«Hal Abelson Ken Ledeen Harry Lewis Upper Saddle River, NJ • Boston • Indianapolis • San Francisco New York • Toronto • Montreal • London ...»
Blown to Bits
Your Life, Liberty,
and Happiness After
the Digital Explosion
Upper Saddle River, NJ • Boston • Indianapolis • San Francisco
New York • Toronto • Montreal • London • Munich • Paris • Madrid
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Library of Congress Cataloging-in-Publication Data:
Blown to bits : your life, liberty, and happiness after the digital explosion / Hal Abelson, Ken Ledeen, Harry Lewis.
ISBN 0-13-713559-9 (hardback : alk. paper) 1. Computers and civilization. 2. Information technology—Technological innovations. 3. Digital media. I. Ledeen, Ken, 1946- II. Lewis, Harry R. III. Title.
QA76.9.C66A245 2008 303.48’33—dc22 Copyright © 2008 Hal Abelson, Ken Ledeen, and Harry Lewis This work is licensed under the Creative Commons Attribution-Noncommercial-Share Alike
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Balance Toppled Who Owns the Bits?
Automated Crimes—Automated Justice Tanya Andersen was home having dinner with her eight-year-old daughter in December 2005 when they were interrupted by a knock at the door. It was a legal process server, armed with a lawsuit from the Recording Industry Association of America (RIAA), a trade organization representing half a dozen music publishers that together control over 90% of music distribution in the U.S. The RIAA claimed that the Oregon single mother surviving on disability payments owed them close to a million dollars for illegally downloading 1,200 tracks of gangsta rap and other copyrighted music.
Andersen’s run-in with the RIAA had begun nine months previously with a “demand letter” from a Los Angeles law firm. The letter stated that “a number of record companies” had sued her for copyright infringement and that she could settle for $4,000–$5,000 or face the consequences. She suspected the letter was a scam, and protested to the RIAA that she had never downloaded any music. Andersen repeatedly offered to let the record companies verify this for themselves by inspecting her computer’s hard drive, but the RIAA refused the offers. At one point, an RIAA representative admitted to her that he believed she was probably innocent. But, he warned, once the RIAA starts a lawsuit, they don’t drop it, because doing so would encourage other people to defend themselves against the recording industry’s claims.
Andersen found a lawyer after the December lawsuit was served, and they convinced a judge to order an inspection of the hard drive. The RIAA’s own expert determined that Andersen’s computer had never been used for illegal 196 BLOWN TO BITS
26,000 Lawsuits in Five Years The RIAA has filed more than 26,000 lawsuits against individuals for illegal downloading since 2003. The process begins when MediaSentry, RIAA’s investigative company, logs into a file-sharing network in search of computers hosting music for download. MediaSentry connects to these computers and scans them for music files. When it finds something suspicious, it sends the computer’s IP address to the RIAA’s Anti-Piracy group, together with a list of the files it found. RIAA staff members download and listen to a few of these to verify that they are in fact copyrighted songs. Then they file a lawsuit against “John Doe,” the person who uses the computer at the offending IP address. (See the Appendix for an explanation of IP addresses and other aspects of Internet structure.) With the lawsuit as a legal basis, they subpoena the computer’s Internet Service Provider, forcing disclosure of the real name of the John Doe user at that IP address. The RIAA sends the user its demand letter, naming the songs that were verified and citing the total number of songs found as the basis for damages. The letter offers an opportunity to settle; the average settlement demand is about $4,000, non-negotiable. There’s even a web site, p2plawsuits.com, which users can visit to pay conveniently.
It’s an automated sort of justice for the digital age. But these are automated sorts of crimes. File-sharing programs are commonly configured to start up and run automatically, exchanging files without human intervention.
CHAPTER BALANCE TOPPLEDThe computer’s owner may not even be aware that it has been configured to upload files in the background.
