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Still sticking it to the consumer

perspective Gigi B. Sohn says the entertainment industry is misleading the public when it comes to technological innovation and free expression.

perspective We're down to the last few days of this Congress, in a lame duck session, and the recording industry is still trying to stick it to consumers.

The industry continues to push legislation that would outlaw new, innovative devices that consumers use to listen to satellite radio and digital terrestrial radio.

It is because of efforts like this that Public Knowledge is proud to join with the Consumer Electronics Association and other public interest and industry organizations in launching the Digital Freedom Campaign. The campaign is intended to ensure that consumers continue to have the right to use lawfully the technology and digital media that they own.

After years of fighting entertainment industry-supported legislation, litigation and business practices intended to limit the rights, technological innovation and free expression of consumers, there was no better time for industry groups and public interest organizations to fight back.

The collective amnesia the entertainment industry has about its past and recent attempts to limit consumers' rights and technological innovation is nothing short of startling

Predictably, critics from the entertainment industry like the Recording Industry Association of America's at this effort, calling it "out of the mainstream," and an invitation to engage in "garden variety theft." These hyperbolic claims are a complete distortion of what the Digital Freedom Campaign seeks to accomplish. Neither the Campaign nor its members condone piracy, illegal downloading or efforts to encourage such activity. Instead, we seek to protect the long-held rights of consumers, artists, educators and others to use copyright materials and digital technologies legally without technological limitations or legal threats.

These are rights that the entertainment industry will tell you do not exist--witness the RIAA's recent "educational" campaign for students in grades 3 to 8. That campaign counsels that it is always illegal to use a copyright work without permission. It isn't--but so much for the "balance" of fair use that Sherman praises.

The collective amnesia the entertainment industry has about its past and recent attempts to limit consumers' rights and technological innovation is nothing short of startling. Beginning with the piano roll at the start of the 20th century, continuing with radio, TV, the VCR, MP3 players and digital video recorders (remember Replay TV?), entertainment companies have tried either to legislate or litigate innovative new technologies out of existence.

Today in Congress, the recording industry is going after the digital audio devices, arguing restrictions are needed to prevent "theft." But given that there's no way to take music off of digital receivers, where's the theft? It's in the industry perception that if you can legally record music and can organize that music as you wish, then you won't buy the CD.

As if their legislative campaign was not enough, the record companies are suing XM Radio because it permits consumers to easily record the music they pay for, and Hollywood is suing Cablevision because it provides a TiVo-like service in which the programs you choose to record reside on its servers. Even though the unanimous Supreme Court victory in the Grokster case gives the entertainment industry even more tools with which to fight real copyright infringement, it continues on a legislative and litigation strategy intended to limit lawful activities.

Particularly over the past 10 years, the entertainment industry has been on a relentless march towards ever longer and stronger copyright. Copyright terms can last a century or more; circumventing technological protection measures is a criminal act, even if done for lawful reasons; and penalties for infringement are such that entrepreneurs (and even good-size companies like XM) put their futures at risk defending them.

These changes in the law have had little effect on commercial pirates, but have instead enriched a handful of huge media companies. At the same time, our society and our culture have suffered--the public domain has shriveled, free expression has been chilled by overzealous copyright lawyers, and the functionality and interoperability of digital technology and media have been compromised.

Bringing balance back to copyright law is more important than ever, as increasing numbers of Americans become creators themselves by using digital tools to engage in social commentary and civic discourse online. Our communications system has never been so democratic--but it will not stay that way if our copyright laws are used to preserve the business models of old, centralized "command and control" media. It is time for the next Congress to revise our copyright laws to reflect the realities of today's digital culture.