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Weekly Column

Steal This Column: Criticism Won't Change the DMCA, but Breaking the Law Will

Status: [CLOSED]
By Robert X. Cringely
bob@cringely.com

After last week's column about BayTSP and its CEO, Mark Ishikawa, I received hundreds of critical e-mail messages. For those who missed the column, it is available under the "Old Hat" button on this page. For those who can't be bothered to find that button, I explained that BayTSP is a Silicon Valley company that tracks pornographers for the FBI, and music and movie pirates for major movie studios and record labels. This makes BayTSP the bad guy to those who oppose the law it generally acts to enforce, the Digital Millennium Copyright Act. What's strange is that my hundreds of messages were, for the most part, less critical of BayTSP than they were of my choosing to write about it.

The messages generally nit-picked at what the writers perceived as flaws in my column. I had written that Ishikawa's business card gave only a post office box, so readers searched domain listings and found BayTSP's address. I quoted Ishikawa as saying that kiddie porn was a precursor to child abductions, that child abductions were a growing problem. "Not so!" claimed the e-mailers, saying there was no proven connection between kiddie porn and violence, and that abductions were actually going down, not up, in frequency. And I quoted Ishikawa as saying that his company probed only public ports on consumer computers, that it knew where every peer-to-peer file was going, and that a major bust is coming in October for movie pirates. "How does BayTSP know what ports are public?" asked my critics. How can BayTSP have any impact outside the United States? And the Department of Justice has said it isn't likely to pursue cases that don't involve damages of at least $100,000, so nothing will happen anyway. I'm wrong, wrong, wrong, they say, except of course, I am not wrong at all. Those were Ishikawa's words, remember, not mine. I'm just the messenger.

But the greatest criticism I received was for not arguing with Ishikawa, for not fighting him on behalf of the beleaguered Napsterites, for not at least giving the guy a wedgie.

What I sense here is a lot of pain, anger and frustration over the Digital Millennium Copyright Act, the law that BayTSP largely enforces. "Are they deputized?" the critics asked. Are they licensed private eyes? How can a private company enforce a law?

The DMCA is a bad law that protects intellectual property rights by limiting free speech. Those who oppose the DMCA (I am one) should feel frustrated that it was even passed and that it seems likely to endure. But don't blame me for it. Most readers had never heard of BayTSP and had no idea how the DMCA was enforced until last week's column, but for some reason, nobody thought to thank me for telling them. Knowledge is power.

This reader response reminded me of what happened when my show "Y2K: The Winter of Our Disconnect?" aired in October, 1999. I received more than 800 e-mail messages in the 24 hours after that show, nearly all of them angry and some even threatening violence. By my predicting that there would be few adverse effects of Y2K, the writers told me, I was dooming hundreds, maybe thousands, to certain death in the food riots that were sure to follow. But when Y2K came and went and there were no major blackouts and no shortages of fuel or food, did even one of those 800 angry readers bother to write to me again, acknowledging the good news? No.

It is fun to express anger in e-mail. We can write things we would probably never say in person. And having written them — especially to a boob like me — it is easy to forget anything was written at all. But I have a hard time forgetting.

Sociologists tell us that e-mail does a kind of social leveling that makes people bolder. Sending a flame message to the boss or even to the entire company and the boss, is so easy to do that it seems like there ought to be little consequence. But there is a consequence. As the fallen angel Belial says in Paradise Lost, it embrutes us, making us less sensitive to our own harsh words. At the same time, having expended our energy in self-righteous but poorly aimed bursts of anger, we just don't have any energy left to actually do something about the real issue at hand.

The DMCA was not adversely affected by any of those written hand grenades thrown at me, nor was BayTSP inconvenienced at all by the crackers who tried to crash its e-mail and web servers.

So stop whining, I say to the folks who wrote me last week. Stop grasping at poorly formed logical straws that may make you feel superior but don't make any difference to the world. It doesn't matter what definition one uses for a public port in this context. And whatever internal rules we think the Department of Justice follows for determining whether a crime is big enough to prosecute are probably wrong. Get over it.

If you really want to change the DMCA it is easy to do, but it will never happen by attacking me, or even by attacking Mark Ishikawa or BayTSP.

Copyright law is changed from time to time to reflect the emergence of new information technologies and the changing ways in which our culture uses information. The DMCA was the first re-write of the copyright law in decades, and was intended to address what was perceived by the Congress (with the generous help of record companies and movie studios) as a growing problem of digital piracy. I'm not saying there is a problem of digital piracy, Congress says there is a problem.

Copyright law will probably change again. In last week's column, Mark Ishikawa (not me) speculated that the law might get another rework in eight or nine years. So the key to changing the DMCA is to get that next rewrite to happen sooner. And the only way to ensure that happens is through massive civil disobedience.

Here is the plan. Everyone who hates the DMCA has to illegally copy a movie or a song, and then tell both the Congress and the U.S. Copyright Office exactly what they did. We need 10 million or so confessed and unrepentant intellectual property pirates. That's too much illegal behavior to ignore (What could 10 million pirated copies of "Debbie Does Dallas" be worth?), but too many individual criminals to be prosecuted. Then, having pirated our movie or song, we also need to turn ourselves in to the authorities, clogging every hoosegow in America, facing our potential $10,000 fine, each of us demanding the jury trial we are guaranteed under the Constitution.

If we all do this, REALLY do it, the DMCA will be gone in a year. This follows the simple principal that if you or I drive 100 miles-per-hour on the highway, we get a ticket, but if EVERYONE drives 100 miles-per-hour, they change the speed limit. "They," whoever that is, can't afford to annoy so much of the population. We are, after all, the folks who elect all these officials who keep telling us what we can and can't do. But it isn't enough to just threaten to vote against your Congressman. To make the system really change we have to work it to death by all becoming criminals.

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