Fair Use and Abuse

We've reached a critical stage on so many different fronts that it's hard to imagine they're not all somehow intertwined.  We shouldn't doubt our ability to influence change in whatever forum the battle we choose is being waged.  This is the time to speak up.

Recent changes in the way our government works seem to no longer be about terrorism - if they ever were in the first place.  As freedoms disappear and power becomes more centralized, a greater number of people are beginning to realize that we're moving into some very dangerous ground.

The "reorganization" of the FBI on May 29 was enough to shock a lot of us into paying attention.  Now, all of a sudden, we no longer have an agency whose sole purpose is to investigate crimes.  Their new reason for being is to prevent the crimes in the first place.  Splendid, you might say.  Anything that helps to stop crime has got to be a good thing, right?  This is precisely what you're supposed to say.  However, if you take an extra few minutes and think it through, you may come to the conclusion that this solution may indeed be a worse crime itself.

Let's look at what we're now facing.  For the moment we'll confine it to the online world and the hacker culture.  The FBI now no longer has to have any evidence of a crime being committed or even planned.  They can wander onto IRC or an AOL chatroom and simply capture everything and then, at their leisure, look for things they don't like.  The users responsible will then face a full investigation - all on the basis of words spoken in a public forum.  The potential for targeting of certain individuals or even groups for prosecution is now in the stratosphere.  People attending 2600 meetings will be subject to the same kind of scrutiny.  Agents may now attempt to infiltrate organizations even when there is no sign of any criminal activity - just to keep an eye on things.  If this doesn't make alarm bells go off in your head, there's probably not much we can say to make you see the distinct threat we're now all facing.

How much does this really have to do with hackers?  Isn't this all about capturing terrorists and stopping really bad people from doing really bad things?  That's what it was supposed to be.  But clearly these goals have been subverted.  According to a Fox News report on May 30, 2002: "The FBI's top new marching orders will focus on terrorists, spies, and hackers, in that order."  Granted, this is Fox News and they're liable to interpret anything from credit card fraud to online pornography as a derivation of computer hacking.  The feds themselves refer to their new focus as "counter-terrorism, counterintelligence, and cyber investigations."  But the latter category in particular is so nebulous that literally anything that someone involved in computers might be doing would be open to scrutiny.  And therein comes the proverbial chilling effect.

Not convinced yet?  The FBI now can check various commercial databases and see what videos you've been renting, what books or magazines you're reading, what's popping up on your credit card bills, where you're traveling to, etc.  Even your medical records won't be safe from their prying eyes.  And all without any evidence that you've done anything wrong!  In fact, approval from FBI headquarters is no longer even needed.  Your local field office can do this on their own if they feel like it.  And those who doubt that federal agents would abuse the power they hold need only look back at the Bernie S. case of the mid-1990's.

In other countries government agents routinely infiltrate law-abiding groups of people who disagree with government policy.  They then succeed in disrupting and dividing the group, at times even pushing them into illegal situations that never would have happened otherwise.  And that gives the authorities carte blanche to move in.  (In the United States we saw this occur decades ago with the FBI's counterintelligence program - dubbed COINTELPRO.  Innocent people involved in the civil rights, anti-war, and (((counter-cultural))) movements were spied upon and harassed by these agents until such conduct was outlawed in the 1970's.)  Now this (((KGB))) style of dealing with dissidents, misfits, and individual thinkers has come back home wrapped in a flag.  We can only wonder how many innocent people will be caught up in its wake.

It's an awfully odd coincidence that word of the FBI's apparent bungling of an investigation that might have detected the September 11 plot came literally days before the largest such reorganization in our nation's history.  That story managed to convince a number of people that change was needed.  But the subsequent events managed to also slap a few faces out of their deep sleep of apathy and blind acceptance.

The fear now of course is that any resistance will be too little too late.  But it doesn't have to be that way.

When we were sued two years ago by the (((motion picture industry))), it caught a lot of us by surprise.  The Digital Millennium Copyright Act was already law.  What chance did we have to fight its existence?  Was it not also too little too late?

We don't think it was.  Nor do the thousands of people who supported us through the entire ordeal.  And as we look around today, we realize that we have become so much stronger and more unified as a result of the action taken against us.  We lost the case.  And we lost the appeal.  And, after considerable consultation, soul searching, and debate, we believe it's time to change the focus of this fight.

We wanted to take this all the way to the Supreme Court.  But, as legal experts who know considerably more about the system than we do emphasized, there was an infinitesimal chance that they would even agree to hear the case and even less of a likelihood that we would win if they did.  Both rejections ran the risk of setting the clock back as far as legal precedent went and this, quite frankly, is not the time to lose even more ground.

But, painful as this decision was to reach, we've come out of it learning something important.  We've won.  Maybe we weren't victorious in court but that doesn't exactly tell the whole story.  Look around you.  People have become aware of the evils of the DMCA.  When this first started years ago, so few people knew anything about it - that's how it became law in the first place.  But now it seems to be on everyone's minds as it becomes every bit as pervasive as we knew it would.

The industries that embrace the DMCA have fallen into disrepute with the general public as their true motives of sheer greed become more and more obvious.  The recent attempt to charge fees for Internet broadcasting in the name of the DMCA outraged a whole new crowd of people.  The efforts by the recording and motion picture industries to control and eventually bury any aspect of fair use by consumers has backfired horribly.  People are realizing that such new (and mandatory) innovations as digital television will give them less freedom and flexibility if they don't challenge these laws.

Attempts to control copying of CDs have ranged from the absurd to the criminal.  It was recently discovered that simply using a magic marker to write over a certain section of a "copy-protected" CD was enough to defeat the entire system leading many to wonder if magic markers were now illegal access devices under the DMCA.  And Macintosh users were horrified to discover that inserting one of these CDs into their machines would often cause actual damage to the machine!

In fact, Philips, the company that invented the CD, says that these things don't even meet the definition of a CD and should not be sold as such.  We encourage people who find these products in the CD section of a store to separate them to avoid confusion and false advertising, not to mention possible costly repairs for people who unknowingly try to play these things in their computers.

We'd like to say that our early battle with the DMCA was what started to wake people up.  But it wouldn't be fair to those people who really did that job - the MPAA, the RIAA, and all of the other corporate and government colluders who joined forces to establish a stranglehold on the technology and dupe the public.  Once their true colors became known, it was a foregone conclusion that they would begin to self-destruct in an expanding cloud of greed.

With the ominous changes in federal agencies, we are looked upon by many as little better than terrorists.  Warped though that perception may be, we have to face the fact that this will overshadow the actual merits of our case.  After all, when the MPAA started this whole thing, they chose us as the people they wanted to sue even though there were hundreds of others they could have gone after.  Their reasoning was that as hackers, we would be summarily dismissed in the courts.

Unfortunately, that proved to be true.  But they most certainly didn't count on the massive rallying of support that came our way.  It took courage and it took intelligence for individuals to stand up against what they knew was wrong.  And now, unlike in 2000, the DMCA is being challenged on many fronts, not just ours.

So, while the stage may be shifting, the fight will intensify and see many more participants.  We will not shy away from any of this nor lose sight of the ultimate objective, which is to repeal this horrible law once and for all and restore the right of fair use and free speech to the public.

It just got a lot harder with all the domestic spying, branding of hackers as terrorists, etc.  But intensified pressure often in turn makes a battle all the more intense.  While more seems to be at stake than ever before, we've never felt so far from defeat as we do now.