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Commentary: Are The Copyright Wars Chilling Innovation?


Scientists like to probe the unknown and pioneer useful technologies. But in the spring of 2001, Edward W. Felten discovered that such efforts aren't always welcome. A computer scientist at Princeton University, Felten took part in a contest sponsored by the Recording Industry Association of America to test technology for guarding music against piracy. He and his students quickly found flaws in the new antipiracy software and prepared to publish their results. But when the RIAA learned of the plan, it threatened to sue under the Digital Millennium Copyright Act (DMCA). Congress passed it back in 1998 to block hackers from breaking copy protection. And they wisely included a provision designed to let researchers such as Felten carry out their important work. Still, the RIAA deemed Felten's line of study too sensitive.

Ultimately, faced with Felten's countersuit, the RIAA backed off. But by that time news of the confrontation had rocked the tech community. The lesson many scientists drew was that copyright protection takes priority over research. "The legal tools that are being used to rein in bad behavior are so blunt that they block a lot of perfectly benign behavior," Felten says. "That worries me."

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."

Squabbles over copyrights go back to the dawn of such legislation in the 18th century. Through the decades, courts have struggled to reach a balance between protecting copyrights and ensuring the freedom to create new works. They rarely achieve perfect harmony. But there is a kind of pendulum effect: Enthusiastic lawmakers clamp down too hard, then relax as the technology matures and demonstrates its merits.

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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