Music wars

William F. Buckley
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Posted: Oct 01, 2003 12:00 AM
A big battle is shaping up. The major players are musicians and the industry that retails their wares, and the people (mostly young) who love the music but don't want to pay for it. The musicians and their representatives argue that music is, really, a form of property. Nobody would object to the police coming in to prevent someone from stealing your Sony. So why should anyone object to the police approaching Jane Doe to take her to court for having recorded a thousand songs coming in over the Internet?

On this quarrel I have a singular credential. I am an entirely disinterested party. Perhaps not to the extent of my friend, a distinguished amateur musician and doctor. We met recently and exchanged sheepish confessions of ignorance. Was I, he wanted to know, familiar with any of the names published every day in the newspapers and magazines telling stories of things like the Bee Gees and the Hellzapoppins and the Fires on Earth? The answer was no. Although, I said with wistful thought of rehabilitation, I once wrote an entire book about Elvis Presley.

"Oh?" the doctor asked. "What was it called?"

To my dismay, I could not remember the title until a half-hour later, which was too late. On the other hand, my interlocutor confessed that he had not heard, before reading that morning's obituaries, the name of Johnny Cash.

Well, never mind us aliens. There is a throbbing demand for the music of the pop world. Enter the American Civil Liberties Union. The locus of the fight is Boston College and a student called by the authorities Jane Doe. Ms. Doe, we are given to understand, has a whole library full of music that she has taken off the Internet and, conceivably, passed on to friends and, perhaps inconceivably, sold to non-friends.

The prosecutors are asking about her pursuant to responsibilities vested in them by the Digital Millennium Copyright Act, a law that gives copyright holders broad powers to pursue suspected infringers via Internet service providers. But the ACLU is objecting, on the grounds that there hasn't been any due process observed. To isolate the identity of a heady consumer of Internet music is not the equivalent of subpoenaing someone suspected of stealing private property, they argue.

It does sound as if it were, but professor Jessica Litman of Wayne State University deals nicely with the question. "She suggests," The New York Times reporter tells us, "that the comparison between privacy rights and property rights is the sort of thing that sounds good if you say it fast, but that breaks down under close scrutiny."

Ms. Litman scoffs at the idea that privacy rights protect any and all information privately amassed, denying, e.g., to Newsweek access to your subscription record to Time. "'Property law,' she said," the Times goes on, "'is largely intended to make it possible to sell property, not to keep it secure. The property framework does fit intellectual property because those rights help artists and their representatives trade their art for money.'"

The stuff being picked up on the Internet is certainly copyrighted. And the Millennium Act seeks to stress the point by authorizing law enforcers to move against what, thieves?

Only in America: a raft of organizations is at hand. They march under the banner of P2P United. That stands for "peer-to-peer." The general idea is that the browser who shoots out the latest Bee Gee to you is, really, just a "peer," talking friendly to a peer. An organization called Downhill Battle (downhillbattle.org) fights strenuously for the Jane Does of this world and helps to mobilize legal defense and a legal and moral armory of arguments.

Questions before the house -- and before the courts: (1) Is your right to the information you have generated, or amassed, the equivalent of your right to ownership of the music, or literature, you have written? And (2) do protections that are explicit or inhere in the Constitution shield you from the official (officious?) curiosity of the Justice Department?

Jane Doe of Boston College, if ever we find out who she is, will edge us toward an answer to those questions. And who will provide her with music in jail? Who will be her peer, the faculty adviser or the warden?