Darknet Blues

The Music Industry Makes Peace With Big Software—at Dial-Up Speed

"It's a system that's ripe for abuse," says von Lohmann. "People who are identified receive no notice that that's how their name was discovered, so if a private investigator or a stalker gets your name and address, you won't know to go back and ask your ISP. It's an enormous risk to consumer privacy and anonymity. Even if this is what Congress intended, Congress acted unconstitutionally. Why should it be easier for the recording industry to violate your anonymity, with less cause, then anyone else?"

The record labels aren't relying solely on the courts. They've experimented with ways to "spoof" file-traders by flooding networks with bogus files. They've promoted legislation that would permit them to jam transmissions to and from a computer suspected of trading illicit files. And they've continued to turn colleges into online traffic cops. The University of Wyoming now stores a copy of everything that travels over its computer network, including e-mail. Arizona State University recently yanked the Internet privileges of an honors student who downloaded Animal House. "I don't think it's part of any educational institution's mission to teach students to steal," bristles Bob Kruger, enforcement chief for the Business Software Alliance, a trade group that partners with the RIAA to fight piracy. "That really pisses me off."

Senator Fritz Hollings of South Carolina is the unlikely matchmaker here. In an attempt to encourage the development of broadband entertainment by ending years of bickering between the entertainment and computer companies, Hollings introduced legislation in 2002 that gave the two industries a year to agree on anti-piracy measures or face government-mandated solutions. The scare tactic worked. In a move calculated to coincide with the new congressional session in January, the RIAA, BSA, and the Computer Systems Policy Project announced an agreement on "core principles" for their lobbying efforts. The record companies won't support any Hollings-style legislation, and the computer groups won't support legislative attempts to weaken the DMCA (there have been at least three so far).

The agreement creates some odd political alliances. When Napster was a hot issue, Republicans usually took the computer industry's side, while the music business, like Hollywood, has typically relied on the Democrats. But this agreement echoes the nearly identical principles of the Alliance for Digital Progress, a new lobbying group led by Fred McClure, a legislative adviser for Reagan and the first Bush who pulled major strings for John Ashcroft's nomination.

Strange bedfellows aside, what's most important about this agreement is who was invited to the table: the CSPP, comprising eight corporations with heavy interests in information technology, and the BSA, widely regarded as the political arm of Microsoft. In other words, the music industry is throwing in its lot with Big Software, another sign that anti-piracy protection and enforcement will remain its highest priority. This union with Big Software does make a certain amount of sense, given the software industry's innovative methods of fighting piracy of its own products, such as giving away programs that require payment for continued use after a certain date.

But the agreement pointedly excludes other parties who could help lure downloaders back into the marketplace. These include service providers, consumer electronics companies, Internet trade organizations that want the music industry to license its content to more online merchants, and consumer groups working to protect fair use. Needless to say, this disconnect has a long history. Last year, for example, Macintosh users were surprised to discover that playing Celine Dion's A New Day Has Come in a Mac CD drive made their computers blow up. Apple refused to provide tech support, ostensibly because the discs carried a label that warned they weren't playable on PCs or Macs. "Apple was essentially saying, 'If you stuck a tuna sandwich in your CD drive, we wouldn't fix it, because you fucked up,' " says Chris Murray of the Consumers Union. "They were trying to send a global message that they weren't going to bear the burden of an industry that was screwing the consumer." Its support of Apple's new online service notwithstanding, the music business still has trouble heeding this message. The March issue of Harper's reprints a hilariously unrepentant response from EMI to someone who wrote to complain that his new Toto CD wouldn't play on his computer or DVD player. It ended: "We will do everything in our power whether you like it or not."

Companies like Apple and Verizon believe they shouldn't be expected to police behavior that wouldn't need policing if there wasn't Prohibition out there. But what might such a world look like? Desperate to speed up the development of a vibrant online music business, Verizon is among the leaders in calling for a "compulsory license" for digital music, meaning the labels would essentially rent their catalogs to online agents, who would in turn afford their customers extensive and flexible access. Napster, for example, offered a deal worth $1 billion over five years, but was turned down before being sued out of existence. Von Lohmann calls compulsory licensing "one of the more ascendant ideas of 2003," and supports raising the money by placing a small tax on service providers, arguing that they're stable, mostly based in this country, and a natural site for a digital "turnstile." He thinks demand would be so strong that the industry could reasonably expect to see, at a minimum, the same profits it earned in 1997: "They say the Internet is eroding their traditional profits—fine, we'll guarantee them the profits they made before the Internet rained on their parade." Even if von Lohmann is overstating, consider that if the labels had accepted Napster's offer, their revenues from downloads over the past two years would be $400 million instead of pocket change.

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