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"I think it's ridiculous," says Andrea White, label manager for Daemon Records, a local independent label founded by Indigo Girl Amy Ray.
Jeff Bransford, president of Atlanta's Terminus Records, agrees: "It's coming off like this giant battle between the little guy and the big guy. I think they could direct some of their resources into education into how it affects labels instead of going after some college kid."
Already, before the first lawsuits have even gone out, the downloading community is responding. From applications that cover one's tracks in cyberspace, to digital hubs based in Scandinavia, consequence-free downloading is alive and well. If renegade programmers have their way, the recording industry's efforts to save itself and its outdated mode of business will only hasten its demise. You could say this is all Bill Clinton's fault. In 1998, he signed into law the Digital Millennium Copyright Act, which sought to provide new ways for copyright holders to protect their work in the computer age. Today, most agree this law has stood the test of time about as well as Michael Jackson's complexion. Vague in spots, too specific in others, it is woefully ill-equipped to deal with a technology that changes so swiftly. The Act, however, has become the RIAA's most powerful weapon in its war against individual downloaders, which began a year ago this month when, on a Tuesday afternoon, investigators for the RIAA logged onto Kazaa.
Kazaa is so easy to use, it's almost shocking: Type in the song you want, hit search, and watch as your options scroll before you. Click on a selection, hit download and within seconds, depending on the speed of your connection, a digital copy of the song is in your computer, where you can play it at your leisure, upload it to an mp3 player, or burn it onto a CD. Those same songs stay in a shared folder, where they become available, in turn, to other Kazaa users. Downloaders automatically become uploaders, and in this way, the love is spread.
As investigators searched through the offerings on Kazaa that day, they came across a user who'd named himself "simonglove." While simonglove's collection of songs proved there's no accounting for taste -- the White Stripes' "Hotel Yorba" was immediately preceded by Hootie and the Blowfish's "I Go Blind," for example -- its volume was impressive. In all, simonglove listed 707 songs available for download to other Kazaa users. Investigators for the RIAA tracked simonglove's Internet Protocol address -- basically, a digital footprint you leave every time you're online -- to Atlanta-based EarthLink.
Citing the Digital Millennium Copyright Act, the RIAA requested and received a subpoena from a federal court clerk in Washington, D.C. That subpoena, and similar ones sent to Verizon, another Internet service provider, led to a lawsuit that the ISPs have now lost. In early June, Verizon and EarthLink grudgingly turned over the names. Verizon is appealing the case, but until the next court date, in September, the industry is free to go subpoena crazy.
"When the DMCA was passed, there was a need to deal with copyright protection," says Les Seagraves, EarthLink's chief privacy officer. "Because anybody could get a Web page and set things up. This part was passed to give legitimate copyright holders a fairly simple method to deal with the fact that their works may be published somewhere else and their copyrights violated."
But Seagraves now worries that the RIAA's court victory will permit anyone with an ax to grind the ability to get a subpoena and force an ISP to give out information about a customer. After all, it's not a judge that issues the subpoena; it's merely a court clerk. As Seagraves says, there's "no due process, no judicial oversight." Last week, the Associated Press reported that the RIAA had so far requested 871 subpoenas from a district court in Washington, D.C. Verizon alone has received more than 150.
ISPs feel they've been dragged into the middle of a fight between the recording industry and illegal downloaders. To them, it's like penalizing the phone company because someone is making crank calls.
Says Jennifer Hightower, assistant general counsel for Cox Communications: "It's not our fight, but they're putting the burden on our back."
But if the RIAA is exploiting weaknesses in the law, so too can ISPs. Nothing in the Digital Millennium Copyright Act requires an ISP or a university to keep records on what IP numbers are assigned to what users. Feasibly, then, an ISP can't turn over what it doesn't have. The recording industry would have to take its fight elsewhere.
The music business' antagonism toward technology is nothing new. In the early 20th century, a music publisher sued the maker of a player piano, claiming the rolls that were fed into the piano to play one of the publisher's songs constituted copyright infringement. The case went to the U.S. Supreme Court, where the publisher lost. Over the next century, the music industry has fought virtually every other technological advance -- advances that, as it turned out, would end up helping their business. Alan Greenspan, for example, is haunted by comments he made in 1983, when he told a Senate subcommittee that "unless something meaningful is done" about consumers taping copyrighted material onto cassettes, "the industry itself is at risk."
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