The empire strikes back

It's not that recording industry honchos think anti-hacking laws are bad. They just think such laws shouldn't apply to them. At least, they think such laws shouldn't apply to them the same way they apply to everybody else, which is to say, all of the time.

          It’s not that recording industry honchos think that anti-hacking laws are a bad idea. They just think anti-hacking laws shouldn’t apply to them. At least, they think anti-hacking laws shouldn’t apply to them the same way they apply to everybody else, which is to say, all of the time.

          And so last week, a Los Angeles politician asked the US Congress to exempt copyright holders in the recording and entertainment business from laws that prohibit hacking some of the time, which is to say, in cases where the hacking is done in the name of copyright protection.

          Certainly, desperate times call for desperate measures, and certainly, the recording industry is traveling through some seriously desperate times. But the question that many opponents of the proposed legislation want answered is this: How desperate should you have to be to persuade Congress to winch you up above the law?

          It’s a tough one, and it all began, of course with file sharing technology called Napster, the killer app that threatened to kill the recording industry. But for all of its 70 million users and disruptive potential, Napster proved vulnerable to the industry’s traditional weaponry: lots of lawyers and lots of money. Yet even as Napster was going down, a half dozen similar services were taking its place, maintaining a continual flow of free music and videos to and from hard drives around the globe.

          Today, the entertainment industry claims, these peer-to-peer technologies churn through more than 3 billion downloads a month, and most of those downloads are copyrighted material. That number is apparently too much even for Hollywood style lawyers and money, and the industry has resorted to another tactic: sabotage. For months now, it has been flooding peer-to-peer services with empty decoy files and hoping that users who download these files will become exasperated and just give it up. If that tactic is working, its success is one of the best kept secrets in Hollywood.

          Now the record companies want to take the next step from the saboteurs’ handbook. They want to hack into the file-sharing networks themselves and disrupt their service. Because that tactic happens to be illegal, they persuaded Los Angeles Republican Howard Berman to file the P2P Piracy Prevention Act, an amendment to existing anti-hacking law that would exempt copyright holders of liability for “disabling, interfering with, blocking…the unauthorised distribution” of copyrighted materials.

          Predictably, some civil rights-minded observers promptly conjured up images of record industry vigilantes rummaging through the hard drives of personal computers of with boundless enthusiasm and way too much impunity. Opponents also pointed out that the bill fails to specify what kind of sabotage would be allowed and what kind would not.

          And big picture critics expressed fear that legitimising sabotage will encourage a new kind of digital vigilante justice that could in turn set off a hacker jihad. They wonder where it all will end. Will it end at all? Or is the recording industry trying to herd cats? Is this the best way to stop the illegal distribution of copyrighted material? If not, what is? Tell us what you think.

          Jahnke manages the content and editorial vision of Darwinmag.com and CIO.com.

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