Chapter 8: Guilty Until Proven Innocent: Antipiracy and Civil Liberties

Aram

August 2, 2012

¶ 1 Leave a comment on paragraph 1 0 The Recording Industry Association of America (RIAA) takes an uncompromising stand against censorship and for the First Amendment rights of all artists to create freely. From the nation’s capital to state capitals across the country, RIAA works to stop unconstitutional action against the people who make the music of our times–and those who enjoy it.

– RIAA website[1]

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Throughout this book, I have discussed numerous ways in which the music industry’s largely unfounded (and sometimes disingenuous) concerns about “digital piracy,” and its antipathy toward online innovation, have harmed both the business and culture of music, contributing to the major labels’ own strategic and financial difficulties and to the impoverishment of the musical public sphere. In this chapter, I aim to demonstrate that the piracy crusade’s harmful effects have extended beyond even these arenas, with negative repercussions for civil liberties, free speech, privacy, and international relations.

¶ 3 Leave a comment on paragraph 3 0 What we might call the “civil effects” of the music industry’s antipiracy efforts[2] can be understood as the result of the industry’s continuing alliance and coordination with government institutions, via state and federal laws, international treaties and trade agreements, and other mechanisms that fall under the general rubric of policy. Indeed, rhetorical and tactical support for the piracy crusade has been remarkably consistent within both the legislative and executive branches of the federal government under both Democratic and Republican leadership. Sitting senators invoke bogus piracy loss estimates, debunked by the federal government’s own Accountability Office, to justify legislation that would allow surveillance of private online communications in the name of protecting intellectual property.[3] The Department of Justice treats copyright infringement as tantamount to drug trafficking and child labor in its “education efforts,”[4] and has publicly alleged, without substantiation, that P2P usage directly funds terrorism.[5] And US Secretary of State Hillary Rodham Clinton, in a recent letter to Congressman Howard Berman (author of the bill I mentioned in Chapter 6, which would grant legal immunity to record labels spying on, hacking into and destroying the computers of suspected P2P users), made it clear that the State Department sees “no contradiction between intellectual property rights protection and enforcement and ensuring freedom of expression on the Internet.”[6]

¶ 4 Leave a comment on paragraph 4 0 If these antipiracy laws and policies are so clearly founded on false premises, and so evidently inimical to the values that America holds most dear, why has the piracy crusade enjoyed such support from such a broad swath of lawmakers and law enforcers? The answer to this question is complex. Part of it is that, as with many other policy matters, intellectual property is an arcane and profoundly unsexy field, and most government officials probably don’t possess the either the interest or the expertise to draw such conclusions independently. Among those in the minority who do have a working fluency in this field, there are actually significant disputes; for instance, as I will discuss below, a number of ambitious antipiracy bills have been successfully blocked by legislators concerned about their civil liberties implications.

¶ 5 Leave a comment on paragraph 5 0 Among those who support antipiracy measures, there are no doubt some who believe that their solutions are the most reasonable balance between competing values (e.g. liberty vs. security) in the face of an intractable and potentially devastating problem. And there are certainly others who support such legislation for politically instrumental purposes that can’t be explicitly stated (e.g. gaining leverage in trade relations with other economic powers such as China and Russia). But there can be little question that a substantial portion of antipiracy legislation and policy is driven directly by lobbying, campaign finance support, and other forms of direct influence from the music industry and its allies.

¶ 6 Leave a comment on paragraph 6 0 According to public records[7], the RIAA contributed over $4 million to political campaigns between 1989-2011, with antipiracy legislation sponsors such as Congressman Howard Berman and Senators Dianne Feinstein and Orrin Hatch among the top recipients. The organization also spent over $52 million in lobbying during the same time period, the majority of it in the past six years. Collectively, the recording industry (including labels, publishers and trade associations) has given almost $36 million to campaigns and over $120 million to lobbyists, with “copyright, patent & trademark” listed as the “most frequently disclosed lobbying issue.” The broader copyright industries, which include film, television, computer software and publishing, have donated over $836 million to campaigns and spent nearly $1.5 billion on lobbyists (see Figure 10). For each of these industries, intellectual property is one of the top three issues targeted by their efforts. Nor are they alone in these initiatives; across all industries, lobbying related to intellectual property topped $2.5 billion in the years 2009-2011 alone, with the greatest single contributions coming from the US Chamber of Commerce. As media watchdog MediaMatters argues, “due to the opaque nature of lobbying disclosure forms, it’s impossible to nail down the total amount of money”[8] spent on promoting any given law; yet, collectively, these contributions speak volumes about the financial commitment that piracy crusaders have made to influence policy.

