Wednesday, August 21, 2002

NET CLOSES ON NETHEADS?: Deputy Assistant (US) Attorney General John Malcolm has said that, were it not for Sep'ven, prosecutions of individual peer to peer music file swappers would have started already, and that the Department of Justice is preparing to send out a message that "Stealing is Stealing is Stealing." Congress has been pushing for the DOJ to use powers under the Clinton-era No Electronic Theft act (NET, see - geddit?) to bring individual users into court. This act is quite nasty, as it catches people who has infringed copyright for a financial advantage of $1000 in any 180 day period. Oh, and then redifines financial gain to include receiving items, including copyrighted works. So, basically, this is being set up so that you can be prosecuted for making your files available on the basis of the files you received through the system.
Obviously, this could get tortuous - firstly, there should be an onus of proof on the prosecutors to demonstrate the files that have come through a network were in direct payment for the files that the accused made available - this could be a stumbling block - will the prosecutors be able to show that Mr X's collection of MP3s were available on a filesharing system in order to reward people whose ripped tracks he was downloading?
Second, there's that the whole $1,000 value. The act defines this as "total retail value", but makes no attempt to clarify this further. So, will this be the total retail value of the tracks had they been purchased on CD? Or will it be a supposed cost had they been legal downloads? (In which case, the strangely high charges on Pressplay take on a somewhat sinister light - maybe the service isn't so much about testing markets as establishing a legal value for downloads?) See, if this was a simple case of flogging copies of Fleetwood Mac cds for cash out a suitcase, then the cash value would be simple. But it's easy to forsee any legal proceedings being caught in a long and winding argument over what the exact retail value of a single song is - and you hope that the RIAA's lawyers have clearly explained to the heads of the labels that the result might be awkward for them if it comes to be proven in court that the song part of a CD isn't very much of the total retail price. And does a deleted song from, say, Sleeper, have any retail value at all, if you couldn't buy it if you wanted?
Another nasty little pill in the NET act is that a convicted person will have the equipment used in the manufacture of the "stolen" items seized. Now, while you can see this being fair enough if we're talking about someone making dozens and dozens of CDs at a time for actual financial gain (as opposed to the act's definition of it) - sure, take their industrial sized equipment away. But if we're considering peer to peer users, what this means is removing their computers, modems and wherewithall. In the 21st century, this is the equivalent of forbidding people from communicating with others - a really dangerous act to embark upon.
As more than one person has pointed out, if file swapping is as widespread as the RIAA would have us believe, it's a brave government who sets out to prosecute millions and millions of its own citizens.
We'll smash your bottles and trash your stills [CNET] - "If we add in that tape of Frasier he borrowed off his mate, we're up to $997 - let's search again and see if we can find any tapes of the Top 40..."

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