How the Music Industry’s War on Sharing Destroys Markets and Erodes Civil Liberties

Insult to Injury: Further Piracy Crusade Debacles

1 Leave a comment on paragraph 1 0 In addition to the significant badwill engendered by the music industry’s historic business practices and its recent litigious fervor, the piracy crusade has been repeatedly marked by public relations debacles that have presented the industry as duplicitous, corrupt, and/or clueless. As with the P2P lawsuits, it is ultimately irrelevant whether these characterizations reflect the industry’s typical conduct or demeanor; the important thing is that the labels’ reputations have been further tarnished.

2 Leave a comment on paragraph 2 0 An early example of this took place in 1997, when the industry was just ramping up its efforts to combat MP3-hosting websites. The RIAA identified ParSoft Interactive, a game design company from Plano, Texas, as one such online infringer. Instead of calling the company and asking it to stop, “RIAA lawyers stormed in ‘like the Men in Black, slapped [down] a huge swatch of legal papers and said, “You’re running an illegal site,”’” as ParSoft’s business manager told a reporter soon afterwards. “‘It was a week of hell and $10,000 down the toilet.’” After ParSoft was forced to retain both an attorney and a public relations firm to defend the suit and the company’s reputation, it turned out that the files hadn’t been posted by anyone at the game developer, but rather by an employee of their internet service provider.[1]

3 Leave a comment on paragraph 3 0 While the Parsoft incident can be written off as a somewhat humorous case of mistaken identity, other antipiracy fiascos have not been quite so benign. For instance, as early as 2002, the RIAA and its frequent partner in the piracy crusades, the MPAA[2], successfully convinced Congress to introduce a bill that would have indemnified both groups against all state and federal laws in their attempts to stop a “publicly accessible peer-to-peer file-trading network” – essentially granting them carte blanche to hack into, and destroy, any private or commercial computer suspected of hosting unlicensed content. Given the obvious risks of false accusations and the lack of legal checks and balances, there was little doubt among its critics that such a law would have led to significant, unrecoverable damages sustained by innocent parties. Moreover, there was legitimate concern (considering the industries’ histories) that such power could have been used as an effective tool for anticompetitive tactics. Consequently, Berkeley law professor Mark Lemley characterized the bill as a “nightmare,” Will Rodger of the CCIA[3] referred to it as “vigilante justice for the 21st century,”[4] and tech policy analyst Hal Plotkin, writing on the San Francisco Chronicle website, called it “an incredibly vivid example of how easily government officials can unintentionally screw up the economy.”[5]

4 Leave a comment on paragraph 4 0 Unsurprisingly, given the backlash it generated, this particular bill died in subcommittee. But that didn’t stop the music industry from experimenting with computer hacking as a piracy deterrent. On Halloween 2005, a blogger and tech researcher named Mark Russinovich posted a lengthy analysis[6] of a new security risk he had discovered: “copy-protection” technology installed on CDs manufactured by Sony BMG had, without his knowledge or consent, installed a rootkit on his computer. In Russinovich’s words, rootkits are “cloaking technologies that hide files, Registry keys, and other system objects from diagnostic and security software, and they are usually employed by malware attempting to keep their implementation hidden.” In other words, even without Congressional carte blanche (or suspicion of infringement, for that matter), Sony BMG had gone ahead with its hacking plan. In the weeks that followed, it turned out that tens, if not hundreds, of millions of discs contained the software, which not only opened a “back door” in users’ computers, exposing them to malicious hackers, but also slowed down, and in many cases, crashed their computers. Some consumer electronics, such as car stereos, were also affected (in fact, my own Sony car stereo became unusable after I tried to play a Sony BMG CD in it). After a tsunami of negative publicity, several class action lawsuits,[7] and several investigations by state and federal regulators, the CDs were recalled, and Sony BMG published uninstallers for the software – which, sadly, presented new security threats when used.[8] After this colossal debacle, one would think the major labels would take greater care to insure their customers’ privacy and security. Yet security problems related to the piracy crusade have continued to crop up – for instance, in 2009, it was discovered that BayTSP, which policed online copyright infringement on behalf of the RIAA and MPAA, was storing all of the data about the identities of suspected infringers in an unsecured internet database, permitting it to be searched via Google and “allowing anyone with hackerish leanings ample opportunity to create all kinds of mischief.”[9]

5 Leave a comment on paragraph 5 0 Finally, there have been several instances of apparent “piracy” and corruption by the piracy crusaders themselves. Some of this is predictable, garden-variety hypocrisy, as when 60 television shows (worth $9 million in damages, according to statutory rates) downloaded illegally via BitTorrent were tracked to the RIAA’s headquarters,[10] or when executives at “nearly every major entertainment industry company in the US” were caught downloading both music and movies via P2P.[11] But in some cases, the stories have taken a darker turn. For instance, there is the case of Melchior Rietveldt, a freelance music producer who was commissioned to compose a soundtrack for an antipiracy video released by BREIN (the Dutch entertainment industry trade association) in 2006. The following year, Rietveldt bought a DVD of a Harry Potter movie, and was shocked to find that the video had been included on the disc, in direct violation of his contract with BREIN, which limited its use to a local film festival. After doing some research, the composer discovered that the video had been included on tens of millions of Dutch DVDs without his knowledge, consent, or remuneration. In other words, his antipiracy song had been pirated by the piracy crusaders.

