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Terror-Level Infringement?

Since Sept. 11, 2001, most folks agree in principle that we ought to be on a heightened state of alert. There are bad people who want to get us: They’ve shown they can do it, and stopping them before they do it again is a good thing.

And when we tell the government to circle the wagons, it’s to be expected that mistakes will be made. There will be overreaching, and rights will get stepped on. It’s inevitable. But it is the citizens’ job to tell the government when it has gone too far, because the government isn’t equipped to stop itself. Like a nasty fungus or a bad roommate, the government will expand to fill any available space. Along the way, the government will gobble up everything in sight—including fundamental rights—until somebody stands up to the inertia and says “stop that.”

This column is supposed to be about intellectual-property issues, so why am I harping about the “war on terror”? Because the two things have become joined.

Last week, a multilevel governmental strike force, apparently led by the Department of Homeland Security, shut down the Elite Torrents Web site, where bit- torrent-based peer-to-peer file trading was taking place. (Bit torrent is a new and superfast peer-to-peer networking technology.) If you go to www.elitetorrents.org, you will see, between the official seals of the Department of Homeland Security and the FBI, the following message: THIS SITE HAS BEEN PERMANENTLY SHUT DOWN BY THE FEDERAL BUREAU OF INVESTIGATION AND U.S. CUSTOMS AND IMMIGRATION ENFORCEMENT. Those running the Elite Torrents site are being criminally prosecuted by the Federal Department of Justice.

Maybe I’m missing something here, and I hope that I am, but the Department of Homeland Security (according to its Web site, www.dms.gov) “has three primary missions: Prevent terrorist attacks within the United States, reduce America’s vulnerability to terrorism, and minimize the damage from potential attacks and natural disasters.” And Elite Torrents was allowing the free distribution of copyrighted materials over the ’Net. According to news reports, Elite Torrents made the new Star Wars movie Revenge of the Sith available six hours before the movie’s premiere, and was responsible for more than 10,000 downloads of the movie before the site was shut down.

One of these days I’ll discuss the legal ins and outs of file sharing over the Web, but suffice it to say that right now in this country, downloading free music, movies, and software without the copyright owners’ permission is a lot more illegal than legal, and it’s likely to stay that way. So the folks running Elite Torrents should have had an inkling that posting new movies—especially Revenge of the Sith—for free download on the Web would bring the wrath of the Motion Picture Association of America (MPAA) raining down upon them. The MPAA has always been super-aggressive against piracy and counterfeit goods, and of course it’s going to be absolutely tenacious as technology begins to allow for the quick and easy transfer of movie-sized files on the Web.

But the Department of Homeland Security? What are they doing here? Shouldn’t they be doing things like making sure some fanatic doesn’t bazooka a chemical plant or fly another plane into a building? Are we supposed to feel safer because geeky college kids can’t download pirated Star Wars movies any more?

What’s particularly distressing here is that we’re talking about the movement of information. OK, pirated information, but information all the same, and fairly benign information at that. Yeah, piracy’s a bad thing, and infringement can often be a bad thing, but frankly, not always. There are civil penalties for piracy and infringement, and if the activities are bad and systematic enough, there are criminal penalties as well. There have always been policies and processes to punish bad guys.

But it appears that the resources that are supposed to be used to keep the country safe are being used instead to keep the information industry happy and profitable. And beefed-up laws and mandates that were supposed to be used against enemies of the state—you know, the freakin’ evildoers—are being used against, at best, high-tech common criminals.

Dwight D. Eisenhower wasn’t a flaming liberal, and nobody ever accused him of being unpatriotic. Eisenhower warned in 1961, in his last speech as president, that the titans of national defense and of business, if allowed to run together, could nibble away at normal citizens’ basic liberties until the liberties were all gone:

“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

“We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

—Paul Rapp


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