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[DMCA-Activists] Gary Shapiro: P2P File Sharing is Legal and Moral
From: |
Seth Johnson |
Subject: |
[DMCA-Activists] Gary Shapiro: P2P File Sharing is Legal and Moral |
Date: |
Thu, 19 Sep 2002 05:11:48 -0400 |
(This essay hits many very effective points. One of the key
things that needs to be borne in mind is the fact that
technological proposals currently on the table are
implementations of the notion, foreign to American society
and jurisprudence, of creators' "moral rights" -- a term
basically saying that creators dictate how information may
be used. This essay clearly represents a very significant
step forward in the discourse. Forwarded from POLITECH. --
Seth)
-------- Original Message --------
Subject: FC: CEA's Gary Shapiro: P2P file swapping is both
legal and moral
Date: Wed, 18 Sep 2002 22:35:19 -0700
From: Declan McCullagh <address@hidden>
To: address@hidden
Some background:
http://www.ce.org/press_room/press_release_detail.asp?id=10027
http://www.ce.org/press_room/speech.doc
http://news.com.com/2100-1023-958324.html?tag=cd_mh
File photo:
http://www.mccullagh.org/image/d30-25/gary-shapiro.html
-Declan
---
Speech by Gary Shapiro, President and CEO of the Consumer
Electronics Association.
The Campaign to Have Copyright Interests Trump Technology
and Consumer Rights
We are at a critical juncture in history when the inevitable
growth of technology is conflicting with the rising power
and strength of copyright owners. How we resolve this
tension between copyright and technology will define our
future ability to communicate, create and share
information, education and entertainment.
Today I would like to share with you my views on this
situation and the questions we must confront as we wind
through this confusing, but historic maze.
There is no doubt that this eras rapid shift to digital and
other technology is changing the rules of the game.
Reproduction, transmission and storage technology all are
progressing exponentially, resulting in an unprecedented
power to copy, send and save all forms of media.
Reproduction technology has become incredibly cheap and
reliable. Transmission technology, including satellite,
cable, broadcast, wired or wireless, and often connecting
through the Internet, has linked everyone at ever
increasing speeds and competitive pricing. Storage
technologies also quickly have expanded in capacity as
total storage media costs have plummeted.
With each new technology, the fears of the music and motion
picture industries have grown. With television and the VCR,
it was going to be the end of movies. With CDs and
cassettes, it was the supposed harm from real-time
transfers and one-at-a-time copies. Todays technologies
make these perceived threats seem naïve and harmless. With
high-speed connectivity and the Internet, its not buying a
CD and making a copy for a friend; its downloading from a
stranger or making available thousands of copies with the
touch of a keystroke.
The growth of reproduction, storage and transmission
technology has terrified copyright owners. The RIAA claims
that 3.6 billion songs are downloaded each month. The RIAA
also estimates that $4.5 billion has been lost by the music
industry due to pirating. And the motion picture industry
also sees the writing on the wall. Fox Group CEO and News
Corp. President Peter Chernin in an August 21 keynote
speech at an Aspen conference claimed that Spiderman and
the latest Star Wars movie were downloaded four million
times following the weekend after their release.
Based on these and similar threats the content community has
gone on a scorched earth campaign attacking and burning
several new recording and peer-to-peer technologies. They
have used the Congress, media and courts to challenge the
legality of technology and morality and legality of
recording. In the same Aspen speech, Chernin attacked
computers as untrustworthy and the Internet as primarily
used for pornography and downloading.
I believe that hardware and software companies have a mutual
interest in working together, so that they can sell more
products. For years, consumer electronics companies have
been working with both the recording and motion picture
industries on developing technological measures that meet
the needs of both industries. For instance, the DVD
standard includes anti-copying protection. It also includes
an anti-fast forward technology designed to ensure
copyright warnings are shown, but instead is being used to
require consumers to sit through movie previews. CE
companies also have provided digital interfaces that allow
consumers to share content among their own devices while
restricting unauthorized redistribution to the Internet. By
protecting content at the source, content providers can be
assured their intellectual property rights are respected,
while consumers can enjoy unimpeded personal use. However,
source protection should not be used to mislead consumers
to purchase CDs that can only be played on certain CD
players.
Indeed, despite the cooperative efforts, the copyright
community has declared war on technology and is using
lawsuits, legislatures and clever public relations to
restrict the ability to sell and use new technologies.
Lawsuits have shut down file-sharing services like Napster
and Aimster, and threaten peer-to-peer networks like KaZaa
and Morpheus. They unsuccessfully challenged the legality
of MPs recorders in the Diamond Multimedia case. They have
challenged as illegal ReplayTV, a TIVO-like device, which
allows television programming to be sorted and stored on a
hard disc and which allows a consumer to skip commercials.
