Monday, October 03, 2005
COPYRIGHT: June 2003 Washington Post backgrounder on Internet copyright
Internet Sparks a Copyright Fire
By Robert MacMillan
washingtonpost.com Staff Writer
Tuesday, June 24, 2003; 7:00 AM
Buying an album or watching a film used to mean going to the music store
or the movies, renting a video, maybe checking out the Columbia House
Those were the '90s, the good old days, before the Internet's takeoff.
Now, millions of people worldwide purchase and download the goods from Web
sites. But big business didn't rush to embrace the Internet as a medium
for selling music and software. Rather, that spark was lit by the oddly
named, yet irresistible Napster.
Napster, created in 1999 by the 20-year-old Shawn Fanning, was startling
in its simplicity -- users could download the software, make songs saved
on their computers available to other Napster users for downloading and
vice-versa. It brought the digerati and the technophobes online in record
numbers to "share" their music collections.
Based on popular response (at its peak, 60 million songs were being
swapped per day on the service), Napster was a brilliant idea. The
availability of millions of free songs via a simple software program and a
few mouseclicks and keystrokes seemed too cool to be legal.
And it was.
Napster users were violating copyright law, which says artists -- or the
companies that own artistic work and other intellectual property -- are
entitled to compensation for their work, and that they have a say in how
Until the Internet became the icon of a putative economic revolution,
"copyright" was a term most people encountered while typing footnotes for
their term papers. But to book publishers, song writers and scores of
other creators of intellectual property, knowing a lot about copyright can
be the difference between making money and standing in the bread line.
The clash between ordinary consumers and the music and movie industries
heated up in the 1970s and 1980s with the emergence of cheap audio
cassette and VCR players -- prompting perhaps its most visible icon, the
FBI warning included at the beginning of rented videos. Industry
ultimately learned to live with issuing a few stern warnings while average
consumers taped albums or movies for friends. It was still relatively
difficult for average consumers to engage in piracy on a huge scale.
The Internet and the availability of cheap, powerful computers changed all
that. Technology now allows unlimited, near-perfect copying of digital
files. On the Internet, Picasso's "Guernica," Microsoft's Windows XP
operating system and the White Album are nothing more than easily copied
There were more than 5 billion music files downloaded from peer-to-peer
(P2P) file-sharing networks in 2002, and there are 57 million users of
file-sharing technology in the United States, according to the
Boston-based Yankee Group research firm. The same research firm said 8
percent of U.S. Internet users downloaded at least one movie during a
three-month period in 2002. San Diego-based Websense, a developer of
employee Internet management software, said in January that P2P use had
increased more than 300 percent in the preceding year.
The entertainment and software industries have assembled a formidable
arsenal to fight the problem, from tough laws to Internet posses who trace
the origins of piracy, and a phalanx of lawyers going after the pirates
and the businesses that run file-sharing networks like Napster. Its
leaders are the Recording Industry Association of America, which
represents the major labels, and the Motion Picture Association of
Music was the first commodity that Internet users could easily share,
elevating the once little-known RIAA -- and its chief, Hilary Rosen -- to
arch-villain status among many Web users, as the industry group
aggressively campaigned to stamp out online piracy.
The scorn comes from consumer rights advocates, freewheeling programmers
and other believers in the germinal spirit of sharing and openness that
characterized the Internet in the pre-commerce era. The Internet, they
say, was never intended to be a profit center. Corporate copyright owners
want to halt the free flow of information in the name of profits, their
argument goes, adding the charge that if the entertainment moguls can
strengthen copyright law for themselves by perpetually extending the
length of copyright terms, creativity will be stifled and the concept of a
public domain for cultural progress destroyed. A chief gripe is that
Corporate America is trying to get rid of "fair-use rights" -- a vague
loophole in copyright law that gives consumers limited rights to copy or
repurpose protected materials.
Among copyright holders themselves, opinions vary. Some music groups stand
shoulder-to-shoulder with the recording labels in the war against online
piracy. Some "indie" label and unaffiliated artists say unrestricted
distribution of their work is good marketing. Even some big name acts are
joining the line of thinking that the RIAA does not speak for them on the
Internet and copyright. Rock group Pearl Jam left Sony's Epic label as
soon as its contract was up, and now is a prominent member of the
independent music scene with no other means of distribution right now than
the Internet. The heavy metal band Metallica, whose members once were
vocal opponents of online music piracy, have surprised many by recently
releasing some songs for free online.
