Open Letter to Media Enforcer

Kurt Nimmo

In the last few weeks, attention has focused on your software, Media Enforcer, an application that you claim is "a line of defense for owners of different media to put the responsibility back to the offending users" of Napster and Gnutella. In a blurb on your home page, you claim to "have a very clear interest in the success of the entertainment industry in the digital age" and seem to believe that Media Enforcer will somehow reaffirm and protect this interest. I believe you are blowing smoke out of a certain bodily orifice in regard to your claim that Media Enforcer will force the hands of millions of file traders across the Internet. Please allow me to explain how.

A Media Enforcer search claims to "effectively return users illegally offering (a copyright holder's) latest album to the public" by searching the Napster and Gnutella networks. This is extremely misleading. The search may return IP addresses, even user names, but these Media Enforcer searches certainly do not return anything of substance, such as a meatspace name, address, etc. As you know, the IP addresses returned are not of individual users - they are mostly the addresses of ISPs. The Media Enforcer website suggests that results be submitted to the "owner/operator of a service to ban users, or to hand off to an attorney to start a round of Cease and Desists." While this may sound ominous, the reality of the situation is different.

I would suggest you talk with people who actually work for ISPs. Many report that ISPs do not generally roll over and submit to cease and desist letters issued by lawyers - it takes more, much more, like a court order or a subpoena before they will respond. For instance, in the case of Metallica submitting IP and username info to Napster, it was not a court order that forced Napster to terminate the accounts of over 300,000 users, but rather a weakness on the part of Napster itself to defend its practices. At no time was Napster required under penalty of law to terminate users. Moreover, it can be argued that the Metallica imposed ban was a failure because, ultimately, many of the banned users were allowed back on the network, or simply registered again under different names. The Metallica ban, of course, was splashed all over the media, and this probably had a lot to do with Napster pulling the users. If not for this media pressure - and the high celebrity visibility of Lars Ulrich and Metallica - do you sincerely believe Napster would have agreed to boot the users?

In general, ISPs are going to ignore lawyers and cease and desist letters. The provisions of the DMCA encourage them to do this - under safe harbor, an ISP cannot be held responsible for the alleged illegal activities of its subscribers, in much the same way the phone company cannot be held liable for people using the system to engage in illegal activity. Media Enforcer may claim to put a dent in activity deemed illegal by the recording industry cartel, but the reality of the situation is decidedly otherwise. Again, I cannot help but think Media Enforcer is blowing smoke out of a certain bodily orifice - and in the process is misleading people who are in search of effective ways to protect their copyrights.

On its home page, as noted above, Media Enforcer claims to have a "clear interest in the success of the entertainment industry in the digital age." While this may be true, the Media Enforcer software will not make the industry pipe dream of fully protected IP a reality. If anything, it will give copyright holders - many of whom are clueless about new technologies - false hope and embolden them to cling desperately to archaic, unworkable, and unenforceable copyright laws. If Media Enforcer were truly interested in the continued success of the entertainment industry, it would not offer a software package which is essentially a worthless placebo. Instead, it would work to encourage the entertainment industry to embrace new file-sharing technologies and devise ways to utilize these to better serve consumers. The industry Media Enforcer claims to protect is seemingly steadfast in its resolve to struggle against new technologies and cling to old models that no longer serve an increasingly Internet savvy consumer base. This resistance has more to do with loss of control of a monopolistic distribution system than it has anything to do with copyrights or the assumed amorality of file-sharing.

Media Enforcer only prolongs the inevitable - on-demand entertainment media at a lower cost and delivered in open standard formats such as MP3 and MPEG. Unfortunately, Media Enforcer will give entertainment moguls and well-known artists false hope and encourage them to fight a battle they cannot possibly hope to win in the long run. In this way, Media Enforcer is not only futile, but also a disservice to those of us who actively encourage the entertainment industry to welcome new technologies and devise creative and equitable ways for the industry to deliver content to an ever increasing base of consumers.


Kurt Nimmo

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