It’s also an error-prone form of justice. Matching names to IP addresses is unreliable—several computers on the same wireless network might share the same IP address. An Internet Service Provider allocating IP addresses might shift them around, so that a computer with a particular IP address today might not be the same computer that was file sharing from that IP address last week. Even if it is the same computer, there’s no way to prove who was using it at the time. And maybe there was a clerical error in reporting.
The RIAA knows that the process is flawed, but given their stake in stopping downloading, they see no choice. Not only are they seeing their products being distributed for free, but they themselves might be liable to lawsuits from artists for neglecting to protect the artists’ copyrights. Explains Amy Weiss, RIAA Senior Vice President for Communications, “When you fish with a net, you sometimes are going to catch a few dolphin…. But we also realize that this cybershoplifting needs to stop.” Besides Andersen, other snared “dolphin” included a Georgia family that didn’t own a computer, a paralyzed stroke victim in Florida sued for files downloaded in Michigan, and an 83-year-old West Virginia woman who hated computers and who, as it turned out, was deceased.
a pre-networked world colliding with the exponentials of the digital explosion. Take the $3-million iPod. This traces to the Copyright Act of 1976, which introduced a provision letting copyright holders sue for minimum statutory damages of $750 per infringement.
The rationale for statutory damages is to ensure that the penalty is sufficient to deter infringement even when actual damages to the copyright holder are small. The scale of the damages has dreadful consequences in the age of digital reproduction, because each time a song is copied (uploaded or downloaded), it counts as a separate infringement. That way of reckoning “acts of infringement” may have seemed reasonable when the standards were set in pre-Internet 1976—when people could make only a few unauthorized copies, one by one. But the damage calculations balloon into unreality when a thousand songs can be downloaded to a home computer in a few hours over a high-speed network connection.
Although the digital explosion may have blown the legal penalties for infringement out of realistic proportion to the offense, it has also brought a more fundamental change: that the public is now concerned with copyright at all. Before the Internet, what could an ordinary person do to infringe copyright—make fifty photocopies of a book and sell them on the street corner?
That would surely be infringement. But it would also be a lot of work, and the financial loss to the copyright holder would be insignificant.
Of all the dislocations of the digital explosion, the loss of the copyright balance is the most rancorous. Ordinary people can now effortlessly copy and distribute information on a massive scale. Listeners clash with a content industry whose economics relies on ordinary people not doing precisely that. As a
SENDING MESSAGEA In October 2007, Jammie Thomas, a Minnesota single mother of two who earns $36,000 a year, was found guilty of sharing 24 songs on the Kazaa filesharing network … and fined $222,000: $9,250 per song. This was the first of the RIAA’s 16,000 lawsuits that went all the way to a jury trial. In the others, people settled or, as with Tanya Andersen, the case was dismissed or dropped.
Given the legal statutory damages for infringement, Thomas’s fine for 24 songs could have been anywhere between $18,000 and $3.6 million.
A juror interviewed afterward reported that there were people advocating for fines at both ends of that spectrum during deliberation: “We wanted to send a message that you don’t do this, that you have been warned.” Said the RIAA’s lawyer after the verdict was read, “This is what can happen if you don’t settle.”
CHAPTER BALANCE TOPPLEDresult, millions of people are today vilOf all the dislocations of the ified as “pirates” and “thieves,” while digital explosion, the loss of content providers are demonized as the copyright balance is subverters of innovation and consumer the most rancorous.
freedom trying to protect their outdated business models.
The war over copyright and the Internet has been escalating for more than 15 years. It is a spiral of more and more technology that makes it ever easier for more and more people to share more and more information. This explosion is countered by a legislative response that brings more and more acts within the scope of copyright enforcement, subject to punishments that grow ever more severe. Regulation tries to keep pace by banning technology, sometimes even before the technology exists. Single mothers facing mind-numbing lawsuits are merely collateral damage in that war today. If we cannot slow the arms race, tomorrow’s casualties may come to include the open Internet and dynamic of innovation that fuels the information revolution.