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Word out of the Wall Street Journal this morning is that the Recording Industry Association of America will cease its senseless strategy of suing its own customers and instead attempt to force ISPs to enforce the copyright laws for them.  Certain unnamed ISPs are said to already be discussing "cooperation" with them.

Ho-hum.

Let's be blunt here.  Being invited by copyright holders to discuss "cooperation" is like being invited to dinner by Hannibal Lecter.  Copyright holders aren't interested in cooperation.  They are interested in forcing ISPs to become copyright police.  They are interested in extorting as much cash as they can from every ISP worldwide.  And they are desperately interested in maintaining control of an entertainment industry whose business model died two decades ago.

Let's examine what the WSJ article purports.  First, the RIAA says it will stop suing people for allegedly downloading music in violation of the copyright laws.  Good idea, given that the RIAA has done such a sloppy job of the lawsuits that they have filed against geriatric grandmothers, toddlers and even dead people.  The RIAA should have abandoned the strategy years ago.

For the record, ISPs have always been interested in protecting copyrights and cooperating with the entertainment industry.  I've personally been part to at least five meetings to discuss "cooperation," none of which were productive because the copyright holders have virtually no idea what an ISP is or how the Internet industry really works.  Like petulant, screaming children, they cannot be reasoned with.  They want it their way or no way. 

As for the supposed "new plan" in which ISPs will take over punishing file sharers, it's drivel and nonsense.  There is no such plan, and no major ISPs have agreed to it.  To do so would require them to violate the Digitial Millennium Copyright Act, violate their own terms of service agreements, and then put themselves in jeopardy of a network neutrality complaint by throttling back the service of consumers.  What nitwit would agree to that?

What ISPs will do is to adhere to the law, as they have since the law was enacted.  That's the fair and legal thing to do. 

Meanwhile, in the spirit of "cooperation," the copyright community is said to be actively shopping for a small ISP they can sue in the US, as they did in Australia, in an effort to force changes in the law that they can't coerce Congress to change for them.

And they are pursuing a new global trade agreement that would force liability on ISPs.  ACTA is being pushed by the Office of the US Trade Representative at the behest of copyright holders in the US, including the entertainment industry, again because Congress has been smart enough not to give them their way under US laws.

The fact that the RIAA is dropping its vile lawsuits is good news for consumers -- though they didn't say they plan to give money back to the hundreds of consumers whose lives they have ruined in this decade of lawsuits.  The fact that they may be interested in working with ISPs may be good news, if they will let go of their obsessive need to punish their own customers and instead focus on ways the entertainment industry can thrive online.

I'm skeptical that they will do this.  Every time I hear about a new plan from the RIAA the words "fava beans" and "chianti" pop into my head.  It is true that there is a future for the music and film industries online, and it is true that they will need the support of ISPs to make that future.  But that future doesn't begin by asking ISPs to break the law and violate their own customer relationships on the whim of the RIAA.

Imagine a world in which our government secretly conspired with seven other countries to write new laws that would create sweeping new police powers, turn Internet Service Providers into snitches and place millions of American school children at risk -- all to line the pockets of a handful of greedy entertainment moguls.

A movie plot?  A best-selling thriller?  Bizarre fiction?

Nope, just business as usual in the Office of the US Trade Representative, an obscure offshoot of the President's staff in the White House.  For the past five years or so, the Office of the US Trade Representative has been scurrying from country to country, forcing those who want to do trade with the US to also adopt legislation similar to -- or worse than -- the Digital Millennium Copyright Act that has proven such a miserable failure in the US.

They have done this to appease the entertainment industry in the US, in a blatant political move called "off-shoring legislation."  In off-shoring, you take a really, really bad piece of legislation that you can't get the Congress to agree to here in the US, and take it overseas.  There, you use the power of the US government to bludgeon other governments to adopt the bad legislation we won't -- and then attempt to get the Congress to buy into the bad laws in the name of "normalizing" international agreements.

Examples abound.  When the US Department of Justice was unable to force US Internet Service Providers to save all the data about their customers for two years -- with no guarantees of the security of that data, and no indication of who would pay for all that storage -- they simply off-shored the bad idea to Europe.  There, the EU actually passed such a law, though with considerable resistance from clear-thinking governments.  And two years later, the EU has virtually nothing to show for it except mounting costs to consumers.  Now, Congress is being asked to pass similar laws here to "bring us into alignment with Europe."

In the US, the entertainment industries have been successful in pushing for and getting some truly bad copyright laws, including a Digital Millennium Copyright Act that allows the Recording Industry Association of America to sue millions of school kids, grandmothers who don't own computers and dead people.  Really.  I'm not making this stuff up.

