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A Rational Advocate
"The most formidable weapon against errors of any kind is reason"


The 4th Amendment to the U.S. Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

Recently Representative Howard Berman, Democrat from California, introduced HR5211,a bill to indemnify holders of copyrights on files who use technological means to enter one's Computer and disable the use of such files. This can be likened to the legal system allowing someone to enter your home without a warrant and without fear of prosecution.  Under the bill's provision a copyright holder would not have to notify the Court the details of files to be targeted.  Should any  of the user's files be damaged or deleted the user's only alternative would be to submit a claim to the authorities if an economic loss of more than $50 was incurred for them then to pursue adjudication.  In other words the user is guilty until proven innocent. This in a country where we pride ourselves in the fact that one is innocent until proven guilty!  One would think that at least a Warrant would be required to identify the file and then a Court proceeding would ensue to determine the validity of their claim.  This law, as written, clearly violates the 4th Amendment.  One would hope that other members of Congress would surely see this.

Of course this has all come about because of the advent of Internet file swapping, whether it be music, movies, literature, reproductions of paintings and the like.  Primarily it is the entertainment industry that feels that their copyrights are being violated and is behind this legislation.  This isn't the first time they have attempted to prevent the copying of merchandise offered to the general public for sale.

With both the advent of Audio Tape Recording and then Video Tape Recording they attempted to prevent the copying of  not only for sale tape recordings by artists but also the recording of over the air (Radio and TV) broadcast of those recordings.  They were unsuccessful with coming up with any meaningful method to prevent copying finally realizing that this copying really did not have any substantial effect on their profits but, in some respects, actually gained them business by way of introducing their products to a wider audience and market.  In regard to Video Tapes of Movies the fact is that the low cost of renting a movie deters one from going to the trouble of going through the time and effort required to copy a tape.

Now to the case of file swapping. The most well known provider of means for files to be swapped was Napster whom was found guilty of violating the Copyright laws by a lower court after being sued by members of the entertainment industry and essentially shut down.  The method offered by Napster was one where the swapped files went through a Central File Server and thus the files were in the possession of Napster for a period of time making them in essence a distributor of the files.  Others now offer file swapping programs that simply facilitate the actual swapping directly from one user to another.  Their have been lawsuits already in process and it will be interesting to see the legal rulings that ensue.

In my opinion, if there is any guilt in file swapping it is with the facilitators and not with the users.  Why?  In a free market system that is part and parcel of the freedom guaranteed under the Constitution, individuals are free to acquire that which is offered them at whatever price they choose to pay.  In fact, file swapping provides a means of providing competition to the original producer's non-market determined prices where none previously existed.  It stands to reason that if this practice is judged to be illegal then any involved guilt should be with the offerer not the consumer.  In addition, does one copying a file from another person offering to share that file, even though it is copyrighted, committing a crime?  If my married daughter comes to visit and presents me with a copy of one of her copyrighted Computer Programs is she or I guilty of a crime?  In both cases there has been no money exchanged and the exchange was done freely in a free market society.  Whether in either case the file or program would have been purchased by the recipient is academic.  No money was exchanged and hence there should be no guilt.  Even if the law was to judge that guilt was involved how likely is it that such guilt would ever be prosecuted considering the fact that this is not only common practice but virtually impossible to discover in order to prosecute?

It appears that there are few people of note that have looked at the Entertainment Industry, specifically the Recording Institute Association of America (RIAA) and the monopoly they have held for years on the method of acquiring the copyrights they are so eager to protect.  However, there is one.  Recently singer Courtney Love stated the following,

"When you look at the legal line on a CD, it says copyright 1976 Atlantic Records or copyright 1996 RCA Records. When you look at a book, though, it'll say something like copyright 1999 Susan Faludi, or David FosterWallace. Authors own their books and license them to publishers. When the contract runs out, writers get their books back, but record companies own our copyrights forever."

So when Representative Berman talks about the piracy of copyrights it would appear justifiable to include the piracy by the RIAA of the very same works of the artists for which they now want to condemn the piracy of for their own interest.

Pure and simple, this is really about monopolistic control over the artist and consumer by pricing, at their discretion rather than that of the free market, and delivering the artist's work as they wish in order to avoid competition.  Ed Black, president and chief executive of the Computer and Communications Industry Association recently stated the following,

"We reject the premise of this bill that content owners should be entitled to 'vigilante justice' for suspected
copyright violations, Hollywood moguls have long railed against illicit tampering with their protected content by 'hackers' and 'Internet pirates'. Now the Hollywood studios and the recording industry seek statutory authority for their own hacking, spoofing, and  virus attacks, with the capability to shut down many Internet websites and services at their discretion."

Berman's bill follows a previous action supported by the RIAA strengthening their control over the works of artists. Last November a 'technical amendment' was added to a bill that defined recorded music as 'works for hire' under the 1978 Copyright Act.  Under the 1978 Copyright Act, artists could reclaim the copyrights on their work after 35 years. This then allowed the family of the artist to at least get it back at a future time.  With this new provision in the Copyright Act the copyright holder (RIAA) can profit on the artists work forever.

Courtney Love had some other things to say about the file swapping of music as follows,

 "It's not piracy when kids swap music over the Internet using Napster or Gnutella or Freenet or iMesh or beaming their CDs into or music locker.  It's piracy when those guys that run those companies make side deals with the cartel lawyers and label heads so that they can be 'the labels' friend', and not the artists.

Recording artists have essentially been giving their music away for free under the old system, so new technology that exposes our music to a larger audience can only be a good thing. Why aren't these companies working with us to create some peace?

There were a billion music downloads last year, but music sales are up. Where's the evidence that downloads hurt business? Downloads are creating more demand.

Why aren't record companies embracing this great opportunity? Why aren't they trying to talk to the kids passing compilations around to learn what they like? Why is the RIAA suing the companies that are stimulating this new demand? What's the point of going after people swapping cruddy-sounding MP3s? Cash! Cash they have no intention of passing onto us, the writers of their profits.

Somewhere along the way, record companies figured out that it's a lot more profitable to control the distribution system than it is to nurture artists. And since the companies didn't have any real competition, artists had no other place to go. Record companies controlled the promotion and marketing; only they had the ability to get lots of radio play, and get records into all the big chain store. That power put them above both the artists and the audience. They own the plantation."

Despite this justification for supporting the swapping of music files the fundamental reason Berman's bill should be scuttled immediately, if not sooner, is that it is unconstitutional.

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