i-sako.com

TechDirt alerted me to a recent outburst by Sen. Orrin Hatch. (At first I took it with a grain of salt, but then I saw it again at Slashdot and again at MetaFilter.)

Hatch Takes Aim at Illegal Downloading

The chairman of the Senate Judiciary Committee said Tuesday he favors developing new technology to remotely destroy the computers of people who illegally download music from the Internet.

The surprise remarks by Sen. Orrin Hatch, R-Utah, during a hearing on copyright abuses represent a dramatic escalation in the frustrating battle by industry executives and lawmakers in Washington against illegal music downloads.

During a discussion on methods to frustrate computer users who illegally exchange music and movie files over the Internet, Hatch asked technology executives about ways to damage computers involved in such file trading. Legal experts have said any such attack would violate federal anti-hacking laws.

“No one is interested in destroying anyone’s computer,” replied Randy Saaf of MediaDefender Inc., a secretive Los Angeles company that builds technology to disrupt music downloads. One technique deliberately downloads pirated material very slowly so other users can’t.

“I’m interested,” Hatch interrupted. He said damaging someone’s computer “may be the only way you can teach somebody about copyrights.”

One astute observer commented that this seems to represent a significant shift in Hatch’s position a few years ago:

Senate Judiciary Committee Hearing on The Future of Digital Music: Is There an Upside to Downloading?

As Chairman of the Judiciary Committee, I take it as a basic premise that our copyright laws must play a role - a strong role - in protecting creative works over the Internet. These protections, however, must be secured in a manner which is mindful of the impact related regulation can have on the free flow of ideas that a decentralized, open network like the Internet creates. We must protect the rights of the creator. But we cannot, in the name of copyright, unduly burden consumers and the promising technology the Internet presents to all of us.

Someone else pointed out that this is, in all likelihood, an extremist statement designed to make a subsequent “compromise” on Hatch’s part seem far more reasonable by way of comparison. (That’s an unfortunately common tactic among Republicans these days, it seems. Does it remind you of Bush’s derisive “itty-bitty” remarks about the $350 billion tax cut? It should.) Yet another suggested that ”down the Hatch” might become a euphemism for the destruction of fair use.

So what would be Hatch’s compromise position? Two strikes, then your computer shuts down until you contact the RIAA (or, perhaps more likely, Microsoft) to explain your behavior? (Don’t laugh, you can expect Microsoft to pursue that kind of control in future versions of Windows.)

It seems to me, though, that this whole notion of destroying or shutting down someone’s computer because they’ve been downloading music in violation of copyright laws is misguided.

First of all, there would be very few people violating copyright laws by downloading music if the music industry would get its shit together and stop treating its customers like criminals and attempting to criminalize even non-infringing acts of innovation. The demand for online music services is strong, but the RIAA has been completely hostile to it. Should you retain the legal protections of copyright (which exist to help you earn money from your creations) if you refuse to acknowledge how the world would like to pay you?

Apple seems to have created a store that enables people to download music in a way that respects copyright laws for about 99¢ per song. I suspect that, given a choice, people would support such a service. Given no choice, however, many will simply download the music anyway, in violation of copyright laws. So it really all boils down to whether the consumers are given a choice, does it not? Under these circumstances, the laws of capitalism (and common sense) suggest that the RIAA should stop burying its collective head in the sand and start an online music service! They’ve already made it abundantly clear that they have the rights…

Let’s also stop to consider the rights in question here. Sen. Hatch is suggesting that people’s computers (average retail value: approx. $900) should be destroyed to protect the music industry’s right to profit from a downloaded song (apparent retail value: 99¢). On one hand, we are talking about a physical piece of property, a computer for which the owner paid a reasonable amount of money; on the other hand, we have an intangible piece of intellectual property. In my mind, the simple fact that the latter is a non-rivalrous resource that can be copied perfectly at nearly no cost makes any rights its owner would assert weaker than those of the former, which is a very rivalrous resource that cannot be copied easily. Yes, I acknowledge that this analysis is biased toward the consumer’s point of view (from the industry’s point of view, each song has a market value far greater than that of a computer), but that’s how it should be! The marketplace is supposed to respond to consumer demand; laws are supposed to benefit the people. The notion that corporations should have the same rights (or even much stronger rights, as the $900 vs. 99¢ example is intended to illustrate) as people is wrong.

Sure, the RIAA can claim that the technology is a threat to its business interests. Tell it to the people who used to make horseshoes—society has the right to move beyond outdated business models.