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THE MORNING BUZZ: A New Front In the Digital Copyright Battle?

1 Jan, 2002 By: Holly J. Wagner

Happy New Year!

Now that all the publishers and pundits are just about finished with their year-end reviews, we all move on to our predictions for the coming year.

I read one yesterday and I just have to take the analyst to task. You may not agree with me, but it's important to challenge a few assumptions.

Speaking to The New York Times, Forrester analyst Eric Schieirer predicts that the next battle front in the file trading/piracy war is for the entertainment companies to go after the end users of file trading software.

"It's not companies doing this," Schierer told the Times, "It's hobbyists in their garage. To stop hobbyists requires a whole new level of copyright enforcement."

Sorry, Eric, but while that theory may sound appealing, it's doomed to failure. The entire scenario is fraught with absurdities, just like some of the present cases worming their way through the court system.

First of all, if prosecuting end users was of any value in stopping offenses, our society would long ago have ended illegal drug sales and prostitution. The streetcorner drug war of the 1980s and 90s was a dismal failure in terms of stemming the overall drug tide. Pursuing penny-ante copyright violators who grab digital files for personal use would fare the same. Even making a few examples would do as much to discourage file trading as other prominent object lesson cases have made: Prosecuting Sydney Biddle-Barrows and Heidi Fleiss has done little to dent prostitution.

Second, as a practical matter, how are companies -- even comparatively wealthy studios -- going to afford prosecuting every Tom, Dick and Mary who copies a file on a computer? Studios, once independent entertainers impervious to the whims of the advertising market, have become media conglomerates much more sensitive to economic shifts and global events. These companies are losing money all over the place to an industrywide advertising slump and their news arms' obligation to intensive, free coverage when world events become grave or startling. Can they afford to chase the half million file traders a month that some of these services claim? Can they do it without privacy intrusions upon the innocent that would likely result in costly cross litigation? Is it a wise use of their resources?

Third, they can't go down that road, at least not without admitting defeat on the existing front. The major entertainment companies sued file trading services KaZaa, MusicCity.com and Grokster to stop their activities, contending that facilitating file trading has no other purpose than copyright infringement. If that's true, Warner would have to sue AOL for offering file trading capacity on its Instant Messenger service (something along that line is, indeed, taking place). Both sides could spend millions in court for what would ultimately be nothing more than an expensive fund transfer from one of a media giant's pockets to another. It might not be the first case of its kind but it seems foolishly expensive all the same.

You can't have it both ways. The giants will have to admit it's not the technology's fault before claiming it's consumers' fault. I'm envisioning gun lobby-style bumper sticker campaigns saying, "Computers don't violate copyrights, people do." In fact, a trial is set later this month in another case that will set precedents about whether file trading is, in itself, a crime.

Fourth, shutting the services down won't help. The music giants went after their David (aka Napster). The giants may have knocked David down, but here come a couple of big rocks from the little guys: users are panning the services the giants provided to replace Napster; and new, more sophisticated technologies are springing up to shame their levels of service. That's a likely outcome as long as the giants don't have end users design their services. End users designed Napster and KaZaa.

In the end, the giants hurt themselves and, if the movie Goliaths follow the same course as their musical corporate brothers, they'll drive prices for their packaged wares down, just as analysts say the prices for CDs are dropping now.

Much of the digital frontier remains to be tamed. I don't know how all of this will turn out, but I'll be keeping a close eye on it. It's going to be a fascinating year.

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