In my last post, Hillicon Valley Gets Duped by Anti-IPR “Activists,” I noted that a group called “Fight for the Future” was dead wrong about the effects of S. 978, a bill proposing that the criminal penalties for high-volume, intentional, for-profit mass piracy should be similar, regardless of whether they involve illegal streaming, copying, or distribution of copies. Fight for the Future claimed that if S. 978 was enacted, teen singer Justin Bieber would be imprisoned for felony criminal copyright infringement.
To see this yourself, go to FreeBieber.org, a site where adults try to terrify Justin Bieber’s many teen-and-tween fans with claims like this, “Justin Faces Five Brutal Years in Prison.” A visitor to FreeBieber.org can also learn that not even Fight for the Future (“FoF”) can pretend to take seriously the premise of this site and its “campaign” against S.978.
S. 978 proposes that for purposes of imposing felony—rather than misdemeanor—criminal liability for copyright infringement, streaming should be treated about the same as copying, or distributing copies. When Justin Bieber was about 13, FoF claims that he posted to a streaming site like YouTube some videos of himself singing some popular songs without obtaining performance licenses from the writers of those songs. From this, FoF leaps to the conclusion that enacting S. 978 would result in the felony prosecution of Justin Bieber.
But that is ridiculous: young Justin would be innocent of criminal copyright infringement under then-existing law or S. 978 for at least two reasons. First, S. 978 would modify the potential criminal penalties for illegal streaming. But Bieber himself did not engage in streaming—he copied and distributed—acts that were already potential felonies under then-existing law. Second, even if Justin’s videos were unlicensed, and thus infringing, (and they probably were not), then he would still obviously lack the scienter required for criminal liability under then-existing law or S. 978. No thirteen-year-old boy becomes a criminal just because he does not know all the nuances of Internet music-licensing.
Nevertheless, if Justin’s early videos were willfully infringing, (as FoF claims) then prosecutorial discretion would be all that stood between criminal prosecution and adults who willfully streamed Justin’s “illegal” videos—knowing that they were infringing. Nevertheless, Fight for the Future is doing just that at FreeBieber.org. In other words, they actually are willfully performing the acts that they claim would get you or Justin Bieber prosecuted—and without a hint of concern. Others should thus take the claims of Fight for the Future and FreeBieber.org with a few million grains of salt.
Worse yet, not only is Frighten the Future’s campaign against S. 978 histrionically dishonest, it is also an unwitting attack on proportionality—the idea that punishment should fit the crime. Fight for the Future treats S. 978 as if it were a bill that would increase penalties for repeated criminal streaming. Wrong: S. 978 would not change the existing maximum criminal penalty for repeated streaming piracy.
What it would do is ensure that prosecutors can bring charges proportional to the more serious and commercially threatening forms of streaming piracy that should be prosecuted criminally. Today, they must choose between extremes: streaming piracy must be prosecuted as either a misdemeanor, the most minor of federal crimes, or as one of the most serious economic felonies—as racketeering under the Racketeer Influenced and Corrupt Organizations Act (RICO). 18 U.S.C. §§ 1961, 1963.
Most criminal-streaming cases that would actually be prosecuted should fall between these extremes. S. 978 would ensure that—just as they can in cases involving criminal copying or distribution—prosecutors could charge streaming-piracy defendants appropriately, without having to choose between the under-deterrence of a misdemeanor or the overkill of RICO. This proportionality is the common-sense notion opposed by the vacuous anti-S.978 “activists” at Fight for the Future or Demand Progress.
The raw inanity of FreeBieber.org thus raises some questions. Who is behind Fight for the Future? And how could they get basic realities this wrong?
Fight for the Future has “re-launched” the file-sharing piracy fansite Downhill Battle.
According to Hillicon Valley, Fight for the Future was co-founded by “Holmes Wilson.” He also “co-founded” the inaptly named KaZaA/Grokster/LimeWire fansite Downhill Battle, a site that waged an increasingly “uphill battle” to have its love of commercial piracy taken seriously. From August 2003 through August 2005, (the “preGrokster era), Downhill Battle posted an average of 16.4 rants per month. Afterwards, Downhill Battle posted an average of 1.2 rants per month, until it expired in 2009 with its last words, “Downhill Battle’s back. More soon….”
And while Downhill Battle never became “famous” for anything, the organization spent a lot of its time and energy berating people who buy online music legally—and the hard work of everyone who made that possible, including songwriters, recording artists, music publishers, performing-rights organizations, record labels, Apple, and the late Steve Jobs.
Predictably, Holmes Wilson thus concealed his past and described his re-launched, re-co-founded anti-copyright group Fight for the Future as if it were not just Downhill Battle Mach II:
We are a brand-new activist org aiming to improve the laws shaping tech (e.g. copyright) by shifting the public opinion that shapes these laws. Think the EFF… or [Public Knowledge]… but more campaign-focused (also more viral and fun).
But Fight for the Future is just Downhill Battle Mach II. For example, here is its description of the booty amassed by commercial copyright-piracy syndicates like Grokster, KaZaA, LimeWire, and Isohunt:
After spending thousands of years building libraries of donated books, why do governments try to tear them down when they happen spontaneously online?
It is absurd to describe the contents of FastTrack, Gnutella, or BitTorrent-based file-sharing networks as “libraries of donated books.” Even Free-Culture-Movement founder Charles Nesson described the contents of file-sharing networks as “porn and petty crime.” Nesson’s protégé, Professor Lawrence Lessig, has admitted, “I have given literally hundreds of speeches where I expressly say p2p filesharing is wrong, and kids shouldn’t do it. I think FREE CULTURE says that more than a dozen times.”
Nevertheless, Fight for the Future still pretends that file-sharing is really about donating “books” to LimeWire’s “libraries.” Meanwhile, back on Earth, actual grown-ups at the Consumer Protection Bureau of the Federal Trade Commission have sued one of Fight for the Future’s beloved “librarians” for duping consumers into “donating” their music, video, and personal files involuntarily—a pervasive, dangerous behavior noticed years ago by students of file-sharing less oblivious than the founders of Downhill Battle and Fight for the Future, a.k.a., Downhill Battle Mach II.