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EFFector - Volume 16, Issue 10 - EFF Opposes State Level "Super-DMCAs"

EFFector       Vol. 16, No. 10       April 20, 2003     ren@eff.org

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 249th Issue of EFFector:

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EFF Opposes State Level "Super-DMCAs"

Some States Pass, Others Consider Copyright Legislation

San Francisco - The Electronic Frontier Foundation (EFF) last week released a detailed analysis of the dangers posed by digital copyright bills in individual states.

The product of stealth lobbying efforts by the Motion Picture Association of America (MPAA), these new measures are aimed at criminalizing the possession of what the MPAA calls "unlawful communication and access devices," but are so broad that they could ban critical security and privacy tools online as well as restrict what machines you can connect to the cable, satellite, and Internet lines in your home.

Because the bills are more extreme versions of the nationwide Digital Millennium Copyright Act (DMCA), pundits refer to them as "super-DMCA" legislation.

Even before these activities crossed activists' radar, seven states (Colorado, Delaware, Illinois, Michigan, Oregon, Pennsylvania and Wyoming) had already enacted them into law. Similar bills have been introduced and are currently pending in Arkansas, Florida, Georgia, Massachusetts, Tennessee and Texas.

"The 'super-DMCA' measures represent special interest legislation that dramatically expands the reach of the federal DMCA, which has already put fair use, innovation, free speech and competition in peril," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Communication service providers -- meaning ISPs, cable companies, and providers of digital entertainment services -- can use this legislation to restrict what you can connect to your Internet connection and cable or satellite television lines and can ban a variety of tools critical to protecting the anonymity and security of Internet users."

EFF strongly opposes these state super-DMCA bills as unnecessary and overbroad. The proposed bills represent the worst kind of special interest legislation, sacrificing the public interest in favor of the self-serving interests of one industry.

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Electronic Frontier Foundation Supports Unlicensed Spectrum

Asks FCC to Broaden Wireless Broadcast Realm

San Francisco - The Electronic Frontier Foundation (EFF) recently supported a spectrum policy proposal from the Federal Communications Commission (FCC) and asked the FCC to acknowledge its First Amendment obligation to allocate additional spectrum for unlicensed use. Unlicensed use of spectrum would permit the expansion of wireless communication, including Wi-Fi-style technology.

EFF asked the FCC to adopt the policy proposed in Notice of Inquiry 02-328, "Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band." In this notice, the FCC seeks comment on the allocation of additional spectrum for unlicensed use, similar to the allocation that makes Wi-Fi devices possible. The Commission proposes to carve spectrum for unlicensed use out of unused TV station frequencies, which would dramatically increase the "open" spectrum available for technological innovation.

"Spectrum regulation is a form of speech regulation," said EFF Outreach Coordinator Cory Doctorow. "We support the Commission's proposal to make more spectrum available for unlicensed applications like Wi-Fi, moving us closer to a world where we all may speak over the airwaves."

The FCC traditionally justifies regulating spectrum use on grounds of scarcity, arguing that if anyone were allowed to broadcast, the resulting chaos would create so much interference that no one would be heard. The success of Wi-Fi and other uses of the unlicensed 2.4GHz band demonstrates that unlicensed use models allow far more speakers than the FCC's old "command-and-control" model of spectrum allocation.

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Editorial: Finding a Better Way with P2P

An edited version of the following editorial, written by EFF senior staff attorney Fred von Lohmann, appeared in the Daily Princetonian on Monday, April 14. The editorial appeared a few days after Princeton undergraduate Daniel Peng was sued by 16 major record labels for running a LAN indexing tool on the Princeton campus network. Similar lawsuits were filed against three other undergraduates at Renssalaer Polytechnic Institute (RPI) and Michigan Technological University (MTU).

These lawsuits are only the most recent examples of the lengths to which the entertainment industries are willing to go in their campaign against what they call "Internet piracy." Increasingly, we are facing a stark choice -- either continuing on our present course, with the entertainment industries demanding and obtaining the power to re-architect the Internet, or choosing a path that gets copyright owners (and artists) paid without compromising our freedoms. The following editorial explores a possible alternative.

~ ~ ~ ~

Finding a Better Way with P2P
Fred von Lohmann

Suing college students. Forcing ISPs to rat out customers. Petitioning Congress for unprecedented vigilante powers. Deploying armies of lawyers to sue technology companies. Threatening universities and corporations. Demanding that ISPs disconnect tens of thousands of Internet users. Hiring electronic enforcers to monitor computer users.

None of these efforts by the recording industry has put a single nickel into the pockets of a musician. And none of these efforts has slowed the spread of peer-to-peer ("P2P") file sharing. More Americans have used file-sharing software than voted for the President.

But we are paying a price. Responding to pressure from the entertainment industry, the University of Wyoming is now monitoring and recording all university Internet traffic. One hundred Naval Academy cadets have been disciplined for file-sharing. Investment in innovative P2P companies has dried up. Some members of Congress, addled by a steady diet of propaganda and campaign contributions from the entertainment industries, have suggested that the answer might be to expel, or even jail, college students. Music fans are frustrated and alienated from the musicians they love.

The hysteria over P2P has gotten out of hand. While protecting copyright is a worthwhile endeavor, suing college students will not get artists a penny more in royalties. Conscripting cash-strapped universities to act as muscle for the entertainment industries is absurd. Putting entire universities under constant surveillance is simply unacceptable.

There is a better way.

The problem is not P2P file sharing. In fact, file sharing is a remarkable innovation that has enabled a world-wide community of music fans to build the greatest library of recorded music in the history of the world.

The problem is that artists are not getting paid. It is time to address the problem.

The right answer is obvious: we need to collect a pool of money from Internet users and agree on a fair way to divide it among the artists and copyright owners. There are many ways to do this. One interesting way is with something copyright lawyers call a "compulsory license." It might work something like this: Internet service providers (including universities) might add a flat monthly surcharge to the fees they charge for Internet access. Part of these fees would be remitted to the record labels, while some would be paid directly to the artists (who today frequently are victims of unfair contracts and crooked royalty accounting). The fees would be divided up fairly, based on popularity on the file-sharing networks, measured with sampling methods like the Neilsen ratings that respect our privacy while tabulating the P2P "charts." Having paid the fee, fans could engage in private, non-commercial file-sharing without worrying about being hunted down like criminals.

That's only one possible way to get artists paid; there are many others to choose from. Systems like this are already in place in a variety of other areas. Anyone can record a cover of a song, without having to ask permission from the song-writer, so long as they pay a standard fee per copy they sell. In the cable television arena, cable networks do not have to ask for copyright permissions in order to retransmit over-the-air programming. Instead, they simply pay a fee to those who own the copyrights in the programs. Webcasters, similarly, are allowed to play whatever they like, so long as they pay a fee set by the Library of Congress.

The university environment could be a testing ground for alternative compulsory licensing models. In exchange for standing up strongly for their users' privacy rights, universities could begin negotiating for experimental campus-wide blanket licenses for file-sharing.

After all, the reality is that file-sharing is almost certainly going to remain a fact of campus life. The debate should be about getting artists and copyright owners fairly compensated, not about how many students should be expelled or how to install surveillance equipment on campus networks.

Fred von Lohmann is a senior staff attorney at the Electronic Frontier Foundation (www.eff.org), a membership-supported nonprofit organization that defends civil liberties and free expression in the digital world.

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