In fact, one TV executive equated the skipping of
commercials as stealing free broadcast television. The
RIAA has announced that it will start suing individuals who
engage in file sharing and has subpoenaed Internet access
provider Verizon to identify a downloading subscriber.
At the urging of the content community, Congress has stepped
into the act. Legislation has been introduced which
requires all technologies to be shaped by a
government-mandated copy protection system. Other
legislation allows any copyright owner to seek and destroy
the posting of copyrighted products on P2P networks via
personal computers connected to the Internet. Still other
legislation would allow a content owner to insert an
embedded watermark into the work to determine if there was
infringement and, at the content owners discretion,
disable the device, even if, upon subsequent determination,
the use was lawful.
The most recent and scary development is that the United
States Department of Justice is threatening to jail
millions of Americans who use file- sharing services. In a
presentation at the Progress and Freedom Foundations Aspen
Summit on August 21, Deputy Assistant Attorney General John
Malcolm said that peer-to-peer sharing is piracy and a
criminal offense.
With this pronouncement, along with similar euphemisms by
the media, it is clear that the copyright community has
reshaped the debate. All of a sudden, the downloading of a
song to sample an artists wares, behavior most Americans
between 13 and 25 engage in regularly, has been likened to
a criminal act.
Consider the clever public relations campaign of the content
community. Theyve changed the simple language that
describes the acts at issue. It used to be called taping,
reproducing or downloading, and advocates on both sides
would call it unauthorized reproduction or unauthorized
taping. Then somehow this use of technology shifted to the
more pejorative and sinister copying. The word copying
sounds bad. It got you in big trouble in high school on a
test. Copying is a sister to plagiarism which is
especially bad.
But in the past few months, Hollywood and the music industry
have shifted to different words. They now only talk about
downloading as piracy. They call it stealing and always
use analogies to shoplifting products out of a store. The
Justice Department has adopted this approach. Stealing is
stealing is stealing, said Malcolm in Aspen.
At the same conference, Chernin echoed these themes and used
the words piracy, shoplifting and stealing repeatedly
to describe downloading. He even declared that those who
disagree with his views on copyright are either amoral or
self-interested.
Another way copyright owners have distorted the debate is to
tie in downloading with our national goal of broadband
deployment. They argue that broadband demand will not grow
until this issue is resolved. Indeed, Senators Hollings
legislation is called The Consumer Broadband and Digital
Television and Promotion Act. Yet broadband deployment has
little to do with songs and movies, and more to do with
fast Internet speed, always- on convenience, exchanging
home videos, interactivity on the web and a range of
potential uses for education, medicine, business, shopping
and gaming. Yet, some legislators have become confused and
convinced by Hollywood that there is a connection between
broadband and copyright.
A third way that the copyright community has reshaped and
redefined the debate is almost biblical in its reach. The
entire theme of the copyright community is that downloading
off the Web is both illegal and immoral.
But is it either? I submit it is neither.
Despite the assertions of the Justice Department,
downloading is not illegal.
First, fair use rights are guaranteed to consumers by
statute, and applied judicially on a case-by-case basis.
This means that, while some consumer practices ultimately
could be adjudicated as either fair use or infringement,
there is scant basis for challenging them as criminal.
The music and film industries claim that there is no such
thing as fair use "rights" in an attempt to disparage the
term. They say that fair use is only an affirmative defense
to copyright infringement and therefore not a right. But
various recognized "rights" only may be asserted as
affirmative defenses in a lawsuit. For example, in a
slander suit, one may assert the First Amendment right but
only as an affirmative defense; this does not diminish the
fact that the right exists.
Second, time after time, practices of individuals that were
initially equated with "piracy" or "theft" have been shown
to be neutral or beneficial to copyright owners, and have
either been tolerated or accepted as fair use. Think of the
VCR and the Supreme Court decision holding that its use to
tape full movies is fully legal.
Third, the 1997 NET Act's requirement of a total retail
value of $1,000 per infringement should be taken seriously
as a barrier to bringing cases against ordinary consumers.
This law should not be re-interpreted, after the fact, as a
criminal enforcement vehicle against consumer-to-consumer
recording and "swapping" practices.
Downloading is not immoral either. To make downloading
immoral, you have to accept that copyrighted products are
governed by the same moral and legal principles as real
property, thus the recent and continuous reference by the
copyright community to label downloading as stealing. But
the fact is that real and intellectual property are
different and are governed by different principles.
Downloading a copyrighted product does not diminish the
product, as would be the case of taking and using tangible
property such as a dress. At worst, it is depriving the
copyright owner of a potential sale. Indeed, it may be
causing a sale (through familiarity) or even more likely,
have no impact on the sale. My son often will become
familiar with artists through downloading their music on the
Internet and then go out and buy the CD.
The comparison to real property fails for several other
reasons. Real property is subject to ownership taxes. Real
property lasts forever and can be owned forever. A
copyright can be owned only for a limited period of time.
