ACLU Bill of Rights Dinner

Thursday, December 12, 2002

by Ken Hertz, 2002 Bill of Rights Award recipient

I’ve gained weight. I eat poorly. I don’t exercise enough. I’ve gotten older and it’s harder to take it off or keep it off. So I was more than a little intrigued by a recent commercial for a prescription medication designed to help people like me lose weight. Somewhere towards the end of the commercial, the announcer adds in a very pleasant voice, that the possible side effects might include: oily spotting, gas with discharge, uncontrollable bowel movements, and primary pulmonary hypertension – which is fatal to 45% of its victims.

The treatment – it seems – can be worse than the problem. You see, you can’t treat a disease like obesity by only attacking its symptoms. Treating the symptoms and ignoring the underlying problem can allow the problem to fester – and worsen.

Unfortunately, symptoms are easier to recognize, easier to attack, and so much easier to explain.

America’s War on Crime (and its mandatory minimum sentencing, racial profiling, and erosion of fourth amendment protections), for example, might actually fuel the very atmosphere of fear and disenfranchisement that results in more crime.

Similarly, the War on Drugs and fifty years of trying to curtail supply and punish consumers has resulted in unbridled drug use, decapitalization of our inner cities, rampant street crime - a ridiculously high prison population made up disproportionately of individuals of color, and evictions from public housing for the impoverished innocent relatives of even non-violent drug offenders.

And what of the War on Terrorism? According to the Village Voice:

“Without any official public notice, and without any congressional hearings, the Bush administration—with an initial appropriation of $200 million—is constructing the Total Information Awareness System. It will extensively mine government and commercial data banks, enabling the FBI, the CIA, and other intelligence agencies to collect information that will allow the government to essentially reconstruct the movements of citizens. This will be done without warrants from courts, thereby making [the concept of] individual privacy as obsolete as the [dinosaurs].”

Why are we telling you all of this? How do the War on Crime, the War on Drugs, the War on Terrorism and my personal War on Obesity, relate to the entertainment industry’s War on Internet Piracy?

Our point is that treating the symptoms without addressing the problem will only worsen the problem and generate more daunting symptoms.

This year, approximately 165 million consumers - over 61 million in the United States - used peer to peer file sharing to obtain and share untold billions of copies of music and other copyrighted material. Successful lawsuits against MP3.com, Napster and an assortment of others have not curtailed the supply of unauthorized files available for download. To the contrary, if anything, these efforts have resulted in an increasing audience for these file sharing systems, and an evolution of this technology which will soon be too decentralized to allow further enforcement without resorting to prosecuting individuals. To that end, On July 25, 2002, Representative Howard Berman introduced a bill, HR 5211 in the House of Representatives that would give copyright owners the right to violate the law in their efforts to stop the unauthorized circulation of their works on peer-to-peer networks. According to the Electronic Frontier Foundation “The proposed law amounts to government-sanctioned vigilantism -- copyright owners are given the power to ignore the law in pursuit of those that they decide are guilty. There is no warrant requirement, no trial, no prior notice to the targets, no due process, and very little recourse for innocent bystanders caught in the cross-fire.”

One commentator recently observed that the primary objective of our copyright laws is not to reward the author "but rather to secure for the public the benefits from the creations of authors." Currently, the major record distributors only make around 10% of their entire catalog available for purchase in any form – disc or download. Two-thirds of potential record consumers walk out of record stores empty-handed because they couldn’t find the record they went in looking for. Similarly, so-called anti-piracy countermeasures make purchased product less versatile then unauthorized downloaded files. Digital distribution and manufacturing-on-demand could create new income streams, but not so long as those systems offer less convenience, quality and value as so-called “peer to peer”.

Peer to peer file sharing is really just interactive radio – consumers get to listen to exactly what they want – when they want it. This demand is not addressed by the record industry. In fact, it can’t be offered legally at any price. And as I think I’ve illustrated, technology and reality will insure that supply finds its way to meet that demand.

My partner Fred and I therefor support compulsory blanket licensing. The same way restaurants, radio stations and elevators pay for background music, a tariff on communications technology could permit non-commercial file sharing to flourish, and copyright owners to benefit financially. File sharing is NOT piracy. Piracy is big fat guys manufacturing fake CD’s in Mexico and selling them at swap meets. File sharing is tens of millions of music fans swapping copies of things they wouldn’t otherwise buy. An ASCAP or BMI like pool of money allocated in an equitable way amongst copyright owners is the only solution that could be of benefit to creators, consumers and copyright owners. Compulsory blanket licensing for non-commercial file sharing is the equivalent of loosening a tourniquet tied around the entertainment industry’s neck.

The problem is that we can’t give consumers what they want. The symptom is that they can get it without our help. We can either engage in futile attempts to eliminate their supply, or we can monetize their demand.

The 2002 SOFA report found that 49% of Americans now think the first amendment goes too far in the protections it provides. This compared to 37% a year ago and 22% the year before that. Fred and I believe this is in no small part an unintended consequence of the various wars we have declared on various symptoms of various problems. The entertainment industry, largely a beneficiary of the protections afforded by the First Amendment, should buck this trend, and embrace freedom.

Thank you for allowing us this opportunity to speak. Let me reiterate Fred and my congratulations to the other honorees, and our appreciation to the presenters, performers, our friends and family. To my mother, sister and brother-in-law for travelling here tonight and to my beautiful wife and daughters who inspire me to try and leave the world a better place.

Good Night. Drive Safely.