Internet copyright tizzy will pass

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By ROBYN E. BLUMNER

© St. Petersburg Times,
published August 5, 2001

Whenever I hear a debate over intellectual property rights and young people swapping music over the Internet, I can't help but remember the first time I bought a dual cassette tape player.

I was in law school in New York at the time and brought the machine back to my dorm apartment with great intentions of copying dozens of albums and tapes, easily borrowed from friends down the hall. I even went out and bought blank tapes for the project. But I never got around to it. Instead, when I wanted some music, I went to the local Tower Records and paid for it.

This is part of the reason why I think the recording, music and publishing world should calm down about the potential impact of the Internet on their products and profits. An original will always be more desirable than a copy, either due to convenience, security or value-added packaging.

The music, movie and publishing worlds seem to have to learn this over and over. They invariably go bonkers every time a new technology allows for the easy copying of their products. The recording industry attacked radio and tape recorders when they first came on the scene; the movie industry sued over the development of the VCR, convinced that freely recorded movies would cut into their profits, and publishers weren't too keen on the Xerox machine.

But all those fears were for naught. The market for entertainment and information has only expanded since the advent of these electronics. According to Wayne Crews, director of technology studies at the Cato Institute, it's because the entertainment and publishing industries adjusted to the new realities. "Remember in the early days of the VCR, when you would buy a video for $89.95? Copying was rampant. But now, when the price of new releases is about $20 and it's $9.95 for older movies, copying is no longer a problem," Crews explained.

Crews said the same fix will hold true for the Internet, which currently has these industries shaking in their corporate boots: "If record companies sell a song for 25 cents or 50 cents a download, on a secure line, with liner notes and lyrics and pictures of the artist, why would people go to Napster?"

Earlier this year, the music industry brought the free music-swapping Web site Napster to its knees, winning a lawsuit for copyright violation and forcing the net giant to stop its popular free service. Of course, before the ink was dry on the injunction, hundreds of other Web sites had taken Napster's place. Many were set up using peer-to-peer networks or were based overseas where lawsuits were impossible or impracticable.

But the worst reaction to the Internet scare has been the passage of the unconstitutional Digital Millennium Copyright Act of 1998. The DMCA makes it a crime to develop technology that can be used to bypass computer programs that protect copyrighted material. Under the law, it is both a civil and criminal violation to create software that can skirt around copyright security systems, even if the software designer doesn't violate anyone's copyright.

Dmitri Sklyarov, a Russian national, is one of the first victims of this law. On July 16, Sklyarov was arrested and charged under the DMCA, because he had written software that allows users to disable access limits on eBooks when the books are read through Adobe eBook Reader. Ostensibly, Sklyarov's program could be used to pirate eBooks, but it could also be used for valid purposes, such as giving blind readers the flexibility to use their eBooks in a computer program that reads aloud to them.

Despite the fact that the software was a legal product in Russia where it was developed, Sklyarov was arrested in Las Vegas when he came to deliver an academic address on his work, and he remains in federal custody pending a bond hearing.

His cause has been taken up by the Electronic Frontier Foundation, a non-profit civil liberties group specializing in technology issues. Shari Steele, the organization's executive director, said that Sklyarov's arrest violates the First Amendment. "Courts have said that software is speech," said Steele, just like musical compositions, recipes, diagrams and blueprints. She told Attorney General John Ashcroft, in a letter: "Mr. Sklyarov is currently being held captive for the content of his ideas that demonstrate the flaws in Adobe's software and because he expressed them in the most precise scientific language available to his profession, computer code."

Beyond being unconstitutional, the law is likely to prove counterproductive in the effort to protect intellectual property rights online. By making criminals out of computer scientists who aretesting the strength of encryption and other security systems in movies, music and digital books, the law will inevitably weaken the security of American entertainment products, making them more vulnerable to hackers.

Intellectual property rights are worth protecting in order to encourage artistic and skilled people to continue creating, and there are certainly new challenges as the Internet advances. But the DMCA is a sledgehammer where a fine scalpel is needed. Who knows how many foreign computer scientists will be afraid to come to this country for fear of arrest? Who knows what kind of research and advancements the law will prevent?

If history is any guide, the Internet, just as radio and the VCR before it, will cause a big short-term commotion in the entertainment industry, then, when it figures out the pricing and technological strategies to continue making gobs of money, things will calm down.

That day can't come soon enough for me . . . or the Constitution.

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