¶ 7 Leave a comment on paragraph 7 0 While it is true that public interest groups such as the Electronic Frontier Foundation, Free Press and Public Knowledge have devoted considerable effort to influencing both policymakers and public opinion against such policies, their resources are minuscule compared to those of the piracy crusaders, by several orders of magnitude (collectively, they have spent less than a million dollars on lobbying and campaign finance). And though the technology sector sometimes conflicts with the other IP-based industries (and, at other times, joins them), it has not spent as much as they have, and intellectual property policy falls significantly lower on its lobbying agenda (ranking fifth for the sector as a whole).

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Figure 10: Campaign Finance and Lobbyist Expenditure by Copyright Industries, 1989-2011
 

¶ 9 Leave a comment on paragraph 9 0 The effects of these lobbying efforts and campaign contributions are well documented. Often, the lobbyists just write policy on behalf of lawmakers and government agencies. California Attorney General Bill Lockyer, who received $36,000 in contributions from the entertainment industry in 2004, circulated a letter to his fellow state attorneys general that same year expressing his “grave concern” about the dangers of P2P technology. Wired magazine obtained a copy of the document, and demonstrated that, based on its metadata,[9] the letter had been “either drafted or reviewed by a senior vice president of the Motion Picture Association of America.”[10] While direct evidence of lobbyist meddling such as this is fairly rare, those who work in policy circles treat it as an open secret. As Eric Schmidt, then CEO of Google, told the audience at a 2010 policy forum in Washington, D. C., “‘The average American doesn’t realize how much of the laws are written by lobbyists’ to protect incumbent interests.”[11] Sometimes, the lobbying industries themselves will even acknowledge the integral role they play in drafting and revising legislation. During the 2011 legislative efforts to pass the controversial Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA), for instance, a senior executive at the MPAA told the New York Times that “we will come forward with language” to revise the bill in the wake of criticism, and described how lobbyists from the entertainment industry were “huddling with Congressional staff members from both parties and both the House and Senate.”[12]

¶ 10 Leave a comment on paragraph 10 0 Despite the transparency laws mandating the disclosure of financial contributions and the prevalence with which open secrets are acknowledged (at least within policy circles), the genesis of antipiracy laws and policies is still frequently shrouded in darkness. For instance, international trade accords like the Anti-Counterfeiting Trade Agreement (ACTA), the Canada-EU Trade Agreement (CETA), and the Trans-Pacific Partnership (TPP) – all of which have been widely criticized for their potential threats to free speech and privacy –have been negotiated in closed, and sometimes secret, meetings that exclude the general public and even elected representatives, while full access to the proposed treaty text is granted to “industry advisors” from the MPAA and the RIAA.[13]

¶ 11 Leave a comment on paragraph 11 0 Recent Freedom of Information Act (FOIA) requests have also revealed that the US “copyright czar” Victoria Espinel (formerly Assistant United States Trade Representative for Intellectual Property and Innovation, where she was the “lead architect” of America’s IP trade policy and “principally involved in WTO[14] litigation against the EC and China”[15]) was actively involved in secret negotiations between entertainment and communications industry organizations (including major record labels), as well as lobbyists, to implement an un-mandated, self-imposed “graduated response” internet censorship policy at the nation’s largest ISPs. This “six strikes” policy, which at the time of writing recently took effect, cuts off internet access for paying internet subscribers suspected of violating copyright on multiple occasions, without either legislative representation or judicial oversight. Throughout the negotiations, which indicated a “friendly two-way relationship between the industry and the administration,” and for which Espinel at times used her personal email account, there was virtually no participation from public interest groups, let alone the public itself or its legislative representatives.[16]

¶ 12 Leave a comment on paragraph 12 0 These are just a few examples of a much broader trend, with troubling implications for civil liberties and democratic society in the networked age: Again and again, a handful of major record labels, film studios and other legacy content cartels have leveraged their strong ties with elements of the US government, as well as foreign sovereignties and treaty organizations, to promote policies that undermine fundamental human rights such as free speech, privacy and access to information in the name of combating digital piracy. In the remainder of this chapter, I will review some of the specific elements of these laws and policies, and discuss in greater detail some of their implications for culture, society and the political process.