The Critical 'I'

Read. React. Repeat.

Wednesday, August 27, 2003

DIGITAL RIGHTS AND THE COURTS
While many consider the entertainment industry's fight against file swapping and code cracking/reverse engineering to ultimately be a fool's quest, they're spending mountains of legal fees pursuing it. A couple of cases that have made news over the past couple of days:

- The California Supreme Court ruled that free speech protection does not apply to corporate trade secrets, as in the case of the movie industry versus Andrew Bunner, a software programmer who was sued for posting DVD encryption-cracking information on the Web. The matter now at hand is whether or not the encryption method, cracked through reverse engineering by some Norwegian guy, can still be considered a trade secret, since it's been disseminated throughout the globe--the cat's long out of the bag, as it were.

Just a layman's perspective, but doesn't the fact that Bunner helped kill the "secret" aspect of this count against him? I guess the court has to look at the here-and-now, i.e. things as they currently stand, rather than how the situation came to this point, and that's probably what Bunner's lawyers will use as defense. Still, I can't believe the court won't take this into account; essentially, the encryption technology would still be secret (or at least relatively secret) if it wasn't for the actions of Bunner (and others like him).

- Meanwhile, in Washington DC, the Recording Industry of America's fight to subpoena file-swapping users has uncovered some interesting information on how the association is tracking down offenders. At issue is an alleged violator's (known only by her KaZaA nickname, "nycfashiongirl") contention that she was unaware of engaging in any illegal fileswapping, never obtained songs off the filesharing networks, only used the KaZaA software as a ripper and player, etc. The industry had demonstrated, by going through nycfashiongirl's hard drive and the files/programs in question, that she's lying: Digital fingerprints on the music files show that they originated from sources other than the CDs she says she ripped, etc.

First off: Anyone even a little familiar with filesharing programs knows this girl is full of shit. No one uses a program like KaZaA or Grokster solely as a media player. That's nonsense. If you've got it installed, and you've got an Internet connection, then you're using it as part of the fileswapping network. It seems pretty ridiculous to assert otherwise.

Again, another layman's observation: The article seems to suggest that part of nycfashiongirl's defense is that she was trading only the music files she ripped off her own CDs, as if this constituted fair use. As I understand it, this isn't true. Fair use covers her making copies of the tracks onto her own computer or portable media player, for her own use; but it doesn't allow her to then make those tracks available for copying over fileswapping networks. That's the crux of the whole fileswapping issue, really: The RIAA generally couldn't care less if people make copies of music off CDs; it's the distribution via digital duplication/downloading that's the problem, that damages the industry by depriving it of potential sales. This is an important distinction, I think. The notion that she's out of trouble if it was only the files she personally ripped, from CDs she bought, that were set loose on KaZaA, is false. If her defense is really going with that argument, I'd say they're dead on arrival.

One common thread in both cases, aside from the obvious digital rights questions, is the ignorance tack both defendants are using. Bunner and nycfashiongirl are claiming they weren't fully aware of what they were doing or what they were dealing with, and for this reason, they're not guilty of malicious actions. That seems like a crock in both cases.