In one of RIAA's high profile cases the Free Software Foundation backed defendant Joel Tenenbaum, much to the dislike of the music industry lobby. John Sullivan, Operations Manager at the FSF explains in a guest post why they think these cases impact not just music, but also free software and its technology.

Guest post by John Sullivan Operations Manager, FSF

We don’t make (much) music here at the Free Software Foundation, so it’s natural for people to wonder why the FSF has been standing up for individuals targeted by lawsuits launched by the Recording Industry Association of America (RIAA). Most recently we filed an *amicus curiae* brief in the case of *Sony BMG Music Entertainment, et al. v. Joel Tenenbaum* showing the RIAA’s theory of statutory damage awards to be unconstitutional.

Some would prefer that we refrain from fighting these lawsuits, suggesting that they are a distraction from the FSF’s core charter. But opposing them is actually an important part of our mission to support free software. First, these lawsuits represent a concerted attempt to rewrite copyright law in a way that threatens to undermine the ultimate goals of the free software movement. Second, a vocal minority in the entertainment industry uses these lawsuits as warrants to justify DRM technology and other measures to monitor and control the flow of information over the internet. Third, if unopposed, these lawsuits create a culture in which people are afraid to share, presuming sharing to be theft.

In their response to our brief, the RIAA says, “The FSF is not a neutral friend of the Court. Rather, FSF is an organization dedicated to eliminating restrictions on copying, redistribution, and modifying computer programs, classic intellectual property, much like the sound recordings at issue in this case [*sic*].” It’s unclear what legal aim the RIAA lawyers from the firms of Holme Roberts & Owen and Dwyer & Collora think they are accomplishing with this attack. Having an interest in the outcome of a case is the reason organizations file such briefs. William Rehnquist defined *amicus curiae* as, “a phrase that literally means ‘friend of the court’ — someone who is not a party to the litigation, but who believes that the court’s decision may affect its interest.”

But here, it is the public’s interest that we are defending, not our own. While we don’t agree — as the RIAA claims — that we are more “virulent” than an organization that intimidates everyone from the elderly to college students to the severely disabled into either paying “settlement” money or facing the crushing expenses of defending against unwarranted prosecution in faraway jurisdictions, the RIAA is correct that the FSF does have a position on copyright. Although we are primarily concerned not with music, but with how software can be made and shared so as to benefit and empower everyone, neither are the impacts of the RIAA’s actions restricted to the distribution of music. Their lawsuits are a deliberate campaign to rewrite copyright law through the courts. They are attempting to set precedents which will affect all works governed by copyright law, including software.

The RIAA, which in its litigation campaign represents exclusively EMI, Sony Music Entertainment, Universal Music Group, Warner Music Group, and their affiliates, would like to change copyright to be an ordinary physical property right. Through these lawsuits, they seek to establish near exclusive permanent control over each and every use of the recordings their members distribute, expanding the power of copyright owners to include things which are not part of the existing body of law, and extracting financial penalties from the largely defenseless individuals accused of disobeying them.

But copyright is not and was not intended to be a right like this. In fact, copyright requires that the public give up some of its rights, such as to free speech and free association, in order to promote another of its fundamental interests — progress in the sciences and useful arts. In “Misinterpreting Copyright,” FSF president Richard Stallman draws an analogy between this tradeoff and government procurement. When doing any kind of purchasing necessary to do the public’s work, the government seeks (if imperfectly) to minimize the amount of taxpayer money spent to obtain the needed goods. This means paying a price that suppliers will find acceptable, while avoiding being gouged by those suppliers who may claim that the goods are worth a lot more than they really are. When the U.S. Navy was accused of paying Lockheed $640 per toilet seat for some of its aircraft, people were understandably outraged, because the government had squandered the public’s money.

In the case of copyright, it’s the public’s freedom that the government is spending, to obtain in return for the public scientific and cultural goods. Right now, governments are squandering this freedom. They are spending far too much and getting far too little in return. Plenty of authors and artists are telling the government that works can and will be made without such expenditure. The international free software movement has been proving this for many years now, having successfully produced a fully functional operating system in GNU/Linux that can be freely used, shared and improved upon by anyone who wants to do so; and more recently there have been people doing similar things in encyclopedias, textbooks, and the world of the arts (including music).

Previously, because the required equipment was large and expensive, normal readers and listeners did not have the means to easily make copies. Restrictive copyright did not negatively affect them. But now, because so many more people do have the ability to easily exercise this freedom, the burden imposed by copyright restrictions on our society has become unacceptably heavy. Even while these restrictions have become more burdensome, they have become less necessary — with the cost of publishing so much lower now, less incentive is required. Instead of acknowledging this, the government has been taking the side of those who, out of greed akin to selling us $640 toilet seats, see an opportunity to freeze what should be a contingent and evolving bargain into a permanent and natural right for themselves, expanding ownership powers under copyright law far beyond its current and historical borders.

In the U.S., the new administration continues to side against the public. Vice President Joe Biden recently spoke at a MPAA luncheon. He adopted the entertainment industry’s loaded “piracy” language, saying, “It’s pure theft.” Biden also assured the MPAA that President Obama would find the “right” copyright czar. His attitude is not surprising, given his past eagerness as a senator to sponsor and support RIAA-backed legislation. He was, after all, one of four U.S. senators invited to a champagne celebration of the Digital Millennium Copyright Act (DMCA) hosted by the MPAA, RIAA, and the Business Software Alliance. Obama himself has already appointed Tom Perrelli and Donald Verrilli, both former lead attorneys for the RIAA, to be associate and deputy associate attorney general.