But unsatisfied with their dismal performance in the US, the entertainment industries lobbied to get the Office of the US Trade Represetnative to shove our bad copyright laws down the throats of all of our business partners, whether they needed it or not (Australia, for example, has its own copyright laws, but was forced to accept DMCA-style provisions in order to get the US to finalize the most recent trade agreement).  Singapore.  Brazil.  Australia.  Vietnam.  You name the country, and we've blackmailed them into adopting our bad laws in order to enrich a handful of entertainment companies.

But that wasn't enough.

So in 2008, the United States Government initiated secret talks with the other countries involved in the G8 summit for this year, with an eye toward forcing a new global copyright agreement.  Called ACTA, the Anti-Counterfeiting Trade Agreement, this new initiative would, according to drafts leaked from the discussions, criminalize even the most minor copyright infractions, force taxpayers to bear the cost of copyright infrigement investigations, access the information of consumers without a warrant, and force ISPs to spy on their customers in search of copyright infractions.  There are great write-ups on ACTA on Wikipedia, and some excellent documents on WikiLeaks.

Just to be clear here, I don't like the idea of people stealing copyrighted materials.  And if the US government wants to conduct some negotiations in secret, I can understand.  National security and all that.  That's not my issue, though the EFF clearly feels diffrently, as do the hundreds of political and Internet leaders worldwide who have risen up in indignation over ACTA.

My issue is this: since when did the US government decide its laws were superior to that of other nations -- particualrly laws that have proven less than effective here in the US?  And when did we decide that lining the pockets of entertainment moguls is a more noble national goal that maintaining the integrity of the Internet?

ACTA has been designed without benefit of input from anyone other than bureaucrats and copyright lawyers.  It has been done in secret not to protect the integrity of the negotion process, but rather to shield the negotiations from those who would recognize them for the travesty they are.  And it is particularly galling that this is being pushed -- and pushed hard -- not by some third-world dictatorship or cabal of anti-American interests but rather by our own government as an extension of our official policy.

ACTA represents an act of bad faith on the part of the United States government.  An act of bad faith toward the broadband industry, toward consumers, toward the civil liberties guarnateed in our Constitution, toward our trading partners and toward countries unable to protect themselves from predatory bureaucrats and their bad ideas.

As a kid, I watched the TV series "I Led Three Lives," very loosely based on the book by Boston ad executive Herbert Philbrick, who in the Forties infiltrated the American Communist Party and later helped send leading members of that party to prison.  He led the lives of citizen, communist, and counter-spy for the FBI.

I also led three lives.  In the Nineties, I was marketing director for a software development company, major software pirate on the Zero-Day Warez Boards (systems that specialized in putting pirated copies of software online on the day of their release, thus making them "Zero Days"), and a paid consultant to the Software Publishers Association.  I tracked the handful of major software theft rings, collected evidence, and at the end turned our files over to the FBI.  I think those files are in a government warehouse somewhere, right beside the Arc of the Covenant from "Indiana Jones."

The point is that I spent several years working with the folks who estimated the losses of content to online piracy in order to lobby Congress and the White House, and I learned this critical fact:  they make it up.

I don't mean that they are not well intentioned, or that they are reprehensible criminals.  It's just that after they add up all the possible losses if every single person online downloaded a copy of their copyrighted work, then calculate the value of that work at full Manufacturer's Suggested Retail Price, they then round it upwards as high as possible, throw in whatever is missing from the petty cash account, add a bat's wing and eye of newt, and then add a zero or two at the end for good measure.  And viola!  Billions of dollars of losses to the software/music/film/fill-in-the-blank industry each year.  Yegads!  Congress must act!  Trade Agreements must force other countries to adopt US copyright laws!  Technologies must die!

So I was a little more than amused when the Motion Picture Association of America admitted this week that it had inadvertantly overstated their losses to downloads by college students.  My first reaction was to giggle hysterically.  My second was to wonder who finally took a close look at their numbers and called them nonsense.

I do credit the MPAA with 'fessing up to the error, though their "revised" esitmate is still what I would label "Bovine Excrement."  But the larger story here is what should happen next.

Here's my advice.  The Congress, before it passes one more draconian and unnecessary copyright act; the Office of the US Trade Representative, before it forces one more country to adopt our laws; and the US department of Justice, before they allow themselves to become the private enforcement police for the entertainment industry; should demand that all online piracy figures be audited by an independent outside accounting firm for accuracy.  Make them show that the losses are real.

Okay.  That won't happen.  If it ever did, we might be inclined to start questioning the other wildly inflated claims about high crimes and misdemeanors that allegedly occur online.  Or asking why we keep flogging network neutrality as an issue when there is no evidence that a neutrality violation has ever taken place.  Or why...oh, heck, we might just look at Congress and ask, "Why?"

