House Hobbles Online Innovation With HR 4279

There are a number of things the government has no business legislating. Some of these things are because government doesn't belong in a certain type of decision. Some of them, however, are because the government doesn't fully understand the issue. HR 4279 falls into the second category, along with the SAFE Act discussed here yesterday. The matching Senate bill, not yet voted upon, is S 522.

What is the purpose of HR 4279? Good question. Sponsored by Rep John Conyers Jr (D-MI), it is supposed to determine penalties for intellectual property law violations. The thought that punishment for unauthorized use of someone else's intellectual property should be clearly outlined is a good idea. It's a good way to eliminate the arbitrary RIAA fines that have been generated in recent years by the RIAA's thug tactics in going after everyone from grandmothers to children, whether they have computer access and use illegal file sharing or not.

What makes HR 4279 problematic is that it is a bill sponsored and passed before its time. You can't mete out punishment without first clearly defining the crime. It is also problematic in the amount they determined the fine for illegal files to be – a whopping $30,000 per track. That's right – per track. That works out to $360,000 for a 12 track CD!

Why is $30,000 per track so reprehensible? Because this law has been enacted before we have hashed out fair use definitions and determined what illegal tracks consist of. It is putting the cart before the horse. As it stands now, the RIAA and the legislators who support the RIAA want copies of music you already own to be considered illegal, among other unreasonable demands. That means that according to this law, if you rip a CD to your computer then lose or damage the CD, that ripped CD could be considered illegal, even though you paid for it.

Now tally that up at $30,000 per track multiplied by your entire CD collection. It's a huge number, isn't it? And all because we haven't finished redefining what is a legal or illegal file in this new day of digital information. The RIAA's argument that I can't back up my CD collection, or copy it to my iPod, has made me angry from the beginning because it makes no sense. HR 4279 seemingly reenforces this problematic notion that a consumer would have to buy the same song or album up to 7 times or more in various formats to satisfy the RIAA greed machine.

Of course, a key way this bill got passed at all was by using the “preservation of the American economy” as a talking point. It also has provisions for several new government jobs, like an intellectual property right enforcement division in the Department of Justice. Any time you invoke “our economy” or “the children” or “new government jobs at high levels” in congress you stand a good chance of getting even the least well thought out bill passed.

This bill increases the scope of government enforcement of poorly defined “infringements” past a normal scale and into the realm of violation of individual rights. “Seizing expensive manufacturing equipment used for large-scale infringement from a commercial pirate may be appropriate,” said Gigi Sohn, president and founder of Public Knowledge. “Seizing a family's general-purpose computer in a download case, as this bill would allow, is not appropriate.”

Other problematic possible repercussions include classifying family members as innocent infringers, or college students as felony infringers. How can you make that movie for film class if you can't use music that you own on CD to make a sound track? What good is an online photo album, shared, if you can't use your own photos because they grabbed a background image of something that may be copyrighted? What good is an iPod if putting your CDs, cassettes and albums on it could be construed as innocent infringement?

This bill also opens a door way for government to put a muzzle on IPs and network neutrality. This is something the behemoths of big business at the RIAA and the major TelCos have been panting for for years. Think of the possible impact this will have on companies that make much needed and often used multi purpose devices, or places that offer free WiFi (already hobbled by the SAFE Act earlier this week), or company files on remote IP networks. This bill is a huge, huge blow to the culture of online innovation if it passes in Senate.

Until or unless we define illegal use in such a way that takes into consideration fair use of copyrighted material you already own this is a bad law. We have to define illegal use and illegal files clearly, and we have not yet begun to do so. This law could create an avalanche of harm for the average person who is under the (in my opinion correct) assumption that they should be able to use the copyrighted material the bought with their own money however they see fit, not to mention its possible impact to the small business and individual online.

For further analysis of the issue, visit Public Knowledge, EFF, and PC Magazine.

To voice your opinion on Senate Bill 522 and prevent it from being passed, write your Senator here.

To voice your opinion on HR 4279 and get it repealed, write your Representative here.