Scott Matthews, the developer of Andromeda (software that turns collections of music files into streaming Web sites), has written in Salon a critique of the EFF's filesharing policy (Copying isn't cool). The EFF's Jason Schultz has written a response (File sharing must be made legal). You can also check out the EFF's "Let the Music Play Campaign" page. Though I am a strong supporter of the EFF generally (darn tootin' it's Shamnesty), I have to say I agree more with Scott Matthews on this one. It is not clear to me that the EFF's policy proposal would be an improvement on the current circumstances and it certainly leaves many questions unanswered. See also, bIPlog (Differences... in the Music War). For example,
EFF Supports Suing 12-yr Olds and Grandfathers for Movie and Software Piracy, Just Not Music
At least, that seems to be EFF's implied position. They say that it doesn't make sense to sue the 60 million Americans who fileshare, that there are better solutions. However, the only solution they offer is restricted solely to music. Maybe the EFF thinks 12-yr olds and grandfathers should be immune for all filesharing, but they aren't making that case very clearly.
One question is, simply, why? If it is okay to share the latest album from your favorite artist, why isn't okay to share the latest movies? Last time I checked, going to a movie theater is seriously expensive - I would be much happier if Hollywood lowered its prices. Heck, I'd probably go to the movies more often. And I'm not sure who would win the Oscar for "Worst Entertainment Industry Association," the MPAA or RIAA.
And really, how often do I use Photoshop? I shouldn't have to pay full price for the handful of times a year I use that software package.
Now perhaps there are good reasons to distinguish filesharing one type of media from another, but the reasons would have to be compelling in the digital world, where bits are bits. Will EFF answer this question? Should we have distinctions between filesharing of different media types and, if so, why?
If there isn't a good reason to distinguish them, if filesharing should be legitimate, period, what solution does EFF offer for these other media? Perhaps it is just that the voluntary collective license is good for music, but some other solution would be right for movies. Will the EFF explain why a collective license is not appropriate for movies the way it is appropriate for music? I don't expect EFF to have all the answers, but perhaps they could point in the general direction of a solution.
Everyone Should Be a Copyright Lawyer
Now, perhaps the EFF is comfortable making distinctions between filesharing of different media, or of different solutions for filesharing. However, whichever is the case, this means that different media will be treated differently. This is no problem for Schultz, who noted in his response to Matthews that "Copyright law has always been a patchwork quilt, treating different works in different ways." But Schultz is a lawyer trained in copyright law.
However, Schultz's statement is only partially true. Initially, most copyrighted works had essentially the same protections, though the types of works that were covered were far more limited then is currently the case. As copyright law developed, however, the interested industries worked out patchwork compromises that were officially sanctioned by Congress. As a result of compromises by industry, existing copyright law has become incredibly complex with all sorts of freaky details that only members of the ABA's IP bar could love or understand. However, this hasn't caused too much trouble since most people don't have to deal with that complexity; only lawyers and people in the copyright industry have had to worry about it. When people are confronted with that complexity they are usually completely boggled and it would take an awful lot of education to explain it to them.
I think the existing complexity is bad enough, and has created serious market distortions, but the EFF seems to be arguing that we should add additional complexity and bring that complexity down into a realm in which the average citizen will have to worry about it. EFF is essentially arguing that it is okay if we treat music filesharing different from other types of filesharing, because that is the way it has always been done. However, under EFF's plan, average citizens will have to be cognizant of arcane and what many will consider to be nonsensical distinctions:
Parent: Okay, Susie, it's okay to trade a song, but not the music video that accompanies it. It is okay to upload the soundtrack from your favorite musician's vanity movie, but not the movie itself. Also, you can rip the song from the special acoustic performance on cable and upload that, but not the special itself. You can put a song on your webpage, but not if you have a tip jar or participate in the "Hello Kitty" affiliate program.
Susie: That doesn't make any sense mommy.
Parent: It would if you did your homework for copyright class like you're supposed to.
The EFF's Plan Doesn't Solve the DMCA Subpoena Provision Problem
I agree the DMCA subpoena provision is terrible and should be modified to provide more due process and privacy protection, but this law needs to be reformed regardless of what happens to filesharing. Schultz claims that "a system that legalizes file sharing also immunizes file sharers against DMCA subpoenas, since copyright owners would no longer have any basis to obtain file-sharer names." That would be true, except that the EFF hasn't offered a system for anything other than music. In order for that statement to be true, we would have to immunize all filesharing of all media, but EFF isn't offering a proposal for what happens when you legalize all filesharing for all media. Additionally, even under many of the plans for music, not all filesharing would be immune. For example, most plans only privilege noncommercial filesharing. Those who fileshare for commercial gain would not be immune. The DMCA provisions could still be used against those people, and it would still be subject to abuse. So, making filesharing illegal doesn't solve the DMCA subpoena problem. And it is not even clear how much it alleviates it, since there is nothing in the current law about distinguishing between commercial and noncommercial infringment.
People, Most Likely Including 12-yr Olds, Will Still Be Sued Under EFF's Plan
The EFF's plan still requires people to pay for music. If payment is voluntary, and only $5/month, what do you do with those who will still try to get the music for free? As UCLA law professor Eugene Volokh noted on The Volokh Conspiracy, it is hard to compete with free (Recorded music: A reader writes). Unless you make it costly to stay out of the "voluntary" system, free filesharing will continue. Initially you might get a lot of people sign up to pay, but eventually people will begin to drop out. Who wants to be the last "sucker" paying for something that is widely available for free? That means you are going to have to sue people and make them pay serious fines, most likely a few thousand dollars or so, if they don't participate in the system. Hmmmm, sounds very similar to the current situation.
The EFF does acknowledge that government might enforce a tax instead. However, if the EFF thinks that voluntary will work, they should be upfront that voluntary must be enforced by lawsuits. Which they sort of note here ("Consumers who don't download music, or don't mind the risk of a lawsuit, would not be required to buy a license."). Which brings me to the final point of this piece, though I still have much more to say and question regarding the whole idea of compulsories or voluntary collective licensing.
EFF's Concern for Filesharers is Not Based on Principle but on Price Points
If the EFF acknowledges that lawsuits are necessary to enforce a voluntary collective licensing scheme, then their opposition to the RIAA lawsuits is not based on principle, but on price points and business practices. What the EFF is saying is not that filesharing should be protected from all lawsuits, but that the prices the RIAA's members are charging are too high or that the RIAA should change its business practices. If the price were lower ($5/month) and the licensing terms more agreeable or the RIAA was giving more money to artists, then lawsuits would be perfectly acceptable. Unless that is not what the EFF is saying, in which case, I have to ask why do they think that voluntary payments would work? After all, just as the option of collective licensing already exists for the RIAA's members, so does the option of voluntary payment from consumers to artists. If the discussion is really about price points and business practices, why should the RIAA be the one to negotiate with the threat of lawsuit not an option?