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Interview with Fred von Lohmann

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The arc of digital technology 
has been to empower individuals,

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to empower end-users, fans, 
customers, consumers,

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whatever you want to call them, 
traditionally in copyright law the targets,

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the people you put pressure on 
if you're a copyright owner,

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have been intermediaries, 
people who print books,

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people who duplicate video cassettes, 
people who make records.

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It used to take a lot of 
expensive equipment to do that,

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so as a copyright owner if you 
could crack down on the people

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who have the 
record-pressing facilities

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you more or less had taken 
care of your problem.

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But of course digital technology 
is rapidly changing that,

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we live in a world now where each of
us has the ability to make records,

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to press records, to share records, 
to transmit records,

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music to everyone in the world.

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And so what you're seeing is increasingly 
an effort by copyright owners

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to control the technology 
that makes that possible,

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so for example to try to sue 
people who make software

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to sue people people 
making hardware,

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and ultimately really the focus 
turns on the individual themselves,

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So mp3.com, was a 
company that was trying

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to let music fans enjoy there own 
music wherever they happen to be,

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wherever they where 
connected to the internet

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and they were sued 
for trying that  because

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they didn't get permission from 
the major music labels first,

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and they ultimately lost that lawsuit so 
that approach, having a central website

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that stores your music on your behalf, 
was pretty much put out of business,

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then next came p2p. P2P didn't 
rely on a central website,

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instead you had a situation where each of 
us stored our music on our own computers

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and transmitted that music 
to each other directly.

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there was no longer a website they could 
target, instead they targeted the software.

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which was capable of doing that and 
companies that made that software

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So you saw lawsuits 
against napster, aimster,

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audiogalaxy, grokster, I-Mesh, kazaa, 
all of these companies were sued.

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And in the end essentially the 
entertainment industry succeeded

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in driving the technology out of 
the mainstream commercial field.

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They didn't succeed in shutting 
down the technology,

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there's more filesharing going 
on today than ever before.

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But they did succeed in 
driving the companies out of it.

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There are now very few 
people in the business,

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making money 
selling that software.

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Turns out there are many people 
who make the software as a hobby

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without thought of business and 
they continue to make the software available

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and that's what's currently 
being used more and more.

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But in the end failing 
in their effort

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to stop this ability to share music 
among like-minded bands,

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the industry has turned 
to suing individuals

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and so the US in 2003 
the recording industry

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started suing hundreds 
of individuals,

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ultimately tens of 
thousands of individuals

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for downloading music 
without permission.

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Or to be more specific, 
for uploading music, 

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for sharing this 
music with others.

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The movie industry joined 
in and has also sued

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thousands of people in the US they 
won't tell us exactly how many,

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but they've confirmed 
there are 1000s

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and they continue to sue 100s of 
people at a time on a regular basis.

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Most recently the recording industry 
has focused on college students

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it has been bringing 
lawsuits against 

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hundreds of college 
students every month.

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So, here we see a shift,

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being unable to change reality 
by suing technology companies

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although they have tried 
to mould the law

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so that they could use the 
law against future innovators.

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They've also extended their legal 
campaign against individuals.

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And they're under no illusion that 
they'll be able to sue every person

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instead what they've thought 
to do is to sue a few people

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punish them severely 
enough that they can

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essentially intimidate other 
large number of other people.

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It's really as though they 
decided to intimidate the village

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they would just chop off 
the heads of a few villagers,

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mount those heads on pikes 
as a warning to everyone else.

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Well, not only I think that's an immoral 
way of trying to control the public,

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but it's also terribly unfair 
to the few villagers

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who have had head they're heads taken off 
to use as an example against others.

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So you see grandparents and college 
students and parents being targeted

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 for multi 1000 $ settlements 
at a time when we know

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their neighbours, 
colleagues and classmates

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are engaged in the same activity 
and have gotten away scot free.

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So it both doesn't work - ineffective 
it's also very grimly unfair.

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The No Electronic Theft Act 
was one of several laws

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that have been passed to extend criminal 
liability for copyright infringement.

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Traditionally copyright infringement 
has just been a civil matter:

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if a copyright owner catches 
you doing something wrong,

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they can sue you and force 
you to pay them money.

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Criminal infringement liability,

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the ability to prosecute you 
and throw you in jail,

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has been reserved for circumstances 
of commercial piracy,

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circumstances where someone 
has made 500 copies

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and is selling them on the street as 
a competition for the real thing.

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Well, in recent years, copyright owners 
have not been satisfied with that,

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they have wanted to reach out 
and have criminal recourse

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against people who are engaged 
in non-commercial activity,

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and the NET was 
the beginning of that

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it was enacted in response 
to a guy who had a site,

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a BBS at the time 
that allowed people

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to upload and download software, 
and he wasn't getting paid

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he wasn't in it for the money, 
frankly, it was a hobby for him,

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and ultimately the copyright 
owners persuaded congress

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to pass a law that would 
basically put him in a position,

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and people like him in a position 
where they could actually go to jail.

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And so they created 
a model that said:

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"Well... if you share or 
make available or copy

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more than a certain number of works, 
worth a certain amount of money,

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over a certain period of time, 
we can throw you in jail for that.

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And then of course since then there 
have been additional amendments

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that have been passed, in an 
effort to try to extend that

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to reach p2p filesharing, 
people who are not in it for the money,

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nobody on p2p is getting paid 
for sharing the music, the movies,

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and so, recently congress amended the law again 
to say if you share a film

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 that is not yet on DVD, that is 
just in theatres but not on DVD,

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doing that, for no commercial 
purpose whatsoever,

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is a criminal offence, and you can 
potentially be criminally prosecuted

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and potentially jailed 
for doing that.

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And so we're seeing this 
ongoing one way ratchet,

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that says we need more 
and more remedies

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to try and punish people 
for making copies,

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even if they're doing it without any 
intention of commercial gain.

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The efforts to stem 
music fans, movie fans

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making copies of 
the things they love,

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those efforts really haven't 
been very successful. 

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And we see an increasing 
number of laws

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that are being pressed that will try and 
increase the penalties against these people.

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What I think is ultimately a futile attempt 
to essentially hold back the tide.

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We're seeing interestingly 
even an resistance 

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on the part of law enforcement 
to get dragged into this,

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so despite the fact that laws 
like the NET have been passed,

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despite the fact that many more 
laws are being pushed for

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by the entertainment industries in washington
right now, we're not seeing an eagerness

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on the part of law enforcement to 
start throwing teenagers in jail.

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I think even they have begun to appreciate 
that this isn't the long term solution 

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and that they will end 
up looking ridiculous,

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they will end up undermining 
their credibility

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if they are perceived as the 
unpaid police force of hollywood,

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if they are perceived as taking 
the side of clueless moguls

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who don't understand what 
the future looks like.

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And I hope that 
remains the case.

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The dangerous thing is that increasingly 
the entertainment industry

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is trying to connect copyright 
infringement with terrorism,

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there's an increasing effort, 
you see they're saying:

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oh p2p movie sharing is actually helping 
people make unauthorised DVDs

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which are in turn being used to finance 
terrorist operations in the middle east.

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And I always worry, that's obviously 
very deliberate propaganda effort,

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I don't think anyone has 
any concrete evidence

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to show that Al Qaeda depends 
on free copies of Spiderman

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to sustain its efforts, 
but it is I think a very cynical effort

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on the part of the 
movie industry to try 

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to force the state, to try to force 
law enforcement officials,

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to basically be their unpaid 
policemen on this issue.