for free, which comes closest to your
view?” An average of about 17% of all respondents, those 18-29 and those 30 and
older said downloading music is always acceptable. Average of 43% of those from
same groups said that downloading music should be sometimes acceptable. An
average of about 35% said that sharing is never acceptable and about 3% said
they didn’t know. The support for downloading was across the board. A poll the
same year by the FOX News/Opinion Dynamics Poll of 900 people was a bit more
promising. 61% of those 18-34 approved of “approved downloading music over the Internet” and
only 35% disapproved of it. However, as age increased, people became more
opposed to the idea (probably because they got paranoid or just wanted the
status quo). Of those people 32% had downloaded music over the internet without
a fee. A poll of 2,600 Americans in
2007, reported by MSNBC stated an interesting conclusion. They
wrote: “Only 40 percent of
Americans polled…agreed that downloading copyrighted movies on the Internet was
a "very serious offense."… 59 percent of Americans polled considered
"parking in a fire lane" a more serious offense than movie
downloading.”
The approach of legalizing downloading is supported by a good mass of the
people in every method, rising substantially from 2003 to 2007. On the other
hand, Chris Dodd, a major lobbyist for MPAA, which wants this piracy laws in
place, says that DMCA did not “break the
Internet…deprive anyone of freedom of speech at all. And…did not curtail or
stymie creative innovation in new technology.”(Hollywood Reporter) That’s what Big Music says. Privacy Digest had a different tact, writing about erroneous DMCA
claims because of the problem in copyright enforcement. Part those problems
stem from a component of DMCA, DRM or Digital Rights management. The website
explains that DRM “restricts users' ability to share content or to consume it
in a proscribed manner…has been largely disliked by end-users…creates a poor
user experience and interferes with expected rights (under fair-use doctrine) [and
allows] copyright infringement notices are needed precisely after
"unprotected" content has already [disappeared].”
Another website comments
in the same vain. Questioncopyright.org notes that criminalizing downloads is not practical
because there is a lack of jail cell space and “erodes one's civil liberties.”
The major reason is because a phone could be tapped, a house could be put under
surveillance and a computer could be seized. In addition, these measures have
been used to “censor free speech when that speech is [contrary] to a copyright
holder's financial interests” and has negatively affected researchers. Original
copyright law, the cite notes, commercial transactions were prohibited but
after the DMCA passed, then commercial and non-commercial actions were banned.
As the website predicts, DMCA may have been just the beginning of a hard-nosed
approach toward copyright, with the possibility of outlawing of peer-to-peer
networks in the future.
A few months after the
legislation was passed in February 2001, Robin D. Gross commented on DMCA. On imaginelaw.com, he wrote: “On the controversial Digital Millennium
Copyright Act (DMCA) took full effect, criminalizing the act of circumvention
of a technological protection system put in place by a copyright holder -- even
if one has a fair use right to access that information.”
Two years ago, the
Electronic Frontier Foundation wrote on DMCA as well. They wrote on its
unintended consequences, in an article titled “Unintended Consequences: twelve years under
DMCA” criticizing the law itself: “anti-circumvention provisions of the DMCA
have been invoked not against pirates, but against consumers, scientists, and
legitimate competitors…Section
1201 has been used by a number of copyright owners to stifle free speech and
legitimate scientific research…a number of prominent computer security experts
curtailed their legitimate research activities for fear of potential DMCA
liability…the movie studios effectively obtained a "stop the presses"
order banning the publication of truthful information by a news publication
concerning a matter of public concern...The DMCA, however, prohibits the
creation or distribution of these tools, even if they are crucial to fair
use...Until 2007, authorized digital music download services also utilized DRM
systems that frustrated fair use expectations, and technical restrictions
remain common for subscription services…The DMCA has frequently been used to
deter legitimate innovation and competition, rather than to stop piracy…The
DMCA's anti-circumvention provisions have also threatened to displace
"computer intrusion" and "anti-hacking" laws, something
that Congress plainly never intended…Years of experience with the
"anti-circumvention" provisions of the DMCA demonstrate that the
statute reaches too far, chilling a wide variety of legitimate activities in
ways Congress did not intend…hindering the legitimate activities of innovators,
researchers, the press, and the public at large.”
Panix.com takes a
different approach. They note that “Under the old pre-DMCA copyright law, buyers of books, albums, and movie
tapes had many rights
[called fair use]:
1. You may make
copies for your own use.
2.
You may lend books, albums, and movies to your friends. You may read a book aloud with your
children. You may invite friends over to
dance to the music of your album. You
may view your movie with friends. You
may stand in front of a room full of
students and read the book, and you and the students may talk about the book.
3.
If you are a library, you may buy one copy of a book, and lend it out for
free to anyone with a library card. You
may do the same with an album and also with a movie.
4.
You may make copies of parts of the book, the album, and the movie, in order
to discuss it, to make fun of it, and even incorporate the part in a new work.
5.
You may sell the book, album, or movie to anyone you wish.
6.
Any time you want to read the book, listen to the music, view the movie,
you may, without paying one cent more to the copyright holder. You may do these things as often as you
want.”
As you can see, the current approach to piracy
is not a good one. If the approach gets out of control with new laws such as
SOPA or PIPA it is possible that like Russian entertainment producers cited by Hollywood Reporter, the U.S. government will ask Facebook to take down
its copyrighted videos that are uploaded to its site. If the government doesn’t
ask, it could possibly forcibly shut down Facebook (or parts of it in
retaliation for non-compliance. In Spain a current law like SOPA is being proposed and it is unlikely what effect it will have but it
is almost certain that Big Music and the entertainment industry will use it in
their own efforts to push for more government control over the internet. Howard
Zinn writes in his book, A People’s
History of the United States quotes Grover Cleveland’s attorney general,
Richard Olney, talking about the Interstate Commerce Commission. Olney
explains: “The Commission…is or can be made, of great use by railroads. It
satisfies the popular clamor for government supervision of railroads, at the
same time that supervision is nominal…The part of wisdom is to not destroy the
Commission, but to utilize it.” The same is true today with the internet. If
the government regulated the internet, then it is possible that there would be
collusion with industry just like with the Interstate Commerce Commission. As questioncopyright.org points out, artists, software engineers and others
can still make money if there is more freedom of information like the ideas I
have proposed. Garden State Community College’s website it states: “There is a great deal of debate about
the DMCA and copyright law in the digital age. If you disagree with
the law, learn more about it and become involved in trying to change the law.”
I hope you follow that advice and try to change copyright law it for the
better, in a way that would benefit the citizenry at large, not the
entertainment industry since this issue will affect every person that uses the
internet.
By Burkely Herman, Chief Correspondent
