Inter@ctive Week,
08/28/2000, Vol. 7 Issue 34, p40, 3p by Marion Long
Imagine a city in which allthe traffic cops are
forced to ride tricycles, while the motorists buzz around freely on
unmarked Harley-Davidsons. It certainly would be easy for a driver to
learve "the law" far behind no matter how many officers were
on the job or what kind of speed limits were posted by the side of the
road. Something like this is happening when it comes to copyright law
and the Internet. Copyright law is still in full force; it just keeps
getting increasingly unenforceable. Some experts even think that the
realities of the digital world make protecting intellectual property
an impossibility, and that copyright as we know it is about to come
to an end. Others believe that technology -- which caused the problem
in the first place -- will solve it in the near future as well. And
some are certain that it's just a matter of time before Congress steps
in, regulates the Internet and shores up the interests of copyright
owners.
The recent Napster case provides a good example of just how crazy the
online copyright chase has become. Enforcing copyright law -- like any
law enforcement -- depends on a "return address" of some kind.
If someone is stealing your material and selling your books or discs
from a fixed, physical location and trucking them to a brick-and-mortar
warehouse, it may take a lot of effort, but the law can catch up to
them and stop them. With Napster, however, there was simply no "there"
there.
Napster (www.napster.com), a Web service that allows users to swap music
files, made it possible for total strangers to connect with each other,
create perfect copies of copyrighted data and distribute that data worldwide.
At least MP3.com, named for an audio format that compresses digitally
recorded music to a size that can be easily transmitted across the Internet,
had a digital warehouse for receiving and distributing the copied files.
The record industry could sue MP3.com, and basically force the company
into a settlement. But Napster's decentralized structure --like that
of the Net as a whole -- creates an enormous problem for copyright protection.
And "next-generation" Net services are looking to eliminate
the need for even the kind of small, central information source that
Napster uses.
WHO, ME?
Napster's court battles also exposed another of copyright law's major
dilemmas: the fact that infringement is largely being committed by people
who believe that what they are doing is an ordinary and respectable
thing.
"In some ways, the biggest threat to the copyright industry is
the growth of a worldwide generation that really doesn't understand
or respect copyright," says Kenneth Richieri, vice president and
general counsel at The New York Times. "Any law -- whether it's
copyright or a jaywalking law -- ultimately depends on the vast majority
of people believing it's right and obeying it. Most people can't disobey
any law and have it work."
But the most significant aspect of the Napster case was simply that
it represented an attempt by the courts to grapple with these issues.
That's a sign that legislative involvement may not be far behind.
What history teaches us, says Laura Goldbard, a patent and trademark
attorney at Stroock & Stroock & Lavan in New York, is that every
time a significant new technology emerges, the legislature intervenes
at some point, and the Copyright Act is amended to cope with it. This
happened when videocassettes became widely available, and it's about
to happen now, she believes. "All we're waiting for is the landmark
case that is urgent enough to give the legislature incentive to act,"
Goldbard says. "At that point, all the rights will be settled,
and what people are capable of doing or allowed to do and not allowed
to do will become very clear."
Goldbard has absolutely no doubt that the future amendment will strongly
favor the copyright owner. "The Copyright Act is there to protect
the rights of creators" she explains. "I definitely think
that people have gone to an 'expansive' use of other people's material,
and it's going to be cut back."
Of course, in the past, owners of intellectual property most feared
the person who planned to make money by stealing their product, but
many Internet infringers have no revenue-seeking purpose whatsoever.
Goldbard is unmoved by this, or by the belief that creative value dictate
that material created by other people ought to be free to everybody
else.
"The First Amendment does not allow you to trample on someone else's
rights" she says. "When someone has no right to material,
you just can't make a declaration that you're entitled to it and therefore
the Copyright Act should step aside. Such appropriation violates the
core of copyright law, which was created by the Constitution itself,
and isn't going to change just because of the Internet."
Once that landmark case is decided and the legislation is amended, an
educational process will take place, Goldbard says, just as in the case
of home video use. The penalties to be imposed on those who break the
copyright laws will be published widely, so that everyone will know
what can happen to infringers.