If we are going to achieve sane copyright law, we have to avoid confusing this institutionalization of corporate greed with “art.” In fact, it seems most artists disagree with the RIAA. Sony artists reportedly earn a tiny $0.045 for each song sold on iTunes, and most of them will never receive even that much from Sony. As one example among many, singer Courtney Love answers the charge of piracy by saying: “What is piracy? Piracy is the act of stealing an artist’s work without any intention of paying for it. I’m not talking about Napster-type software. I’m talking about major label recording contracts.”

The RIAA doesn’t stop at manipulating copyright law to gouge artists and the public. They also use their lawsuits as leverage to argue for control over any technology that could be used to distribute music. For example, they have pushed to require all wireless access points to be encrypted and closed, to restrict technologies like BitTorrent and other forms of peer-to-peer distribution, to impose bandwidth caps on home internet users, and to monitor traffic through service providers. Such efforts directly hurt free software. Because free software authors around the world work by collaboration, they rely on open distribution networks to move software, data, and conversation around. In particular, peer-to-peer technologies make this easier and cheaper for people with less bandwidth, and so are a powerful means of boosting grassroots free software distribution and development efforts.

The RIAA further attacks free software when they use these filesharing cases as ammunition to advocate DRM under the Digital Millennium Copyright Act (DMCA). It was the RIAA that attacked Princeton scientist Ed Felten for wanting to publish useful mathematical information, because this generally useful information might possibly be used to decrypt their specific DRM scheme. Sony saw no problem with secretly installing a rootkit on users’ computers, to facilitate spying on them and blocking certain activities. These efforts to turn computers against their users and to restrict technical information are on-face incompatible with free software. If we allow the RIAA to win outrageous damages in these lawsuits, then we are letting them manufacture evidence of losses due to illegal copying, which they will then use to demand from Congress more control over our technology.

Among both the government and the public, the RIAA lawsuits create a culture which frames these issues in terms that make it harder for free software to succeed, by creating a culture that fears sharing. This leads to confusion like the recent case of a schoolteacher who assumed that a student handing out GNU/Linux discs in class was breaking the law. One can hardly blame her for having this impression when the RIAA lawsuits and propaganda thoroughly permeate the news media, encouraging everyone to assume that sharing is wrong unless they are told otherwise.

The RIAA’s framing of the issue as “intellectual property” is another key way they foster this fear. They cite our opposition to this concept in their reply to our brief, and they are correct. The use of “intellectual property” language threatens to undermine the free software movement. The term lumps together disparate concepts like copyright, patents, and trademarks, which are legally distinct. The RIAA would like to lump them together because doing so increases the size of the gouge they can extract. By drawing an analogy with physical property, they erase the actual histories behind these specific areas of law and rationalize the obscene damages they are demanding. It skews discussion of the issues involved so that good solutions can’t be found, and if it is used in place of a clear discussion about copyright in the arena of music then people will accept it when discussing software as well.

The bottom line is that for art and software alike, sane copyright law should facilitate and promote sharing so that everyone can benefit from what is produced, and participate meaningfully in making it. For software, the easiest way to share is to put source code in the public domain, and not require any End User Licensing Agreement (EULA) or patent licenses. Anyone can then study and use the software, make changes to it, and redistribute changed versions to anyone they want. However, this leaves the door open for other people to use copyright law to make some changes to that software and strip away the freedom, redistributing their version without the freedoms that were originally there. Copyright law allows people to play middleman like this, intercepting works that are intended to be free and turning them into proprietary programs to control users.

To ensure that software written to be free remains free, the FSF uses a copyright license called the GNU General Public License (GPL). The GPL says that anyone is free to use, copy, change, and distribute modified versions of the software to which it is attached — as long as they pass on those same freedoms to whomever else they give the software. The GPL can do this because copyright law gives copyright holders the authority to outline those terms. Instead of using that authority to make copying illegal, the FSF uses that authority to make it illegal to make copying illegal.

Despite this, the FSF will continue working to reduce the power of copyright restrictions by fighting these lawsuits, filing briefs in specific cases, and collecting contributions to the RIAA Expert Witness Fund. We do not intend to shoot ourselves in the foot by supporting proposals to reduce the scope of copyright that would weaken the way the GPL protects freedom without simultaneously weakening the way companies like Microsoft and Apple use it as a weapon to take away freedom. But neither will we support the RIAA’s expansive approach to empowering copyright owners at the public’s expense on the grounds that it would make the GPL “stronger.” We will not accept losing the GPL as an effective shield unless as part of a plan that we could be confident would make software generally free. But neither will we confuse it with the end goal, which is a world where people are not called criminals when they want to see what the software on their computer is actually doing, or to share a copy with their neighbors, or to improve it and share their improvements.

Executives like Rolf Schmidt-Holtz of Sony Music Entertainment should get the message and back off. Although they claimed in December that they would stop filing lawsuits against individuals, the RIAA filed 62 more in the month of April alone. Citizens are tired of watching their governments squander their freedom to enrich this handful of corporations, and they are tired of being intimidated. We will continue our work to support this opposition to the War on Sharing, and to restore or replace copyright law for its intended purpose — progress in science and the arts, for everyone.

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