Fred von Lohmann - The Legal Campaign Against Software Developers and Users

Interview with Fred von Lohmann
The arc of digital technology has been to empower individuals, to empower end-users, fans, customers, consumers, whatever you want to call them, traditionally in copyright law the targets, the people you put pressure on if you're a copyright owner, have been intermediaries, people who print books, people who duplicate video cassettes, people who make records.
It used to take a lot of expensive equipment to do that, so as a copyright owner if you could crack down on the people who have the record-pressing facilities you more or less had taken care of your problem.
But of course digital technology is rapidly changing that, we live in a world now where each of us has the ability to make records, to press records, to share records, to transmit records, music to everyone in the world.
And so what you're seeing is increasingly an effort by copyright owners to control the technology that makes that possible, so for example to try to sue people who make software to sue people people making hardware, and ultimately really the focus turns on the individual themselves, So mp3.com, was a company that was trying to let music fans enjoy there own music wherever they happen to be, wherever they where connected to the internet and they were sued for trying that  because they didn't get permission from the major music labels first, and they ultimately lost that lawsuit so that approach, having a central website that stores your music on your behalf, was pretty much put out of business, then next came p2p. P2P didn't rely on a central website, instead you had a situation where each of us stored our music on our own computers and transmitted that music to each other directly.
there was no longer a website they could target, instead they targeted the software.
which was capable of doing that and companies that made that software So you saw lawsuits against napster, aimster, audiogalaxy, grokster, I-Mesh, kazaa, all of these companies were sued.
And in the end essentially the entertainment industry succeeded in driving the technology out of the mainstream commercial field.
They didn't succeed in shutting down the technology, there's more filesharing going on today than ever before.
But they did succeed in driving the companies out of it.
There are now very few people in the business, making money selling that software.
Turns out there are many people who make the software as a hobby without thought of business and they continue to make the software available and that's what's currently being used more and more.
But in the end failing in their effort to stop this ability to share music among like-minded bands, the industry has turned to suing individuals and so the US in 2003 the recording industry started suing hundreds of individuals, ultimately tens of thousands of individuals for downloading music without permission.
Or to be more specific, for uploading music, for sharing this music with others.
The movie industry joined in and has also sued thousands of people in the US they won't tell us exactly how many, but they've confirmed there are 1000s and they continue to sue 100s of people at a time on a regular basis.
Most recently the recording industry has focused on college students it has been bringing lawsuits against hundreds of college students every month.
So, here we see a shift, being unable to change reality by suing technology companies although they have tried to mould the law so that they could use the law against future innovators.
They've also extended their legal campaign against individuals.
And they're under no illusion that they'll be able to sue every person instead what they've thought to do is to sue a few people punish them severely enough that they can essentially intimidate other large number of other people.
It's really as though they decided to intimidate the village they would just chop off the heads of a few villagers, mount those heads on pikes as a warning to everyone else.
Well, not only I think that's an immoral way of trying to control the public, but it's also terribly unfair to the few villagers who have had head they're heads taken off to use as an example against others.
So you see grandparents and college students and parents being targeted  for multi 1000 $ settlements at a time when we know their neighbours, colleagues and classmates are engaged in the same activity and have gotten away scot free.
So it both doesn't work - ineffective it's also very grimly unfair.
The No Electronic Theft Act was one of several laws that have been passed to extend criminal liability for copyright infringement.
Traditionally copyright infringement has just been a civil matter: if a copyright owner catches you doing something wrong, they can sue you and force you to pay them money.
Criminal infringement liability, the ability to prosecute you and throw you in jail, has been reserved for circumstances of commercial piracy, circumstances where someone has made 500 copies and is selling them on the street as a competition for the real thing.
Well, in recent years, copyright owners have not been satisfied with that, they have wanted to reach out and have criminal recourse against people who are engaged in non-commercial activity, and the NET was the beginning of that it was enacted in response to a guy who had a site, a BBS at the time that allowed people to upload and download software, and he wasn't getting paid he wasn't in it for the money, frankly, it was a hobby for him, and ultimately the copyright owners persuaded congress to pass a law that would basically put him in a position, and people like him in a position where they could actually go to jail.
And so they created a model that said: "Well... if you share or make available or copy more than a certain number of works, worth a certain amount of money, over a certain period of time, we can throw you in jail for that.
And then of course since then there have been additional amendments that have been passed, in an effort to try to extend that to reach p2p filesharing, people who are not in it for the money, nobody on p2p is getting paid for sharing the music, the movies, and so, recently congress amended the law again to say if you share a film  that is not yet on DVD, that is just in theatres but not on DVD, doing that, for no commercial purpose whatsoever, is a criminal offence, and you can potentially be criminally prosecuted and potentially jailed for doing that.
And so we're seeing this ongoing one way ratchet, that says we need more and more remedies to try and punish people for making copies, even if they're doing it without any intention of commercial gain.
The efforts to stem music fans, movie fans making copies of the things they love, those efforts really haven't been very successful. And we see an increasing number of laws that are being pressed that will try and increase the penalties against these people.
What I think is ultimately a futile attempt to essentially hold back the tide.
We're seeing interestingly even an resistance on the part of law enforcement to get dragged into this, so despite the fact that laws like the NET have been passed, despite the fact that many more laws are being pushed for by the entertainment industries in washington right now, we're not seeing an eagerness on the part of law enforcement to start throwing teenagers in jail.
I think even they have begun to appreciate that this isn't the long term solution and that they will end up looking ridiculous, they will end up undermining their credibility if they are perceived as the unpaid police force of hollywood, if they are perceived as taking the side of clueless moguls who don't understand what the future looks like.
And I hope that remains the case.
The dangerous thing is that increasingly the entertainment industry is trying to connect copyright infringement with terrorism, there's an increasing effort, you see they're saying: oh p2p movie sharing is actually helping people make unauthorised DVDs which are in turn being used to finance terrorist operations in the middle east.
And I always worry, that's obviously very deliberate propaganda effort, I don't think anyone has any concrete evidence to show that Al Qaeda depends on free copies of Spiderman to sustain its efforts, but it is I think a very cynical effort on the part of the movie industry to try to force the state, to try to force law enforcement officials, to basically be their unpaid policemen on this issue.