TCS Daily

Stasis vs. Dynamism

By Sonia Arrison - July 29, 2003 12:00 AM

Michael Jackson, the "Gloved One," might lead a strange life, but he expresses a common sentiment when he says "I am speechless about the idea of putting music fans -- mostly teenagers -- in jail for downloading music."

Jackson was commenting on a new bill introduced in the House of Representatives that would punish anyone who shares even a single copyrighted file with up to five years in jail and fines up to $250,000.

The Author, Consumer, and Computer Owner Protection and Security Act (ACCOPS) is the latest congressional proposal that attempts to solve a marketplace problem with social regulation -- a strategy that will not only fail in its goals, but will slow down progress and innovation as well.

The battle over how to stop online piracy of music and movies has thus far demonstrated a classic struggle between the static, institutionalized thinking of dinosaur-like entertainment companies and innovative, forward-looking technology firms.

The problem is that the technology community keeps coming up with different ways to distribute content, and instead of working out contracts to charge fees for distribution, the entertainment industry keeps trying to stop technology with the clumsy instrument of the law.

The recording industry's list of targets is extensive: Napster, Aimster, Audio Galaxy, Kazaa, Morpheus and Grokster, and the list goes on. And that's not to say that people shouldn't be required to pay for music -- they should, but the recording industry hasn't made that possibility all that easy.

Imesh, an Israel-based file swapping firm, says it met with the Recording Industry Association of America (RIAA) and "begged them to make their material available on Imesh for a fee, because we know our users would gladly pay." Apparently, the RIAA wasn't interested. Altnet, a service that says it can help turn Kazaa into a law-abiding site by distributing copyrighted work protected by electronic locks, echoes a similar story.

While it's true there are finally a few music-industry endorsed services where users can legally buy online music (like Apple's iTunes,'s Rhapsody, and newly-launched's buymusic), the models are clunky and still need to be tweaked. That it took so long to get them reveals how unresponsive the industry is to the changing marketplace and consumer demand.

Indeed, instead of spending resources on new ways to get users to pay for online tunes, the music industry trained its guns full force on individuals when it recently issued 871 federal subpoenas against suspected file traders, with the number growing at about 75 new subpoenas each day. Privacy issues aside, something is wrong when private firms have police-like powers of subpoena.

While these legal actions by the RIAA might make industry types feel better, it will no doubt further alienate music fans and serve to complicate the problem of how to protect intellectual property online. For instance, technology makers have responded by offering ways for people to trade files without revealing their identity.

Earth Station5, eDonkey2000, Blubster, and Freenet are all offering services to trade files while concealing user identity. Whether or not these systems can offer all the protection they claim is yet to be seen, but the point is that they are a direct response to the hard-hitting tactics of the entertainment industry. And then there are legislative attempts to put the RIAA back in its cage.

Recently, Republican Senator Sam Brownback offered an amendment to an FTC reauthorization bill that would force "owners of digital media products to file an actual case in a court of law in order to obtain the identifying information of an ISP subscriber" rather than the current standard where the subpoena power is virtually unchecked.

Intellectual property is important and creators need to be paid for their works, but constant legal wrangling is not the answer. The marketplace is forcing the entertainment industry to make a choice: It can either embrace technology and work with those creating it to more efficiently manage its works, or it can try to use law to stymie tech.

If it chooses to welcome technological advances, everyone will be better off, but if it continues to rely on the legal weapon, it will fight a losing battle. Law never stops technological progress; it can only slow it down.

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