Facing the Music: The Battle Over Digital Piracy
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
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
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
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
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
Distributed nationally on the Scripps Howard wire