Pirates Of The Internet

Last month I attended a hearing of the senate judiciary Committee with an intriguing title: "The dark side of a bright idea: Could personal and national-security risks compromise the potential of peer-to-peer file-sharing networks?" I certainly was aware that some members of Congress wanted to snuff out the grass-roots phenomena of people's swapping copyrighted songs on the Net. But I assumed that the crime of file-sharing, joyfully committed by an estimated 60 million pirates, was mainly a problem of lost revenues for the music industry. Sen. Dianne Feinstein, giving the opening testimony, argued otherwise, calling file-sharing networks a grave security risk to this nation. In reality, the hearing was nothing but one of several signs of a new hardball offensive against file-sharing for the same old reasons: protecting the business model of the record labels.

What was the alleged national-security issue? Strictly yellowcake. Researchers testified that because of a confusing interface in file-sharing services like Kazaa, a clumsy user could inadvertently expose private files to everyone on the network. In theory, this could even happen to a government worker using Kazaa for personal use on an official computer--thus exposing our deepest secrets. No one was able to cite an instance where a government secret was actually exposed by this method.

By the end of the session, the only committee member in attendance, chairman Orrin Hatch--himself a songwriter who sells CDs on his personal Web site--zeroed in on what really bugged him: people sharing copyrighted songs on the Internet without paying for them. Then he ran an idea by one of the panelists: what if you had a system that could detect whether people were getting songs without paying for them and could warn those infringers that what they were doing was wrong? And then, if they didn't stop, the system would remotely "destroy" their computers.

"No one's interested in destroying people's computers," said the panelist.

"Well, I'm interested in doing that," said the senator. "Warn them, do it again, and then destroy their machine! There's no excuse for anyone violating our copyright laws."

Fortunately Senator Hatch hasn't yet codified his Dr. Strangelovean no-due-process piracy antidote into upcoming legislation. But in the House, Reps. Howard Berman and John Conyers have introduced a bill that encourages a different approach: jail 'em! Among other provisions, the bill lowers the bar for criminal prosecution to the sharing of a single music file and allocates $15 million to go after copyright offenders. Representative Berman says that he anticipates that prosecutors will go only after someone who, knowing the consequences, uploads massive amounts of music. But the bill says in black and white that if you share so much as a single tune with your pals on the Internet--as millions do every day--you are a felon. Penalty: up to five years in jail. (Better fill up your iPod before you go.)

Meanwhile the Record Industry Association of America, the trade and lobbying arm of the big music labels, last week sent out hundreds of subpoenas to Internet service providers and universities to find the identities of those sharing music so it can drag them into court and sue them for thousands of dollars. Is suing your customers the best way to run an industry?

My guess is that the vast majority of those 60 million file sharers would never steal a physical object from the store. In a mixture of self-interest and rebellion they've taken the measure of the record industry's karma (overpriced CDs, a history of ripping off artists), noted that stealing files isn't like stealing stuff (maybe they'll buy a disc later) and concluded that file-sharing isn't that bad.

Carey Sherman, president of the RIAA, and his buddies in Congress think the time for patience is over. "We've reached a point where we have a legitimate marketplace for downloading music, and we want to give it a chance," says Sherman, referring to the spiffy services like Apple's iTunes Music Store, the new Buy.Com store and subscription services like Rhapsody. But the game is just starting, and the best way to make sure that these services come up with compelling innovations is to match them off against the Kazaas of the world, which are far from perfect (the quality is erratic, they put spyware on your computers, they're loaded with porn). You can compete against free--ever hear of bottled water?

Ultimately the Internet is going to be great for music lovers, artists and even the record labels, if they are willing to hang loose while new business models emerge. But right now the RIAA and its congressional water carriers are hitting the wrong notes. It makes no sense to bring thousands of people into the dockets--and maybe the prison system--for turning on a friend to the fuzz tones of the White Stripes or the inspirational melodies of Orrin Hatch without a license. There are better things for prosecutors and the courts to focus on.

Like real national security.