Indeed, the United States Constitution declares this. More,
copyright law must bow to the First Amendment that
expressly allows people to use a copyrighted product
without the permission of the copyright owner. This concern
contributes to the statutory and judicial concept of fair
use. The First Amendment includes, not only the right to
send, but also the right to receive. Indeed, in 1984, the
U.S. Supreme Court in declaring the VCR a legal product,
said that it could be okay to copy an entire copyrighted
product. So if the Supreme Court expressly held that VCR
copying in the home for non-commercial purposes is a legal
activity, how is it suddenly labeled as piracy because
the device is a computer?
The major record labels concede that they totally have
failed to transform their business models in response to
the Internet. But then they whine that they cannot compete
with free, referring to the free downloading the Internet
allows. While I am sympathetic to the radical shift of
selling a CD with a one good song for $20 to a marketplace
where consumers pick and choose which songs they want, I am
not sure this is the correct approach. For one thing, you
can compete with free. Purveyors of bottled water do it.
America Online does it. Book retailers do it with libraries.
Independent online music services say they can do it, if
they can clear the rights.
The Beatles 1 album, which contained 30-year-old songs that
could have been downloaded for free from Napster-like
services from day one, but nevertheless sold some 26
million copies. Why? Because people were willing to pay for
the quality of a CD over the often barely acceptable sound
quality of a download using P2P services.
Of course, recording artists must make a living and should
be paid. Most consumers likely would pay a reasonable
amount for quality downloads, access to full catalogs and
maybe some promotional items such as concert tickets or
hidden tracks on a CD. Artists even can get new revenue from
the Internet by identifying their fans and promoting their
concerts, new releases and other products. But the music
industry has made little effort to look at new business
models or provide a viable and attractive alternative to
the downloading services.
The recording industry and motion picture industry should
stop complaining so much and look for technological
solutions to its own problems. Doesnt it make more sense
to protect content at the source, using technologies that
maintain consumer expectations for personal use? Content
providers would be served better by working with technology
companies to deploy these solutions rather than suing
everyone and lobbying Congress to legislate unreasonable
and consumer-unfriendly mandates.
Despite a lack of hits and a recession, music and movie
sales are holding their own. Compare this to real downfalls
in other sectors from telecommunications to IT to
broadcasting, and you must ask yourself if the Internet is
actually a good thing for the copyright community.
So where does this lead us? I submit that policymakers
should follow some basic principles:
First, do no harm. If we had previously heeded the concerns
of the creative community, we would have no radio, no TV,
no VCR, no computer, no e-mail and no Internet. Yet each of
these technologies has enhanced the revenue stream for
copyright owners.
Second, advances in technology should not be restricted. We
cannot even imagine today what future advances we will
choke off if we artificially restrict technology. If we can
envision technology connecting the poorest in the world to
medical information, to education and to a better quality
of life, we should be careful about stifling its growth.
Advances in technology also can supply tools to content
providers to help them manage digital rights in a manner
that takes into account consumers expectations.
Third, claims of harm should be greeted with great
skepticism. Not every recording is a lost sale. It actually
may represent a stream of future sales. Artists from Chuck
D to Janis Ian to Courtney Love support home recording
rights for practical business reasons.
Fourth, copyright owners have a high burden of proof before
any technology should be restricted. Broadcasters and the
motion picture industry have come close to making the case
that redistribution of free, over-the-air broadcast
television over the Internet is harmful to the concept of
free over- the-air broadcasting. This is an area where
careful legislation or regular legal review, respectful of
consumer rights and expectations, may be appropriate.
Fifth, copyright owners should continue developing ways to
protect their content at the source, rather than insisting
that the burden should be on the device that plays it.
Perhaps they should consider a more flexible business model
that focuses on keeping honest people honest. But, the
corollary here is dont sell CDs that dont work on many CD
players.
Finally, any restrictions on technology should be narrowly
crafted, define limitations on abuse by copyright owners
and define legitimate consumer recording rights and
expectations. For example, CEA supports the distance
education bill presented by Congressman Darrell Issa of
California and Rick Boucher of Virginia that addresses a
specific IP concern rather than attempting to legislate
through a one-size-fits-all approach. The Boucher- Issa
bill reaffirms fair use rights and would amend the Copyright
Act to ensure educators can use PCs and new technology to
foster distance learning.
The collision course between copyright owners desire to
preserve existing business models and the inevitable
development of newer, better, faster and cheaper
technologies need not be fatal. Our future is bright if we
resist the temptation to restrict technology. Digital
technology will foster a Renaissance of creativity. It will
connect our world and soon allow everyone to have low-cost
access to information, entertainment and education. If the
play button becomes the pay button, our very ability to
raise the worlds standard of living and education will be
jeopardized.
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