But it's fun to conjecture.

In what the Motion Picture Association of America is calling a "significant victory for the major Hollywood studios," a federal judge has ruled against the popular BitTorrent indexing site TorrentySpy. 

I can't see that it is a big win for Hollywood as much as an indictment of TorrentSpy for attempting to subvert the judicial system.  TorrentSpy operators are accused of intentionally modifying or deleting directory headings naming copyrighted titles and forum posts that explained how to find specific copyrighted works; concealing IP addresses of users; and withholding the names and addresses of forum moderators, the court found. They had earlier been fined $30,000 for violating discovery orders, and were warned of severe sanctions if they continued to ignore the orders.

Hollywood never proved that TorrentSpy actually infringed on copyrights, so it doesn't set much of a precendent in that regard.  However, the MPAA will be able to extract damages from the company and thus lay some moral claim to victory.

Both sides have withdrawn to lick their wounds, and will rejoin in court to quibble over how much TorrentSpy will pay in damages.  It is in a sense a good day for the MPAA, which has its victory; a good day for TorrentSpy, which is located in the Netherlands and thus is not much bound by US copyright laws; and a sad day for the Internet.

It's a sad day because the Internet isn't the free-style, wild-West, flaunt-the-law place it was back in 1997, and it is time that more people recognize that.  To the extent that operators do flaunt the law and get away with it, we are all a little bit lessened.  To the extent that any element of the industry abuses the law for its own gain, we are all harmed.

I'm not a big user of BitTorrent, mostly because I'm out here on the edge of broadband with a satellite connection and little patience for any large download I don't really need.  But to the extent I have used it, BitTorrent seems an important technology that should not be sullied by abuse in copyright infractions.  After all, we may need it once Hollywood gets its act together for movie downloads.

I'm Scottish by heritage and nature, a kilted man in the tartar of the Clan McLeod and a fierce supporter of Scottish independence from England.  If you're interested, my personal web site has much more information about our clan and my family.

Among the most treacherous acts of perfidy in the history of Scotland occurred in 1692 at the villages of Glen Coe in the Scottish Highlands.  Two companies of soldiers loyal to King William of England and under the command of Robert Campbell came to the MacDonalds of Glen Coe on a winter night.  They were given Highland hospitality -- a warm meal and a place to sleep, and played cards with the MacDonalds. 

But the Campbells carried sealed orders from King William -- "You are hereby ordered to fall upon the Rebels, the McDonalds of Glenco, and putt all to the sword under seventy..." 

In the night, they fell on the members of Clan MacDonald under the order of the King, and slaughtered 38 members of the clan.  Another 40 women and children died of exposure when they tried to escape into the wintery night.  To this day, no Scot will trust a man who brings a sword to dinner, and the name Glen Coe is synonymous with treachery.

I mention this historical footnote because I came across an editorial on CNet this week called "'Tis the Season for Commonsense Copyright."  Authored by Maura Corbett, partner in a Washington, DC pr firm, the piece is a gushing endorsement of H.R. 4279, a copyright bill introduced as a gift to copyright holders by Judiciary Chairman John Conyers (D-Mich.) and Congressman Howard Berman (D-Calif.).  Ms. Corbett writes of the bill:

"It's the season of giving, and the House Judiciary Committee could give consumers, innovators, and artists what they are asking for--fair and balanced copyright reform--and even give a holiday boost to our technology-driven economy." 

Bovine excrement.  This bill does nothing of the sort.

It fails to do anything to promote fair use.  It does, however, substantially raise the penalties for copyright infringement, allowing for multiple awards for a single infraction that could drive the penalty cost of copying a single CD -- even if that copy was made legally under current law -- to as much as $360,000.

It creates a new copyright squad within the US Department of Justice to act as the private police force for the copyright industry.  But according to Ms. Corbett:

"What H.R. 4279 offers, if we are very lucky, is the beginning of a meaningful conversation."  

What she perhaps meant to say is that you can have a meaningful conversation with federal agents before they arrest you and destroy your life for making a copy of a CD you already bought.

I don't pretend to have all of the answers when it comes to copyright.  It is important that authors and artists be compensated for their efforts.  It is important to protect American copyrights and trademarks here and abroad.  And no one should condone stealing.  But it is also important to protect the cherished and traditional notion of fair use.  And to protect school kids and single moms from the thuggery of the entertainment industry.  And to protect taxpayers from government bureaucracies run amok.

Whatever H.R. 4279 offers, it is not a meaningful conversation.  It is not an effort to address the glaring and crippling problems created by the odious Digital Millennium Copyright Act.  It is not the solution that consumers, innovators and artists are asking for.

For consumers, this is a copyright Glen Coe.  And the Campbells are coming for dinner.