Yes It's Us

Reader’s of last Monday’s Crimson were met with something of a confusing mixed message. A front page story advertised the debut of Wirehog—the latest from thefacebook.com creator Mark E. Zuckerberg ’06-’07. Wirehog is a peer-to-peer file sharing tool that interfaces with thefacebook and allows its users to swap content—regardless of its copyright status—with friends at Harvard, and Stanford for the moment, and what will surely in short order be a wide network of colleges and universities.

But just a bit further on in the paper, the Motion Picture Association of America (MPAA)—now led by former Institute of Politics Director Dan Glickman—had taken out a full page ad displaying, under the ominous question “Is this you?,” a long list of the Internet addresses of peer-to-peer filesharing users who had been caught infringing on motion picture copyrights. “If you think you can get away with illegally trafficking movies, think again,” the ad cleverly challenged: “Lawsuits begin this week.”

It’s important as a first observation to note that Wirehog itself, like most such applications, is probably not an illegal piece of software. The basic standard for legality amongst peer-to-peer file sharing clients, according to the courts, has been that the software has “substantial non-infringing uses,” and wirehog.com proudly proclaims that you can use the software to “share pictures and other media with friends.” Pictures, presuming you took them yourself, are probably fine. “Other media” are what is likely to get you into trouble: it is almost certainly copyright infringement to use Wirehog to make reproductions of copyrighted works—which, so far as I can tell from a cursory scan of the files my friends have already made available, looks to be the software’s greatest use by a long shot.

To be fair, Wirehog is not the only game in town for illegally trading music and movies. There are the old classics like KaZaA, and then there are newer entrants into the playing field, such as bittorrent—which, certain studies have suggested, may currently be responsible for something like 30 percent of all traffic on the Internet.

And despite what the Yale Daily News, The Stanford Daily, and even our very own Crimson had to say about this matter last year when iTunes first appeared, there’s no real reason to believe that using Apple’s ubiquitous music playing software to share music over a college dormitory network is legal. The fair use doctrine that might be used to determine whether copies made with Wirehog are okay doesn’t apply here at all, because iTunes streams music rather than creating reproductions, and it seems pretty likely the law would consider making songs available in this way to be a “public performance,” a right reserved for the holder of a copyright.

The situation we find ourselves in is a bizarre one: something like 90 million Americans—including, I would wager, better than 95 percent of Harvard students—are more or less daily breaking the law. Most of them don’t even know what the law says, and just about all of them don’t care.

All of them, that is, except the experts. If you were to follow the legal debate on copyright law (and I’m going to bet that you don’t), no matter which side you latched on to you’d be convinced the creative apocalypse was near. Academic legal scholars such as the fellows at Harvard Law School’s Berkman Center for the Internet and Society are quick to caution that with extensions of the length of copyright and with legislative grants of additional powers that undermine the already weak fair use doctrine, the ability to use the existing pool of creative work to new ends—to publish documentaries that include stock footage and write songs that include samples of other songs, for example—is in grave peril. And if you were to ask Mr. Glickman, he would surely explain that the movie industry and all the wonderful creative engines behind it are on the verge of being overrun by pirates who are robbing honest workers of the money they need to feed their families. If no one will pay for movies because they can get them for free online, who will make them?

So if we’re damned to a bleak intellectual future no matter which way we turn, why the apathy? It could just be a “party while we still can, because it’ll all be over soon” attitude, but somehow I doubt that. I think it’s deeper. During the Napster lawsuits in the late 90’s I made a $20 bet with my father that 18 months later, people would still be able to download copyrighted music easily and freely on the Internet. I won, and now it’s been something like four or five years, and the pirates are stronger than they’ve ever been.

And yet, despite a few studies that have suggested trends one way or another in recording industry and motion picture profits, it doesn’t appear that anything particularly horrible has happened as a result. Mainstream artists—the kind that used to make a lot of money—still make a lot of money, and the independent ones have a listening base that cares enough about them to pay for their recordings, for the most part.

People tend to understand and accept the parts of the copyright law that make sense to them. And we tend to behave in ways we think it’s unlikely will get us into trouble. I would argue that as long as finding KaZaA users to sue remains as easy as shooting fish in a barrel, industry executives will probably not turn their efforts towards cracking down on college iTunes users or even Wirehog, unless they feel they can sue Apple or Mark Zuckerberg and get the software itself removed from the market.

So I reply to Glickman’s ad, on behalf of the Harvard community and perhaps of college students in general: Is this us? Yes, though it’s not clear everything that we’re doing is wrong. Do we think we can get away with it? Apparently so, though you may yet prove us wrong. But so long as we have people aggressively fighting this question from both sides, I think in the long run we’ll be just fine.

Matthew A. Gline ’06 is a physics concentrator in Quincy House. His column appears on alternate Mondays.