Some intellectual property attorneys, programmers and artists sick of the
entire copyright system have started proposing alternative distribution
and compensation methods to explore ways to work around it while allowing
artists to continue making a living.
One of the most famous is Creative Commons, started by Stanford Law School
Professor Lawrence Lessig, who also founded Stanford's Center for Internet
and Society and stands at the forefront of the copyright debate. Creative
Commons set up shop in 2001 with the aim of getting copyright owners to
distribute their works for the public to use, more or less, as they see
fit -- like sampling music or doctoring photographs in various ways.
Then there are the millions of children and adolescents who make up the
first generation to grow up with file sharing and downloads as the norm,
rather than a novelty. This means that the conglomerates must master the
Internet and its challenges or else watch their profits vanish.
Weapons of Mass Vexation
The film and recording industries realized years ago that digital content,
whether on DVDs or on the Internet, could be easily copied, so they
designed ways early on to keep that from happening. Encrypting, or locking
up content except for authorized users, was the first step in that
direction, but hackers take great pride in busting those codes.
Thus was born the Digital Millennium Copyright Act of 1998. The DMCA
prohibits breaking through encryption and other digital padlocks, and in
some cases provides criminal penalties up to $1 million and 10 years in
prison for repeated offenses. Properly applied, the law is a sledgehammer
against pirates, but civil liberties groups say it is improperly used to
silence free speech and to put the brakes on fair-use rights.
The federal government's first criminal prosecution under the law targeted
Russian software programmer Dmitry Sklyarov, who developed software to
crack the encryption that protected Adobe Inc.'s electronic books. It also
was used to prevent hacker magazine 2600 from publishing the computer code
to crack DeCSS technology, which allows DVD buyers to run the discs on
computers with the Linux operating system.
Other battle plans for reining in the flow of digital content include
several trial balloons introduced in Congress, such as Sen. Fritz
Hollings's (D-S.C.) 2002 proposal to force computer and electronics
designers to include anti-copying technology in their products.
A bill introduced by Rep. Howard Berman (D-Calif.) last July would have
let copyright owners hack into the computers of suspected pirates. Senate
Judiciary Chairman Orrin Hatch (R-Utah) at a hearing just last week
suggested a three-strikes-and-you're-out deal -- destroying computers
after the third time their owners break copyright laws.
The RIAA currently uses other tactics, like sending cease-and-desist
notices to suspects, sometimes via instant messaging tools. It also
collected up to $17,000 each from four Princeton University students
suspected of illicit file sharing.
This approach likely will continue after two court judgments from last
April. A U.S. District Court judge in Washington, D.C., ruled that Verizon
had to give the RIAA the names of two high-speed DSL customers allegedly
involved in rampant illegal sharing. Verizon said it would hand over four
names after their appeal was denied.
A federal judge in Los Angeles in April rejected an RIAA-led effort to
shut down file-sharing services Grokster and Morpheus, ruling instead that
the industry should pursue the individual users.
Those with a stake in the debate like to sound bleak warning notes about
how piracy will destroy the Internet economy, or how the evil industry is
locking down and homogenizing the greatest bastion of free expression the
world has ever known.
Rhetoric aside, the immediate future promises a mixed bag.
Rep. Rick Boucher (D-Va.) is leading an effort to buttress fair-use
rights, making sure that back-up copies of personal software and other
content won't invite a subpoena from the recording industry. Sen. Sam
Brownback (R-Kan.) is proposing similar legislation for distance-learning
and other educational purposes.
The problem, as Boucher readily admits, is that his bill is not riding any
groundswells of support among his colleagues. There is more support for
talk about the subject than real action, especially with the debut last
week of an intellectual property caucus.
The U.S. Copyright Office is taking its own look at whether fair-use
rights are too restricted, and could recommend changes to the DMCA.
Outside the Beltway, Apple's iTunes paid music service is attracting rave
reviews, while Listen.com and similar services work on harnessing the
Windows world. Consumers' acceptance, notably of iTunes, says to many
observers that paid online downloads might have a future.
The RIAA continues to pursue pirates in the hopes that a few high-profile
examples of prosecutions or settlements will drive the hardcore thieves
underground. And the MPAA is learning from the music industry's problems,
girding its resources to battle against the small but growing market for
pirated Internet films.
But it's the kids who continue to take advantage of the latest technology
out there -- not as a new trick, but as something accepted and tacitly
expected. They are the ones driving the market for digital downloads,
which Reston, Va.-based ComScore Networks estimated was worth $545 million
last year. Where they go, so go the consumer dollars that copyright law
was supposed to harness in the first place.
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