A War on CD Piracy, a War on Our Rights

Sonia K. Katyal is an associate professor at Fordham Law School specializing in intellectual property.

It has become more than just a war against piracy. It is a war against basic American civil liberties.

A few years ago, round one began with the Recording Industry Assn. of America filing suit against Napster, the renegade file-sharing program developed by a 19-year-old. The result was an explosive public debate about the clash between law and technology. The battleground was the Internet.

Recording industry execs and ordinary citizens lined up to declare their allegiances in the question of whether downloading copyrighted music constitutes piracy or something else.

A few years later, with Napster sputtering its last breaths, round two started. The RIAA filed a host of lawsuits against other file-sharing entities that had developed in Napster’s stead, like Kazaa, Morpheus and Grokster. The RIAA used the same rhetoric it used against Napster, but the strategy changed. If round one made Napster into the enemy, round two made file-sharing itself the scapegoat. However, just weeks ago, a California court corrected the RIAA’s rhetoric, reminding it that peer-to-peer file-sharing services are deserving of protection as long as people use them for legitimate purposes.

But the RIAA’s battle continues, each move more invasive and threatening than the last. Not only do anti-piracy devices search the hard drives of individuals looking for copyrighted music, the RIAA appears determined to force Internet service providers to reveal the identities of their users at any cost.


Already, schools across the country, fearful of threats from the RIAA, have implemented monitoring programs to track and report the exchange of copyrighted files. Employers now search through employee hard drives looking for MP3s, irrespective of whether the person is authorized to have them, and prohibit the use of peer-to-peer technologies, even for the sharing of legitimate files.

Of course, stealing music is wrong. But the RIAA’s efforts are just as misguided as its own piracy detection techniques, which often mistake legitimate files for illegitimate ones. Witness the recent cease-and-desist letter addressed to Pennsylvania State University, which accused an astrophysics professor of illegally sharing files. The problem? His last name was Usher, which the RIAA Web crawler confused with an artist of the same name. Or the time that the RIAA sent a cease-and-desist letter to a broadband provider, claiming that one of its subscriber’s sites illegally “offers approximately 0 sound files for download.”

The legislative response has been equally misplaced: Last session, Rep. Howard Berman (D-N. Hollywood) proposed a bill that would have authorized an unprecedented host of invasive measures to prevent file-sharing, including attacks on a suspect’s computer that deny service. And a few days ago, Sen. Orrin Hatch (R-Utah) proposed destroying the computers of individuals who illegally downloaded material, pointing out that damaging someone’s computer “may be the only way you can teach somebody about copyrights.”

Now, round three begins. The RIAA’s efforts have culminated in yet another display of unilateral aggression. This week, the RIAA announced that it would track down and sue hundreds of file sharers. In doing so, the RIAA pits itself against ordinary Americans who use file-sharing programs legitimately.

The deeper question is why Congress would let the RIAA wage such a war without even a shred of opposition from Capitol Hill. Americans enjoy online freedom and take their rights to privacy, fair use and free speech seriously. But these rights appear to have swiftly collapsed in the face of threats by the RIAA and congressional inaction.

Most people support the protection of copyrighted works from unauthorized file-sharing, but not at a cost that compromises the civil liberties that our nation has traditionally cherished. In the end, we will have to ask ourselves whether the music we love is really worth hearing, especially when it comes at such a grave cost to our individual freedoms.