6 Leave a comment on paragraph 6 0 Rietveldt soon contacted music rights organization Buma/Stemra in search of what he estimated were about a million euros in unpaid royalties. The organization, which “represents the interests of music authors” and “help[s] enforce copyright” according to its website,[12] was not immediately forthcoming with either royalties or advice. After years of effort, Rietveldt finally heard back from a board member at Buma/Stemra named Jochem Gerrits, who offered to help him recover the unpaid royalties. But the offer came at a steep price: Gerrits demanded that he personally be paid 33% of whatever money was recouped. Fortunately, a Dutch television show called PowNews recorded Gerrits’ extortion request in a phone conversation with Rietveldt’s financial advisor, and Gerrits was exposed and forced to “temporarily” resign. Whether Rietveldt ultimately prevails in his lawsuits against BREIN and Gerrits, the damage to the industry’s goodwill has been done. The scandal has been called “corrupt,” a “money grab” and “mafia-like” by prominent politicians and musicians,[13] and has been covered by media outlets around the globe.

7 Leave a comment on paragraph 7 0 [1] Messmer, E. (1997). Recording industry gives ‘net music pirates a break. Network World, 10/20/97, p. 95.

8 Leave a comment on paragraph 8 0 [2] The Motion Picture Association of America is a trade organization representing the six “major” Hollywood studios.

9 Leave a comment on paragraph 9 0 [3] The Computer and Communications Industry Association is an advocacy group promoting openness and competition in technology and communications, with several large companies in both sectors comprising its membership.

10 Leave a comment on paragraph 10 0 [4] McCullagh, D. (2002). Hollywood hacking bill hits House. CNET, 7/25/02. Available at: http://news.cnet.com/2100-1023-946316.html

11 Leave a comment on paragraph 11 0 [5] Plotkin, H. (2002). Berman-Coble goes too far / Legalizing hacking of P2P networks hurts start-ups, not thieves. SFGate.com. Available at: http://www.sfgate.com/news/article/Berman-Coble-Goes-Too-Far-Legalizing-hacking-of-2798931.php

12 Leave a comment on paragraph 12 0 [6] Russinovich, M. (2005). Sony, rootkits and digital rights management gone too far. Mark Russinovich’s blog, 10/31/05. Available at: http://blogs.technet.com/b/markrussinovich/archive/2005/10/31/sony-rootkits-and-digital-rights-management-gone-too-far.aspx

13 Leave a comment on paragraph 13 0 [7] Full disclosure: I served as an expert witness for the plaintiffs in one of the class action lawsuits.

14 Leave a comment on paragraph 14 0 [8] Halderman, J. A. (2005). Not again! Uninstaller for other Sony DRM also opens huge security hole. Freedom to Tinker (blog), 11/17/05. Available at: https://freedom-to-tinker.com/blog/jhalderm/not-again-uninstaller-iotheri-sony-drm-also-opens-huge-security-hole/

15 Leave a comment on paragraph 15 0 [9] O’Dell, J. (2009). “Once this hits 4chan, it’s over:” RIAA/MPAA privacy/security failure. ReadWRiteWeb, 5/14/09. Available at: http://www.readwriteweb.com/archives/once_this_hits_4chan_its_over_riaampaa_privacysecu.php

16 Leave a comment on paragraph 16 0 [10] Van Der Sar, E. (2011). RIAA and Homeland Security caught downloading torrents. TorrentFreak, 12/17/11. Available at: http://torrentfreak.com/riaa-and-homeland-security-caught-downloading-torrents-111217/

17 Leave a comment on paragraph 17 0 [11] Van Der Sar, E. (2011). Busted: BitTorrent pirates at Sony, Universal and Fox. TorrentFreak, 12/13/11. Available at: https://torrentfreak.com/busted-bittorrent-pirates-at-sony-universal-and-fox-111213/

18 Leave a comment on paragraph 18 0 [12] http://www.bumastemra.nl/en/about-bumastemra/organisation/

19 Leave a comment on paragraph 19 0 [13] Most details of the Rietveldt case are from: Van Der Sar, E. (2011). Copyright corruption scandal surrounds anti-piracy campaign. TorrentFreak, 12/1/11. Available at: http://torrentfreak.com/copyright-corruption-scandal-surrounds-anti-piracy-campaign-111201/

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Source: http://mcpress.media-commons.org/piracycrusade/chapter-6-is-the-music-industry-its-own-worst-enemy/insult-to-injury-further-piracy-crusade-debacles/