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Commentary: Target Pirates Not Technology


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COMMENTARY: TARGET PIRATES--NOT TECHNOLOGY

In mid-October, pressed by the Recording Industry Association of America (RIAA), a U.S. District Court judge in Los Angeles slapped a temporary restraining order on a San Jose (Calif.) startup called Diamond Multimedia Systems Inc. Its alleged crime? Diamond wants to market a sleek, $199 Walkman-sized widget called Rio. The gadget stores music files downloaded from sites on the Internet and plays them back at near-CD quality.

Rio may sound innocent enough, but RIAA says the device encourages piracy and jeopardizes copyright laws. Naturally, Diamond says Rio is perfectly legit. And music-loving digerati--who like the idea of getting portable versions of their favorite music from the Net--are siding with Diamond. The court hopes to settle the matter at a hearing on Oct. 26.MISFIRE. Good luck. For lots of technical reasons Diamond can tick off, RIAA is on shaky legal ground. But in any case, the industry's approach is bound to backfire. From the days of Gutenberg, people have tried to stop new technologies that, they fear, threaten their livelihoods. And in almost every case, their efforts have failed because they misdirect their ire at the technology, not the people who would use it to harm them.

Rio was designed to piggyback on one of the hottest trends in cyberspace: the compression and distribution of audio files in a format called MP3. The technology--essentially a set of mathematical formulas--crunches music files way down, so they are easy to store and transmit over the Internet.

The technology is far from sinister. Legitimate sites such as MP3.com and goodnoise.com use it to compress music tracks they obtain as promotions or license from record companies, which they then sell or give away with the companies' blessing. But hundreds of other sites stock illicit MP3 files that are pirated from audio CDs and posted for anyone to download for free.

Justifiably, the recording industry is outraged by these sites. It shuts down dozens each month, but they pop right up again. "These sites are run from the privacy of a college dorm, a student's home, or a cubicle at the office," complains Cary Sherman, RIAA's senior executive vice-president and general counsel. And their trendy clientele, he says, suffer from an ethical disconnect: "These are people who would never think of shoplifting a CD from Tower Records."

All valid complaints. But instead of finding new ways to thwart pirates, RIAA has taken aim at the technology they use corruptly. "Rio doesn't promote piracy any more than a good pair of audio speakers does," argues Kenneth R. Wirt, Diamond's vice-president for corporate marketing. The device, which stores MP3 files on flash-memory chips, will let users carry MP3 files around, just like a portable CD player. But there's no "record" button. It can only accept downloads that are already stored on a PC. And it can't upload those files to the Internet.

Legally, that makes all the difference. RIAA has invoked only one U.S. law to block sales of Rio: The 1992 Audio Home Recording Act. It requires copy protection on recording devices. But it also exempts computers and peripherals such as disk drives, which undercuts RIAA'S case.

The court fight could drag on for months. Whatever the outcome, RIAA and its fellow copyright agencies badly need a new strategy. Coming quickly through the gadget pipeline is a plethora of next-generation digital technology that won't fall under the 1992 law. It's only a matter of time before the motion-picture industry has its own Rio to cope with. That may spur more lawsuits. But no amount of litigation can put the digital genie back in the bottle.By Neil Gross


Steve Ballmer, Power Forward
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