You've heard of the Culture Wars that recently divided America into primary-colored states. These cases mark the start of the Download Wars, which will forever change the way we obtain and share music. One of the first warning shots was fired last year by Democratic U.S. Rep. Robert Wexler of Boca Raton, who along with the major record labels co-sponsored a bill to authorize copyright holders to disable PCs used for illicit file-trading. Wexler also serves on the House Judiciary subcommittee, which writes copyright laws. Needless to say, he's not on the side of your download-happy teenaged nephew.
What's happening in the Senate may be even more significant. Currently, senators are haggling over a bill, HR 4077 Substitute, that would make it easier to prosecute casual downloaders. Sponsored by Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont), this legislation is a bunch of stitched-together copyright-issue acts, some of which have already passed either or both houses of Congress. A few of the articles are harmless -- one would designate the oak our national tree -- while others are chilling. Chief in the latter category is the Piracy Deterrence and Education Act (PDEA).
"This is the almost worst possible bill," says Art Brodsky, communications director for Washington, D.C., digital rights organization Public Knowledge.
The PDEA aims to switch the onus of prosecuting file-swappers from Big Music and Hollywood to the U.S. government. So instead of filing suit themselves, these huge media companies would have your tax dollars pay the freight.
"The recording industry has this problem," says Jason Schultz, attorney for San Francisco technology liberties watchdog Electronic Frontier Foundation. "The people who are their biggest fans are also the people who they are the most mad at, because they're the ones downloading stuff. They've never figured out what to do with this problem, because they want to crack down and sue, but they also don't want to alienate them... So the solution they came up with was, 'Jeez, if we can find some way for the Justice Department to do our dirty work for us, we can crack down on Americans and they'll blame the government more than they'll blame us. '"
If passed, PDEA would mandate fines of up to $250,000 and jail stays of up to three years. And here's the kicker: The bill's language is incredibly vague, suggesting that "making available" or "offering for distribution" MP3s would constitute such an offense.
"'For distribution.' What does that mean? 'Making available.' What does that mean?" Brodsky asks. "These standards are very vague and could just as well include material on networks, on hard drives, whatever." And that's a thousand legally downloaded songs, like the ones that artists offer for free on their websites, or even those you buy from iTunes, if you were to either burn songs for friends or use the site's sharing feature to stream songs over a network. Not to mention all the people -- you know who you are -- who are still illegally downloading materials, like, oh, the new U2 album.
"If that's the standard, then you're criminalizing half the teenagers in America," Schultz says. "Do we really want to start filling our jails with teenagers who simply downloaded music?"
What do government goons get for assuming the task of prosecuting 12-year-old boys, 25-year-old indie rockers, and 84-year-old grandmothers? Well, for one thing, they get money. If the House follows the Senate in passing the Protecting Intellectual Rights Against Theft and Expropriation (PIRATE) Act, the Department of Justice will get a puny $2 million to take civil action against copyright infringers. But the PDEA recommends that the department get $15 million more for education and prosecuting purposes -- except the money would have to come out of its existing budget, which means it would be diverted from such unnecessary activities as fighting terrorism. What we have in the meantime is a terrible PR move that could send innocent people to jail, do harm to the economy, and divert the Justice Department's attention from more important matters.
In any event, downloading -- legal or otherwise -- isn't going away, even with such heavy-handed attempts to terrorize the participants. Keep your eye on this story, folks. The RIAA legal team might be coming to a laptop near you.