Justice Department as antipiracy shill?

In response to peer-to-peer file swappers, the U.S. Congress is considering legislation that would place the Department of Justice at the head of a public education campaign about the niceties of copyright law.

While I applaud effective deterrence against the use of peer-to-peer technology to commit piracy, I find this proposed legislative response severely misguided on numerous levels.

The job of the Justice Department is to prosecute crimes--not give lectures and educate the public. In order to launch an effective campaign on the proper use of copyrighted material, the department would first have to educate itself. Given its crime-fighting orientation, I have little confidence that it would ever adequately explain public doctrines such as "fair use" or other proper uses of copyrighted material.

Under the proposed bill, the Justice Department would be under no obligation to ensure that consumers are informed of their fair-use rights to view, excerpt, and copy digital newspaper articles, music clips and other media in the privacy of their homes. At a minimum, it should be required to balance its presentation by emphasizing consumer rights. Otherwise, the education campaign would likely frighten users and chill the exercise of their historically protected rights.

For example, an aggressive antipiracy campaign could have the unintended effect of discouraging positive uses of peer-to-peer systems--such as the interchange of ideas for scientific research and the sharing of family recipes--out of the fear of criminal prosecution. Just as likely, the campaign would scare students away from legally downloading a music or video excerpt for use as part of a school project.

We have already seen a 12-year-old honors student sued by the Recording Industry Association of America, which mistakenly thought that she was using her computer as an Internet-accessible digital jukebox. In addition, we have seen the threat of lawsuits deterring professors and scientists from engaging in legitimate scientific research. We don't need to make things worse by putting FBI agents on TV, waving handcuffs.

An aggressive antipiracy campaign could have the unintended effect of discouraging positive uses of peer-to-peer systems.

The Justice Department has more pressing matters to attend to--such as helping in the war against terrorism. Unfortunately, given tight budgets in Washington, D.C., any funds that are used for this new education campaign would almost certainly divert resources from these more urgent priorities.

Finally, if the Justice Department, at public expense, decides to educate the public about respect for copyright laws, an indefensible precedent will have been set. It would be very difficult for Congress to draw the line and say "no" to the next powerful interest group that wants a tax-funded education campaign to promote respect for another criminal statute in furtherance of its commercial interests. There is no need to start down a slippery slope of having law enforcers become educators, depleting the department's limited resources or redirecting it from its principle responsibility of enforcing the law.

In short, the proposed legislation adopts a fundamentally wrong-headed approach to copyright education and piracy prevention. In my view, an effective and appropriate education campaign should come from those who would benefit most from it--the music and movie industries. In fact, certain companies have begun to do just that, and I support their efforts.

There is no need to start down a slippery slope of having law enforcers become educators.

One studio, for example, airs short clips before the main attraction in theaters that focus on the lesser-known victims of piracy: the film crew, makeup artists and others. This is a good start, but just that--a start. For affordable sums, these industries could mount a substantial TV and radio public education campaign more effectively--and appropriately--than can the Justice Department.

An effective approach to online music piracy prevention would be for record labels to put their entire inventories of recorded music on lawful sites that allow for the permanent, portable downloading of reasonably priced single tracks.

The music industry has started moving in this direction. The success of Apple Computer's iTunes demonstrates that this model works and is what consumers want. The number of downloads from iTunes has broadly exceeded expectations. Now, other Web sites are offering music on a pay-per-track basis. I am convinced that a continued movement in this direction, coupled with an industry-sponsored education campaign, is the best response to peer-to-peer abuse.