2008: The War on Copyright™ How the PRO-IP Act, ACTA, and President-elect Obama will shape how we get and ultimately how we listen to our music

The PRO-IP Act

A game-changing law and its implications.

September 2008. In the waning weeks of what was a long and arduous presidential election campaign, people seemed so intensely focused on the campaign itself, they had probably forgotten George W. Bush would still be President the day after the election. And while the nation's attention on the weekend of September 26 was focused on a bailout to fix the exploding economic crisis, most failed to notice that Congress passed a law whose impact remains at best unseen for musicians and the music industry. The Prioritizing Resources and Organization of Intellectual Property Act of 2007, also known as the PRO-IP Act, was passed with unanimous consent in the Senate and with an overwhelming majority in the House (renegade Republican presidential candidate Ron Paul was one of the few who voted against it, as well as the original draft of the Act in May).

The law itself is not much of a change from previous acts of similar nature (raising fines and punishments against people caught with pirated music and such), except for one major point: The law creates a new office in the White House whose purpose is dedicated to copyright infringement matters and whose head official would dictate copyright policy. This so-called “IP czar,” a term used by both the RIAA (Recording Industry Association of America) and the digital rights' advocacy group Electronic Frontier Foundation, would direct the Department of Justice and Attorney General as to how to handle piracy cases and the increased rate of piracy through P2P sharing.

“While the nation's attention was focused on a bailout, most failed to notice that Congress passed a law whose impact remains at best unseen for musicians and the music industry.”


Sound familiar? It is perhaps because this new official sounds and acts like the so-called “drug czar,” and that the increased criminalization of downloading music illegally has some parallels to extensive punishments given out for drug possession. One could argue that this law has turned the piracy situation into a “War on Copyright.” The main difference, of course, is that while the War on Drugs serves the government interests alone, the War on Copyright serves the interests of the content industry, fronted primarily by the RIAA and ESA (who serve video game interests). The MPAA has notably softened its stance on IP enforcement somewhat after the legendary pro-copyright lobbyist Jack Valenti's retirement and death.

The PRO-IP Act has an interesting history. In its revisions, one particular part of the Act that was scrapped was giving the IP czar power to hand over civil cases (not criminal) to the Attorney General and the DoJ, turning them effectively into lawyers for the music industry in song infringement cases such as those of Jammie Thomas from this year. The DoJ, in a rare break, went up in arms in this matter, disgusted at the prospect of becoming “pro bono lawyers” for the industry and called to have that provision scrapped. Other provisions, such as turning the IP czar's office into a vast bureaucracy with limited oversight, were softened as well.

The EFF, though pleased that the previously-noted provisions were removed from the Act, are nonetheless concerned with its signing. “It was a massive gift to the entertainment industry,” Richard Esguerra, an activist for the organization, said. He noted that the law seemed more concerned with IP enforcement than in individual protections. Further, he argues that the government is simply choosing to kowtow to government. “The public is bumping into copyright more often than ever while making everyday uses of technology,” he said, “but most of Congress seems to be ignoring the public when making changes to copyright law.” The EFF seeks to remedy this situation in a recently published “Innovation Agenda,” which includes “repairing” the DMCA by removing fines and damages from simply downloading music illegally.

The RIAA, on the other, was pleased with the signing of the paper. In a press release, chairman and CEO Mitch Bainwol commented on the situation with a reference to the economic crisis, stating that intellectual property is “widely recognized as a cornerstone of the U.S. economy” and that the law “provides enhanced protection for an important asset that helps lead our global competitiveness.” A spokesperson for the RIAA also emphasized the economy in a statement to TMT, calling intellectual property an “economic engine.” Although the RIAA seems to have some people in mind for the position of IP czar, they also haven't made any official endorsements for either President Bush or President-elect Obama to appoint.


Which leads to the next session of Congress starting in January. The EFF, as said, is interested in an “Innovative Agenda” that includes repairing the DMCA so that file-sharers are not constantly persecuted by the content industry. The RIAA, in a statement, is primarily interested in continuing efforts to implement “performance right” royalties for artists and labels for radio airplay. However, another law looms in the horizon that the RIAA has shown some interest in: The Anti-Counterfeiting Trade Agreement, or ACTA. This agreement could serve as an endgame to piracy at a very high cost.




