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This week's ruling on uploading music was a start, but we must be vigilant if we want to avoid becoming Internet peasants, says technology journalist GEORGE EMERSON
by George Emerson Friday, April 2, 2004 - The Globe & Mail, Page A19 It's a good thing Konrad von Finckenstein, my new favourite judge, went to law school instead of trying to be a rock star. He doesn't have a catchy name. So the bullies who run the entertainment industry would have forced him to change it, just at they tried to warp John Mellencamp into John Cougar until he stood up and reclaimed his identity. But I hope our Federal Court judge's name becomes a byword and a new rallying cry for our rights as citizens, consumers and taxpayers in the digital millennium. Maybe we'll have to shout, "Von, man, you rock!" every time we start to get back some of our privacy and property rights that are steadily being eroded by corporate greed and dumb legislation. Mr. Justice von Finckenstein has, for the time being, slapped down the international entertainment industry's attempt to get what are, in effect, private corporate wiretaps on people who may or may not be sharing music files over the Internet. They already have them in the United States, thanks to current interpretations of a wrongheaded bill called the Digital Millennium Copyright Act, which Congress passed in 1998. Relatively few people are file-sharing, and those who are doing it are not substantially hurting music sales, so maybe you think this case isn't such a big deal. But what's at stake here is vital to every citizen and taxpayer and to our hard-won civil and commercial rights.
Here's one way I feel I am being taxed like a medieval peasant by the corporate lords of the digital age. Every time I buy a blank computer disc, I pay a levy called the Private Copying Tariff. A blank CD costs me about 35 cents, and exactly 21 cents -- 60 per cent! -- goes to an obscure but rich lobby group. It's called the Canadian Private Copying Collective, which appears to be a bunch of people in the music industry. They didn't ask us writers to join the collective, even though I'm sure some writers are convinced the invention of the photocopier has deprived them of the opportunity to own a bigger house and a huge yacht. Private copying of any copyrighted material is not illegal, as Judge von Finckenstein clearly reiterated Wednesday. But somehow, in 1997, the CPCC quietly convinced Parliament of the chaos that would befall rock stars and their managers by the advent of, first, cassette tapes, and then recordable CDs, and now portable devices, and next goodness knows what new-fangled invention. Not only are we paying a tariff that we didn't vote for, it's a measure that distorts the intent of copyright, which is merely a commercial statute and nowhere as important as a common-law right, like privacy, nor is it even a tort. It also presumes that all of us are guilty of something, even though that something is, again, not illegal. I am, as the economists classify me, a knowledge worker. Almost all of the blank CDs I buy I use for copying commercial data, most of which I created by my own labour. I've bought hundreds of commercial music CDs over the years, but I am either too lazy or too busy to bother making digital copies of them, like most of the rest of us. And again, if I did want to make a copy of them, it's perfectly legal. About the only "entertainment content" I store on recordable CDs are all my digital pictures. The price I pay for storing pictures of my kids or copying them for their grandparents is that rich rock stars get to share in a hidden fund that gleans as much as 60 per cent of an innocent commercial transaction. But wait, that's only the start. In addition to their quietly won private taxation system, and beyond wanting to be able to wiretap what we do on-line, now the entertainment industry lobby is proposing a special compensatory tax on all the fees we pay for Internet access. This would be not just grossly unfair for consumers, but extremely anti-competitive for many businesses. In the United States, they have gone further. Courts are imposing injunctions on copying DVDs. Next, starting in 2006, U.S. federal law requires every new TV sold to have a built-in device to control how people can copy broadcast movies and other shows. You can be sure they'll try to ram that down other jurisdictions beyond the U.S. These laws and rulings are just the first of many new proposals from the corporate entertainment lobby that wants to end the long-held right to private copying in order to make easy profits, rather than adjust to changing distribution technologies and even faster-changing consumer habits. Beyond entertainment, there is talk of putting a kind of stamp tax on every e-mail. The much-hyped idea that spam e-mail is choking the Internet is the justification for this dangerous and confiscatory idea. But one of the world's most powerful men, Bill Gates, whose own company is highly complicit in creating the environment for spam, is championing it. So no matter how stupid it is, an Internet stamp tax might soon be a reality. All this, despite the incontrovertible fact that file-sharing and spam are not really problems. The only two credible, non-commercial, verifiable studies on spam found that the vast majority of people on-line consider spam to be an annoyance, at most. And the first independent statistical analysis of its kind, conducted at Harvard and the University of North Carolina, has just revealed what those of us who live on-line have long suspected, that the effect of file-sharing on music sales is "statistically indistinguishable from zero." So, Mr. Justice von Finckenstein, thanks for injecting a bit of sanity into the debate over the effects of new digital technologies. None of these effects, no matter whose pocketbook or inbox is or is not affected, is worth sacrificing our right to privacy, the presumption of innocence, or the right be exempted from unfair taxation. George Emerson, an award-winning journalist, writes a personal technology column for Report on Business magazine. He has also won awards for his work as a marketer and a creator in the Internet software industry.
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