Avast, Ye Pirates

Get yourself--and Congress--ready for the next wave of absurd anti-file-sharing tactics

Let's say that for the past year you've bought MP3s legitimately from sites like iTunes and the relaunched Napster. Then you buy your thousandth song--say, the Black Eyed Peas' "Let's Get Retarded"--and moments later the feds burst into your room and cart you away. To jail. For three years.

Couldn't happen, right? Well, then, neither could this: It's Friday night. You've had a long week at work, and all you want to do is watch that Desperate Housewivesepisode you taped. You press play and happily fast-forward through all the commercials. Suddenly, five FBI agents barrel through your windows, yelling, "Drop the remote, scum!"

It sounds absurd, even by George Orwell's standards. And yet, if certain members of Congress and their deep-pocketed allies in Big Media have their way, this could become reality.

In fact, the Senate is currently haggling over a bill, HR 4077 Substitute, that would make those two scenarios possible. Sponsored by Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont), this legislation is a bunch of stitched-together copyright-issue acts, some of which have already passed either or both houses of Congress. A few of the articles are harmless--one would designate the oak our national tree--while others are chilling. Chief in the latter category is the Piracy Deterrence and Education Act (aka PDEA, the original HR 4077).

"This is the almost worst possible bill," says Art Brodsky, communications director for Washington, D.C., digital rights organization Public Knowledge. (Worst possible, Brodsky believes, is the INDUCE Act, which we'll get to later.)

The PDEA aims to switch the onus of prosecuting file-swapping peer-to-peer users from Big Music and Hollywood to the U.S. government. So instead of suing file-swappers themselves, these huge media companies would let the government--and your tax dollars--take over.

"The recording industry has this problem," says Jason Schultz, attorney for San Francisco technology liberties watchdog Electronic Frontier Foundation. "The people who are their biggest fans are also the people who they are the most mad at, because they're the ones downloading stuff. They've never figured out what to do with this problem, because they want to crack down and sue, but they also don't want to alienate them...So the solution they came up with was 'Jeez, if we can find some way for the Justice Department to do our dirty work for us, we can crack down on Americans, and they'll blame the government more than they'll blame us.'"

Not one to do anything half-assed, the recording industry also suggested the government crack down like a sledgehammer, offering fines of up to $250,000 and jail stays of up to three years. And here's the kicker: The PDEA's language is incredibly vague, suggesting that "making available" or "offering for distribution" MP3s would constitute such an offense.

"'For distribution.' What does that mean? 'Making available.' What does that mean?" Brodsky asks. "These standards are very vague and could just as well include material on networks, on hard drives, whatever." And that's a thousand legally downloaded songs, like the ones that artists offer for free on their Web sites, or even those you buy from iTunes, if you were to either burn songs for friends or use the site's sharing feature to stream songs over a network. Not to mention all the people--you know who you are--who are still illegally downloading materials, like, oh, the new U2 album.

"If that's the standard, then you're criminalizing half the teenagers in America," Schultz says. "Do we really want to start filling our jails with teenagers who simply downloaded music?"

What do government goons get for assuming the task of prosecuting 12-year-old boys, 25-year-old indie rockers and 84-year-old grandmothers? Well, for one thing, they get money. If the House follows the Senate in passing the Protecting Intellectual Rights Against Theft and Expropriation Act (S. 2237, aka PIRATE), the Department of Justice will get a puny $2 million to take civil action against copyright infringers. But the PDEA recommends that the department should get $15 million more for education and prosecuting purposes--except the money would have to come out of its existing budget, which means it would be diverted from such unnecessary activities as fighting terrorism.

Bizarrely enough, none of these disturbing aspects of the bill has gotten the attention of the Senate. What has held up the omnibus package is something far simpler: John McCain's distaste for commercials. The maverick Republican senator from Arizona has placed a hold on the act until language in the Family Movie Act, making it illegal to speed through ads on videotaped TV programs, is taken out. That's right: Representative Lamar Smith (R-Texas) wants to make it a crime for you notto watch that annoying formerly fat guy shill for Subway.

During the legislative break, it is hoped that McCain and other senators will take a closer look at the PDEA's ramifications, including its possible quashing of technological innovation. Regarding that thousand-songs rule: Schultz says if you're streaming iTunes throughout your house via wi-fi, then you could be caught sharing your songs with your neighbors and anyone driving by. And if that's illegal, then couldn't the definition of sharing be extended to playing your car stereo with the windows down? Furthermore, it's highly likely your cell phone, laptop, TiVo and iPod already hold that many songs, if not several thousand more. Does sharing or publicly enjoying those constitute an offense?

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