Facing the internet's unseen enemy with... secrecy? Also, "transparency" from the Obama campaign.

What is surprising about ACTA, which is being discussed with the U.S., the EU, Japan, and several other prominent countries, is not what is public information, but what isn't public. Trade agreements are usually negotiated in secrecy. However, the nature of the agreement, which seems to concern internet content and IP, have raised concerns, yet requests for information have been blocked repeatedly by courts. The only information that was initially available to the public was a leaked memo in June 2008. What can be confirmed as being discussed is the following:

- Forcing internet providers to disclose information about suspected infringers without a warrant.

- Allowing airports and border checkpoints to randomly search MP3 players, laptops, and cell phones for any illegally downloaded content.

The RIAA, through a leaked memo written by the organization, is highly supportive of the act. It has also made suggestions to take it a step further by suggesting that internet providers not only block and/or ban users suspected of infringement activities, but also create mandatory content filters for internet providers, blocking access to any sites suspected of infringing activity. Both of these suggestions would be done without a warrant or probable cause. A spokesperson for the RIAA, when asked about ACTA, admitted that they had sent comments (presumably the memo) to the U.S. Trade Representative drafting the agreement, Susan Schwab, but otherwise denied any direct involvement.

The EFF has been very vocal in opposition to ACTA and furthermore to its secrecy. In an interview with TMT, spokesperson Rebecca Jeschke said that “The dangerous problem here is that we know so little about [ACTA],” and that even with the leaked memo, the secrecy makes it so that “we don't even know what's in it right now.” In a follow-up, Jeschke stressed that the public “needs to know what this treaty contains so that they can express their opinions to political leaders.”

“The dangerous problem here is that we know so little about ACTA.” --Rebecca Jeschke, EFF


Of course, one could argue that the election of Senator Barack Obama as President may very well favor copyright reform in a manner supported by the EFF. This argument is understandable, given his overall reformist attitude with technology, which includes a government program in expanding broadband access and vast reforms to the patent system, including citizen review of patents.

However, this may not be the case at all, for the public knows more about ACTA than the President-elect's actual positions on copyright. Research by TMT has found practically no public statements made by the President-elect concerning copyright throughout the campaign and during the transition. The only information available concerning the President-elect's stance on copyright is the following statements on the transition team's website (with a variant on the official Obama website):

- Protect American Intellectual Property Abroad: Work to ensure intellectual property is protected in foreign markets, and promote greater cooperation on international standards that allow our technologies to compete everywhere.

- Protect American Intellectual Property at Home: Update and reform our copyright and patent systems to promote civic discourse, innovation, and investment while ensuring that intellectual property owners are fairly treated.

While it certainly acknowledges a need to reform, these statements are at best suggesting a possible pro-ACTA position, which is plausible given VP-elect Joe Biden's pro-copyright activity in the Senate, as noted by the RIAA. At worst, they are incredibly vague. Due to his active and transparent position on other elements in technology, this is very surprising and disappointing. In fact, these statements reflect one of the few cases where President-elect Obama has not been transparent and upfront. This lack of position is also relatively unprecedented: In 2004, Senator John Kerry stated during his campaign that he would like to revisit and possibly revise the DMCA. TMT made inquiries to the Presidential Transition Team press office concerning the DMCA, the PRO-IP Act, and ACTA to get a clearer position. Despite the writer receiving numerous e-mails from the Transition Team calling for transparency in government and action, our inquiries have gone unanswered as of press time.


With a major law changing the government's fundamental role towards copyright quietly passed, the year 2008 may be a watershed moment in both file-sharing and internet piracy. However, with what little information we go by in both future laws such as ACTA and the positions of the future President Obama, this is an absolute uncertainty. All that is certain is that, going into 2009, there is a new War on Drugs, and those drugs happen to be the tracks you just downloaded.

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