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Downloading for a song

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If you’re one of the 4 million people connected to the KaZaA network at any given time, you were about as likely to be hit by lightning last Monday as by one of the 261 lawsuits from the record industry. But even if you got off, you might have reason to worry: The Recording Industry Association of America has at least 1,600 subpoenas in the works to force ISPs to identify file-traders whose IP addresses have been spotted downloading or sharing the copyrighted recordings of RIAA member labels and artists.

InsertArt(2011977)THE BARRAGE of lawsuits, coupled with an amnesty program for people who haven’t yet been busted, is aimed at changing the mindset of Americans who, according to a recent study by Pew Research, care less than ever whether they’re breaking copyright laws by downloading tunes from the Net. Three years of lawsuits and media campaigns have, if anything, backfired by turning peer-to-peer music sharing into a game of cops and robbers — one where music fans see Hollywood record moguls as the robbers. Judging by online chatter and news reports, Monday’s lawsuits were the first effective attack against song-swappers who previously felt they had safety in numbers.


To those determined to make an end-run around the music biz’s lack of attractive online offerings (Apple’s iTunes Music Store is still the best of a weak lot), the lawsuits just mean it’s time to abandon KaZaA by moving their game of keep-away to the next playground. KaZaA rose to prominence only after Napster was shut down. Now that RIAA lawyers have proved they can subpoena the names of KaZaA users from their ISPs, expect a mass migration to anonymous, encrypted P2P networks designed specifically to fix the known vulnerabilities in KaZaA. Earth Station 5 is the most outrageous example. It uses a mesh of proxy servers, encrypted data, and other identity-hiding tricks to keep copyright owners from tracking who’s downloading what. To top it all off, the company — which recently issued a press release declaring itself “at war” with the entertainment industry — is headquartered in Palestine.

But what about Americans worried about the prospect of a bank-breaking lawsuit? Should you take the RIAA up on its amnesty offer? Maybe not. The “Clean Slate” program promises that the RIAA won’t pursue legal action against P2P pirates who send in a notarized affidavit declaring that they’ve wiped all copyright-infringing materials from their disk drives and who vow not to file-share again. But lawyers at the Electronic Frontier Foundation in San Francisco say there are multiple reasons to sit tight for now, rather than rush to sign and deliver what amounts to an admission of guilt.


First, the amnesty offer doesn’t apply if the RIAA has already subpoenaed your ISP for your info without your knowledge. The EFF maintains a database of known subpoenas, but RIAA lawyers didn’t respond to a request for how to definitively tell whether you’re on their larger list. More important, the RIAA’s offer can’t protect you from other potential litigants, which include indie labels or vengeful songwriters. A close read on the terms of the deal finds this clause:

Information will not be made public or given to third parties, including individual copyright owners, except if necessary to enforce a participant’s violation of the pledges set forth in the Affidavit or otherwise required by law. [emphasis added]

That last line is the kicker, an EFF lawyer says. There’s no guarantee a third party won’t successfully subpoena your information from the RIAA, using the same legal procedures the RIAA invoked to get it from your Internet service provider.


The RIAA doesn’t make or enforce the laws, it’s only the biggest potential litigant. A better offer for file-sharers would be to persuade Congress to pass legislation that offers file-sharers a chance to legally pay for what they download. Copyright holders could collect royalties for music that’s traded online in exchange for absolving listeners from needing to personally verify the rights on every song they acquire.

The most obvious method would be the creation of a “blanket compulsory license” for digital media akin to those already used by radio and TV broadcasters. Compulsories, as they’re called in the entertainment industry, would work like this: Music fans could download all the music they want for free online, but they’d pay a sort of “download tax” on computers, MP3 players, ISP accounts, and other transport mechanisms for digital music (the Audio Home Recording Act of 1992 imposed such a fee on DAT tapes and players). The collected fees would be paid out to musicians and copyright holders based on their real or estimated share of downloads. If that sounds crazy, remember it’s also the means by which radio stations and their listeners already share all the music they want, without fear of being sued.

Paul Boutin is a Silicon Valley writer who spent 15 years as a software engineer and manager.