Is Free Software the RIAA's Latest Victim?

Copyright holders would love to take technologies out of your hands if they can be used to make infringing copies--even those that are widely used for lawful purposes. Will they succeed?

You'd think the Open Source community would be in an uproar about this news, but the response is limited to little more than a few wry chuckles.  According to a news bulletin on the home page of SuperPimpSoft, the purveyors  of one of the best open-source newsreaders, the current version (0.9) of the GNOME-compatible program Pan will be the last to include binary decoding capabilities. The culprit? An RIAA lawsuit.

But hold on, it's just a joke. Viewed from one angle, it's very funny indeed. If copyright holders had their way, though, we wouldn't be laughing--and that's why the community would do well to pay serious attention to the issues this hoax raises. As you'll see, the RIAA's case against Napster may well lay the legal foundation for future attempts, both in the U.S. and abroad, to pry otherwise lawful technologies out of users' hands. Will they succeed?

Ha-Ha, Only Serious

Here's the story, according to the Pan page: On May 1, 2000, attorneys representing the Recording Industry Association of America (RIAA) filed suit against SuperPimpSoft, alleging that the open source startup had "wrongly encouraged copyright violation of pictures, music and even movies by providing the ability to decode and save files posted to Usenet". And that's just the beginning of SuperPimpSoft's troubles. The page claims: "Lawyers representing the heavy metal band Metallica are said to be preparing their own suit against SuperPimpSoft, citing a Metallica "flood" that appeared on alt.binaries.sounds.mp3.humor last February. Playboy, Hustler, and the American Software Producers Against Piracy commented that they, too, wanted to 'follow suit.'"

It's all a joke, says SuperPimpSoft, but, like all great jokes, there's a serious side, too. Since the early 1990s, wealthy copyright holders have won a long series of legislative and judicial victories that, in effect, treat digital media in a way that radically alters the balance between copyright holders and users of copyrighted material. The day could soon come when copyright holder interests, such as the RIAA, succeed in their quest to deprive citizens of their right to use any technology that could be used for copyright infringement, even if the technology also has other, perfectly lawful uses.  Copyright holders have been trying for years to keep a whole string of technologies out of our hands--the Diamond Rio MP3 player is but the latest example. Will they succeed?

Back to the Betamax

How did we wind up in a situation where commercial interests could deprive citizens of technologies that have lawful applications? To understand, you need to go back to the near-frenzy among copyright holders caused by the Supreme Court's decision in the "Betamax" case (Sony v. Universal). Motion picture giants Universal and Disney feared that the VCR and home videotaping would ruin their business, put actors and directors out of work, and shut down theaters.  According to the studios, Sony was liable on grounds of contributory infringement  (knowingly and willfully providing the machinery needed to infringe), as well as vicarious infringement  (failing to stop the infringement despite the ability to do so), and subsequently enjoying a financial advantage due to this negligence (see Stolowitz 1996). Among the remedies sought by the studios was an injunction against Betamax sales--yes, you read that correctly. The studios wanted to make sure that you could not legally purchase a video tape recorder in the United States.

In its pro-Sony decision, the Supreme Court cited with approval the lower court's comments on the frightening implications of removing the Betamax from the market:

Selling a staple article of commerce--e.g., a typewriter, a recorder, a camera, a photocopying machine--technically contributes to any infringing use subsequently made thereof, but this kind of 'contribution,' if deemed sufficient as a basis for liability, would expand the theory beyond precedent and arguably beyond judicial management.... Commerce would indeed be hampered if manufacturers of staple items were held liable as contributory infringers whenever they 'constructively' knew that some purchasers on some occasions would use their product for a purpose which a court later deemed, as a matter of first impression, to be an infringement (cited in Sony v. Universal).

Emphasizing the peril to society if the studios succeeded in their quest to keep the Betamax off the market, the Supreme Court emphasized that many content producers--churches, sports teams, local community organizations and a majority of producers of televised content - had no objection to the consumer's practice of "time-shifting" broadcast video so that it could be viewed at a more convenient time. The Court therefore concluded that copyright holders could not hold a manufacturer liable for contributory or vicarious infringement if the device was used, or could potentially be used, for lawful purposes: the Court specifically stressed that the manufacturer could not be held liable for contributory infringement if  the device is "merely... capable of substantial noninfringing uses" (for a discussion, see Berschadsky 2000).

In the aftermath of the Betamax decision, and in true American style, the various interests involved crytsallized into a number of well-funded lobbying groups, including the Home Recording Rights Coalition (HRRC). An organization that might be mistaken for a group representing users' interests. It's not; the HRRC is, in fact, a coalition of electronics manufacturers, whose interests may or may not dovetail with those of users. In 1992, the HRRC caved into copyright holders and supported the Audio Home Recording Act (AHRA), an ostensibly pro-user bill; it exempts consumers from copyright violations when they record mustic for private, non-commercial use. But the AHRA sets a new standard for digital audio technologies: manufacturers of digital audio devices must register new products, pay a royalty on each device and recording medium sold, and implement serial copyright management technologies that prevent making copies of copies. Since 1992, the electronics manufacturers who caved in and backed AHRA have tried--unsuccessfully, for the most part--to profit from their collusion with copyright holders, but consumers have resisted the new, AHRA-conforming technologies. Among the casualties are digital audio tape (DAT) and, arguably, Sony's mini-discs.