Hollywood Walks Fine Line on Civil Liberties

Faced with increasing digital piracy, the entertainment industry has been frantically pushing legislation and filing lawsuits to stem the tide — and your civil rights may be suffering as a result.

In the past decade, owners of intellectual property have made a relentless push to conquer the gray areas of copyright law.

The Girl Scouts were sued for singing "Happy Birthday" without paying license fees. Disney got Congress to extend the standard term of copyright by 20 years. (Mickey Mouse was about to enter the public domain). Book publishers demanded that public libraries begin charging borrowers. A television executive said fast-forwarding through taped commercials was "stealing the programming."

As judges and politicians try to understand the confusing world of the Internet, the organizations that protect the interests of the entertainment industry are making a legal land grab.

The Recording Industry Association of America (search) and the Motion Picture Association of America (search) have silenced individuals, demanded consumers' personal information, tried to outlaw T-shirts and even made police-style "street busts" — all in the name of protecting copyrights.

Their main weapon has been the Digital Millennium Copyright Act of 1998 (search), which empowers copyright holders, not law enforcement authorities, to act against perceived thieves, or intended thieves, of intellectual property, often before any crime has been committed.

It was the DMCA that let the music industry force Internet service providers to give up the names of hundreds of Internet users, eighth-graders and grandmothers alike, so they could be sued for allegedly making large numbers of MP3 files (search) available for download.

The music industry also used the DMCA to sue a Princeton professor to stop him from publishing a paper on "cracking" encrypted CDs — after having asked him for his input on that very topic.

A Los Angeles street vendor who sold Spanish-language CDs was surprised to learn that the four men wearing black "RIAA" jackets who took away his merchandise, wrote down his name and told him he'd be in handcuffs next time were not in fact police officers.

From a civil-liberties standpoint, the most egregious example of DMCA abuse may have been the MPAA's unsuccessful lawsuit against a company that sold T-shirts — upon which was printed the computer code to write DeCSS (search), a free program that "cracks" DVD encoding.

Future legislation might be even more extreme. A law proposed in 2002 by Rep. Howard Berman, D-Calif., would permit copyright holders to disable file-sharing networks through Internet attacks, though the bill is crafted so that no damage to servers or personal computers would be allowed.

To civil libertarians, all of this is reason to sound the alarm.

"Digital-rights management today will become political-rights management tomorrow," said John Perry Barlow, director of the Electronic Frontier Foundation (search), former Republican Party activist and Grateful Dead lyricist. "This could be setting up the most efficient surveillance system the world has ever known."

Rich Taylor, a spokesman for the MPAA, scoffs at such charges.

"There's no desire to crush people's civil rights," he countered. "The DMCA is not something that was chiseled in some back room in Hollywood and thrust upon the populace. It was carefully contemplated and negotiated with Congress, the software industry, the music industry, librarians and ISPs."

In some respects, however, the entertainment industry's approach and attitude are radical. Taylor sees neither the DeCSS T-shirt, or third-party Web links that lead indirectly to the code, as speech protected by the First Amendment (search).

"Cleverness is not an excuse for breaking the law," he said. "When you publish the DeCSS code and make a link to it, you know what you're doing."

As to whether the code itself is harmful, Taylor is adamant.

"Publishing DeCSS code is like passing out codes to bank vaults, or nuclear launch codes," he said. "It's like handing out keys to people's houses."

Digital-rights activists counter that consumers buy those metaphorical houses in the form of retail DVDs and CDs, with which they can do what they will. Barlow nails down the philosophical difference at the heart of the argument.

"I don't think it's a property issue," he said of recorded entertainment. "It's a service — it's not similar to real estate, for the simple reason that you can have it, sell it and then still have it to sell again."

Recent developments indicate that authorities may be becoming less willing to let the entertainment industry redefine copyright law.

On Dec. 19, 2003, a federal appeals court ruled that the RIAA had no power to subpoena Internet-service providers for customers' names without a warrant. The chief judge noted in the decision that the music-industry lobby's argument that the DMCA enabled it to do so "borders upon the silly."

Three days later, a Norwegian appeals court upheld the hacking acquittal of "DVD Jon" Johansen, the teenager who wrote and distributed DeCSS, ruling that Johansen could do what he wanted with his own DVDs as long as he did not violate local copyright laws. The Norwegian government will not seek further appeals.

The entertainment industry may no longer need to be so heavy-handed. After a few years of decline, U.S. retail CD sales were suddenly back up in the third quarter of 2003. At the same time, a survey found a slow but steady drop in Internet music file-sharing over the entire year.

The record industry touted both statistics as proof its hardball tactics were working. Other observers noted that new, legal download alternatives and successful new artists may have contributed as well.

The motion-picture industry has mounted a public-relations, rather than a legal, offensive to stem the slowly growing amount of movies being swapped online. Gentle reminders not to steal may annoy moviegoers, but they're more pleasant than lawsuits.

After all, the entertainment industry also fought the introduction of cassette players, VCRs, digital audiotapes and CD burners. In each case it was unable to block technological advances, and in each case it survived and often prospered from the new devices.

Apple Computer's Steve Jobs, whose company created iTunes, the most successful of the legal Internet music stores, got to the heart of the problem in a recent Rolling Stone magazine interview.

"There's a lot of smart people at the music companies," said Jobs. "The problem is, they're not technology people."