[Ecommerce] Businessweek: Are The Copyright Wars Chilling Innovation?

[Manon Ress]

http://www.businessweek.com/magazine/content/04_41/b3903473.htm

THE INNOVATION ECONOMY -- MANAGING FOR INNOVATION

Commentary: Are The Copyright Wars Chilling Innovation?

SNIP

It's a concern that reverberates broadly in tech circles at a time when
Congress is considering tough new antipiracy legislation. Most people
agree that the music and film industries have the right to defend
themselves against illegal copying. But society needs to consider the
potential impact on innovation. Many high-tech business leaders fear
that new laws could hobble researchers who are trying to come up with
inventions such as next-generation TV systems or even the electronic
components for those inventions.

The laws could also intimidate scientists who collaborate using
"peer-to-peer" software -- already the object of several RIAA lawsuits.
You may think of peer-to-peer as the sinister bag of tricks used by
services such as KaZaa or Grokster, which let people swap music files
stored on their PCs. But such software also happens to be a superb
vehicle for disseminating scientific ideas and pooling brainpower. And
what if, down the road, souped-up copyright laws trigger a blizzard of
lawsuits against academic scientists and inventors? At the very least
such litigation could end up sapping university resources and scare away
financing for some types of tech startups.

Intimidation isn't hard to spot in academia. Aviel Rubin, a Johns
Hopkins University professor who last year uncovered flaws in
electronic-voting software developed by Diebold Inc. (DBD ), says he
spends precious time plotting legal strategies before publishing
research connected in any way to copyrights. Matthew Blaze, a computer
scientist at the University of Pennsylvania, avoids certain types of
computer security-related research because the techniques are also used
in copy protection.

The pall has spread over classrooms as well. Eugene H. Spafford, a
professor and digital-security expert at Purdue University, and David
Wagner, an associate professor of computer science at the University of
California at Berkeley, are refusing to take on teaching assignments in
certain areas relating to computer security. "The problem isn't that
we're worried about prosecution from the government. The problem is the
civil lawsuits from the movie and music industries," Spafford says. "I
don't have the resources to deal with that."

SNIP

Today's turmoil over copyrights contains a disturbing new twist,
however. Digital technology -- from MP3 players to software that makes
it easy to build Web pages -- shatters almost all of the technical
barriers to duplicating and sharing copyrighted works. That has caused
unparalleled anxiety among copyright holders. As a result, music and
movie companies have adopted a strategy of targeting digital technology
itself as well as those who design it and those who use it.

In time this could threaten the delicate balance between copy protection
and technical innovation. The intent of copyright law in the U.S. is to
promote learning and innovation while giving artists, musicians, and
writers a limited monopoly on their work. The goal isn't to assure that
artists or intellectuals make oodles of cash.

More recently the courts have been clear: When the government grants a
copyright, it isn't giving recipients permission to control the
technology that records or reproduces the work. Nor is it handing them a
new way to punish potential infringers. (There are plenty of other legal
avenues to battle piracy.) But media companies are so alarmed by the
implications of the digital revolution that they're insisting on a say
in the development of recording and playback technology.

Here's how the effort is playing out: Last fall a group of media
companies pushed the Federal Communications Commission to mandate that
copy-protection technology be built into some home devices, including
DVD systems, TVs, and personal video recorders such as TiVo (TIVO ). The
technology, called the broadcast flag, is designed to prevent massive
uploading of digital TV broadcasts to the Net.

To assure that tech companies comply, the FCC has obliged them to give
regulators and the Motion Picture Association of America (MPAA) a peek
at products and technologies under development -- and that's giving the
MPAA more control over how, when, and where people watch TV. This
summer, the MPAA coerced companies including RealNetworks (RNWK ),
Thomson (TMS ), and Microsoft (MSFT ) to cut innovative features out of
their latest media software programs -- features that would have allowed
users to make legal copies of TV programs and transmit them over the Net
to a limited number of personal devices in, say, a car or a vacation home.

True, the media biz has suffered some setbacks, particularly in its
attacks on peer-to-peer technology for sharing music or video files.
Record companies won a key battle in 2001 when they used a lawsuit to
shut down file-sharing pioneer Napster (ROXI ). But when they took on
the more sophisticated music-sharing services Grokster and Morpheus this
summer, they lost. The Ninth Circuit Court of Appeals in California
ruled that the two services, which can be used for legitimate as well as
illegal purposes, can't be expected to control how their users exchange
files.

Far from humbled, media companies are moving the fight out of the courts
and into the halls of Congress. This summer they pushed for a piece of
federal legislation known as the Inducing Infringement of Copyrights
Act. If it passes, any company or person who "aids, abets, or induces"
the illicit sharing of copyrighted works will be liable for copyright
infringement.

Some experts warn that broad laws of this sort might restrict legitimate
uses for key technologies, which could be particularly thorny for young
companies that are often the most creative. In the '90s, it was upstarts
who developed the first MP3 players, paving the way for a vibrant new
market and Apple Computer Inc.'s (AAPL ) blockbuster iPod. If the
"induce" act had been in place at the time, many legal experts say, the
iPod would never have been built.

Critics of the entertainment industry are especially alarmed by assaults
on generic technologies, such as peer-to-peer computing. "The popular
view is that I must protect the absolute interests of the copyright
holder," says Gregory M. Papadopoulos, chief technology officer at Sun
Microsystems Inc. (SUNW ) "That's scary because I know it will slam
innovation. If I can't have someone throw together the next great video
system for my home because everything is going to be locked down in
copyrights, then [breakthroughs by] kids in the garage won't happen."

Music and film trade groups deny that their efforts will chill
innovative energies. "It's easy to assert you feel chilled, but I don't
see any evidence to support that," says Fritz Attaway, general counsel
for the mpaa. And the record industry is resisting efforts by equipment
makers and academics to modify the dmca. riaa Senior Vice-President
Mitch Glazier says softening the act would give pirates a blatant right
to hack.

Nobody disputes that digital technology has created unforeseen dilemmas
for copyright protection. But changing the laws to target versatile
technology and scientific investigation rather than bad behavior is
asking society to pay too high a price.

By Heather Green


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Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176