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October 21, 2002

Facing the Music: The Battle Over Digital Piracy

By and

There's a good reason why there's never been a hit TV show called "Law & Order: Copyright Infringement Unit." Copyright law usually isn't very exciting.

But judging from a new ad campaign launched by the music industry, featuring Britney Spears and other recording stars on the evils of Internet piracy, that's changing. The campaign is part of an expanding battle between the entertainment and Internet worlds over how movies and music can be distributed and sold.

In Washington, the most recent skirmish concerns a proposal in Congress that would allow copyright owners to use "self-help" actions to prevent people from downloading a film or a song without getting permission -- or paying royalties. The plan has ignited a rhetorical firestorm of protest from much of the Internet community, with critics warning of "copyright vigilantes" hacking into personal computers and deleting hard drives. It's a scary image, but, like much in Hollywood (or on the Internet, for that matter), it's largely untrue.

The heart of the controversy is a practice known as "file sharing."  As pioneered by the Napster Web site in 1999, file sharing allowed users to share digital copies of songs using a central computer. Because the technology permitted the widespread distribution of copyrighted material -- with no payments to the creators -- a federal court shut down Napster in 2000.

File sharing continues, however. Except now it's done through decentralized "peer-to-peer" or "P2P" networks that allow computer users to share files by connecting to other people's computers. Because there's no central location to get songs, it's more difficult to pursue copyright violators in court.

These P2P networks aren't used by just a few computer geeks looking for tunes on another dateless Friday. KazaA, one of the most popular networks, boasts that its file-sharing program has been downloaded more than 100 million times and that some 2 million people are on it at any given time.

Meanwhile, music executives and Hollywood filmmakers have watched in horror as technology makes it easier to duplicate and distribute their property -- which they spend millions to create -- without paying. Consumers, too, are hurt, as this process discourages producers from making content available for new digital services.

What can the government do? Too often, its response has been to adopt new rules that limit technology, an approach that can kill innovation. The "self-help" proposal currently before Congress, sponsored by Rep. Howard Berman, D-Calif., tries a different approach: Allowing copyright owners to take action to protect their own property.

The concept of self-help isn't new in American law. Homeowners, for instance, have long been able to take steps to stop burglars found in their homes. Lenders can take steps to repossess automobiles, houses and other property, even without the owner's consent. Music and movies are intangible, intellectual property, but the principle remains the same: If, under copyright laws, these products are being distributed without the owner's consent, the owner should be allowed to stop the theft.

A number of creative techniques would be available to companies and individual copyright owners under Rep. Berman's proposal. One is "spoofing," flooding the Internet with enormous numbers of flawed or altered copies of the copyrighted material. Sony Corp., for example, could create 10,000 files that may appear to contain its hit movie "Spider-Man," but are fakes. Another technique would let copyright owners download pirated material at extremely slow speeds, making it temporarily unavailable to potential "customers."

There would be limits, however. Copyright owners wouldn't be able to delete programs, crash computers, or do virtually any of the other things critics have claimed. Indiscriminate "denial of service" attacks that bring down networks also would be out of bounds because they would impair legitimate "peer-to-peer" sharing. Companies wouldn't even be able to delete copies of their own stolen works -- they could only block further illegal distribution. And, if they go too far, computer users still could sue.

Protecting intellectual property in the digital age is no easy task. Policymakers must strike a delicate balance between the rights of copyright owners and those of Internet users -- all without crippling technological innovation. Allowing private "self-help," while no cure-all, could be one small step in the right direction.

James L. Gattuso, a former deputy chief of the Office of Plans and Policy at the Federal Communications Commission, is a research fellow at The Heritage Foundation.  Norbert J. Michel is a policy analyst in Heritage's Center for Data Analysis.

Distributed nationally on the Scripps Howard wire

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