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Breaking the Internet copyright impasse

The file-sharing wars that began with the rise of Napster a few years ago have demonstrated that, in the Internet Age, just about everyone is a criminal.

Yes, the old " information wants to be free " canard is seriously flawed, given that it conflicts directly with the notion that writers, artists, and other creative types want to, you know, eat. But what’s happening now — a draconian crackdown on a few randomly selected violators, even as an estimated 43 million Americans (according to the New York Times) use file-sharing software such as KaZaA or LimeWire — is surely the worst of all possible digital worlds.

Simply put, the current paradigm encourages both goon-like behavior on the part of the music industry and other content providers even as it rewards larceny on the part of consumers.

This tension reached something of a peak earlier this month, when the US Court of Appeals for the District of Columbia Circuit ruled that Verizon’s online-service division would have to turn over the names of four of its subscribers to the Recording Industry Association of America (RIAA), which had filed a subpoena under the Digital Millennium Copyright Act. The four subscribers, according to the RIAA, had used Verizon’s Internet service to offer free, illegal music downloads.

The court’s ruling could have all sorts of unfortunate consequences, according to Peter Swire, a professor at the Moritz College of Law, at Ohio State University, and the chief counselor for privacy in the Clinton administration. " Porn sites, gambling sites, or others could track down anonymous surfers and demand payment not to reveal the user’s identity under the pretext of enforcing a ‘copyright’ in the content of the site, " Swire writes on his Web site, Swire’s proposed solution: require a judge to examine the facts of each case. " The individual’s privacy and freedom of expression can thus remain protected by due process in our courts, " he writes.

But Swire’s idea seems cumbersome, even though it would surely be an improvement over the status quo. In an article in the July-August issue of the magazine Legal Affairs, Harvard Law School professor Jonathan Zittrain, a director of the school’s Berkman Center for Internet and Society, writes that the real problem is that attempts to crack down on file sharing go considerably further than what society has become accustomed to in the non-digital world — where comparable offenses involve making a few photocopies of a copyrighted article, or singing " Puff, the Magic Dragon " (still under the protection of copyright law) at a Girl Scout event.

" We live today under two copyright regimes: the law on the one hand and reality as experienced by the public on the other.... The Net forces us to confront the contradictions between what the law requires and what individuals do, " Zittrain writes.

Rather than attempting to strike a more reasonable balance between the rights of copyright holders and consumers, as Swire would do, Zittrain writes that we should think about doing away with the current regime altogether. He describes an idea by Harvard Law School professor William Fisher to require Internet service providers (Verizon, AOL, EarthLink, and the like) to pay a fee to copyright holders " loosely based on the amount of copyrighted digital content that they are calculated to be carrying, at which point people can trade music to their hearts’ content. "

In an e-mail, Zittrain told the Phoenix, " The problem is that the law makes strongly illegal — even criminal — what much of the public regards as essentially a parking-ticket-level wrongful act, if even that. " He added: " I think the law gives too much to the copyright holders, even as they are in a fight to the death. It may be OK to try to stop copyrighted file sharing through technical and other means — that’s a longer, separate discussion — but to treat an individual’s file sharing as the felony it may literally be is to appropriate our public institutions against the public at large to serve a mercenary interest that ought not to be upheld at all costs. "

The success of the Apple Music Store, with its unlimited free access and 99-cent downloads, has already showed that there is one alternative to the copyright impasse. Zittrain — by way of Fisher — shows that there might be another, more comprehensive solution.

Certainly paying a copyright tax in return for the right to trade copyrighted files would be infinitely preferable to giving Entertainment, Inc., the right to snoop into your personal information.

Issue Date: June 20 - 26, 2003
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