This scenario may sound ridiculous, even by George Orwell's standards. And yet, if certain members of Congress and their deep-pocketed allies in Big Media have their way, it could soon become reality. The Senate is haggling over a bill, HR 4077 Substitute, sponsored by Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont), that 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 horrifying. Chief in the latter category is the Piracy Deterrence and Education Act (aka PDEA, the original HR 4077).
"This is the almost-worst-possible bill," says Art Brodsky, communications director for Public Knowledge, a digital-rights organization in Washington, D.C. (Worst possible, Brodsky believes, is the IICA Act, which we'll get to later.)
The PDEA aims to switch the onus of prosecuting file-swapping peer-to-peer users from Big Music and Hollywood to the U.S. government. So instead of suing file-swappers themselves, these huge media companies would let the government -- and your tax dollars -- take over.
"The recording industry has this problem," says Jason Schultz, attorney for the Electronic Frontier Foundation (EFF), a technology-liberties watchdog based in San Francisco. "The people who are their biggest fans are also the people 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.'"
Not accustomed to doing anything half-assed, the recording industry also encouraged the government to crack down on offenders like a sledgehammer, suggesting fines of up to $250,000 and jail stays of up to three years. And here's the kicker: The PDEA's language is incredibly vague, indicating that the "making available" or "offering for distribution" of 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 we're talking about legally downloaded songs, like the ones that artists offer 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 leaked new U2 album.
"If that's the standard, then you're criminalizing half the teenagers in America," Schultz says.
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 Act (SB 2237, aka PIRATE), the Department of Justice will get a puny $2 million to take civil action against copyright infringers. But the PDEA recommends that the department should get $15 million more for education and prosecuting purposes -- except that the money would have to come out of its existing budget, which means that it would be diverted from such unnecessary activities as, say, fighting terrorism.
These issues are even more prevalent in the case of the aforementioned worst-case scenario: the Inducing Infringement of Copyrights Act (SB 2560, formerly known as INDUCE, now IICA), which dropped off the Senate calendar in early October but is expected to be retooled for next year. Introduced by the ubiquitous Senator Hatch (who, according to Congressional newspaper The Hill, has sponsored more unconstitutional laws than any of his peers), IICA would've made any company that induced -- or promoted the inducing of -- copyright infringement liable for that transgression. Therefore, not only would VCR, TiVo, and CD-burner manufacturers be running scared, but future innovators would think twice before stepping into this legal minefield. And anyone who writes about such companies favorably, writes positive articles about users of their products, or recommends that people engage in such activities would be liable.
Under such vague language, magazines, newspapers, websites, artists, or labels seen as endorsing file-swapping could be sued. "It's a really dangerous thing in its current form," says Kevin Arnold, founder of San Francisco's Independent Online Distribution Alliance (a digital-music distributor for indie artists and labels) and the Noise Pop Festival.
Thankfully, the opposition to IICA was overwhelming, including such large companies as Yahoo, Verizon, Texas Instruments, Google, Intel, Sun Microsystems, and MCI, as well as such constitutional watchdogs as EFF and the American Library Association. It didn't hurt that Hatch decided to use the bill also to harp against the evils of downloadable pornography, always the last tactic of a desperate politician. Then again, perhaps it was a ruse. "There's also a theory that INDUCE was a red herring put out there to distract attention away from PDEA, while they push that thing through," Arnold says.
In any event, downloading -- legal or otherwise -- isn't going away, even with such heavy-handed attempts to harass the participants. But one of the most bizarre things about these bills is that from a policy standpoint, they're completely unnecessary. "The RIAA lawsuits are actually making money for the record companies," Schultz points out. "They're actually bringing in more money than it costs them to file the lawsuits. So there's no reason they can't simply file more and step up their own enforcement. There's no need for the Justice Department to intervene at all."