LAW LACKS TEETH
Of course, if enforcement should come down to something like arresting
ordinary citizens, there may be a problem. "It's one thing if it's
a Mob front pirating Hollywood movies," Richieri says. "It's
quite another if it's a matter of the copyright police coming to your
house and hauling away your 15-year-old [child]. That's not going to
happen."
Richieri suggests instead that we may see an educational and public
awareness campaign on the part of the copyright industry to educate
people about the principles and value of the law. He also speculates
that you may see action taken to force universities and other places
where a great deal of infringement activity goes on -- to monitor the
use of their systems. In addition, he thinks that Internet service providers
may be sued on a sort of contributory infringement argument: that they
know that their lines are being used to commit illegal infringement.
Apart from the law, of course, the most effective means of protecting
information in a high-tech world is provided by technology itself. There
is real hope of encryption being at least an important partial solution
to these dilemmas.
Dave Safford, manager of IBM's Global Security Analysis Lab, says that
he's not resigned to playing the ongoing game of creating encryption;
someone breaking the code and posting the solution, of course; creating
new encryption; and so on. He believes that a method can be designed
that will solve protection problems, at least for some longer period
of time.
"The basic ciphers themselves should last 30, 40, 50 years, especially
with AES [Advanced Encryption Standard] about to be put in place"
Safford says. "We know how to do encryption very well; it's something
that it just won't be practical to break. The problem tends to be more
with the software quality -- getting rid of bugs and getting our systems
designed to utilize the encryption correctly -- and that's something
we can do something about."
Safford sees a number of developments both in the culture and in Internet
technology, however, that will make for challenging times in the next
five years. The hackers, he says, have moved on from attacking the networks
and servers, and are now looking to attack the clients. At the same
time, the clients -- i.e., most of us -- are becoming more vulnerable
to attack, due to developments such as wireless connectivity and around-the-clock
connections through services such as Digital Subscriber Line or cable
modems.
"We'll see many more attacks on the client in the next five years,"
Safford warns. "We've seen some already, with the Love Bug, the
Listen and so on, but we'll be seeing many more. The real challenge
for us is to bring down to the PC level the security that has been so
effective for networks and big Web servers."
WIDESPREAD PROTECTION
One thing is for certain: The importance of encryption will increase
greatly in the next five years. "We've seen how important it has
been on the networks, protecting them from the original hacker attacks
and forcing hackers to look elsewhere," Safford points out. "Before
long, it will be almost pervasive essentially everything will be protected
with encryption."
Without a doubt, the hunt for some technological means that will help
solve the copyright protection problem has never been more frantic.
This obsession with online infringement has even led to the creation
of a hot new industry: digital rights management (DRM).
A burgeoning number of DRM companies are trying new ways to enclose
information and prevent the broad, almost infinite distribution that
the Net makes so easy. One DRM method involves sealing up content in
electronic boxes protected by mathematical codes, and then requiring
the use of a "key" -- a password or some other technological
procedure, available only from the copyright owner -- in order to gain
access to the material. Other proposed technological solutions include
electronic watermarks or tags, hidden copyright information inserted
into files, and "locking up" data by disabling the printing
function and removing the cut, copy and paste functions from applications.
Certainly, George Lucas' plan to create and distribute his Star Wars
films digitally and Stephen King's strategy of selling books over the
Internet worry publishers of all sorts. The digitization of the entertainment
business -- indeed of the whole world -- creates unprecedented opportunities,
but greatly increases the likelihood of copyright infringement and other
electronic thievery and mayhem. A current legal debate, now being played
out in the Manhattan U.S. District Court, centers on how to deal with
programmers who crack copyright protection -- in this case, the DVD
encoding designed to protect digitized movies from unauthorized copying.
But beyond New York, piracy is proceeding apace in nearly every part
of the globe.
In the past, Chinese and Russian "entrepreneurs" sold illegal
copies of Ernest Hemingway and John Steinbeck novels; today they make
knockoffs of Microsoft software. Tomorrow, widespread digital piracy
of American intellectual property may well take place. And not only
in China or the former Soviet bloc, of course.
Whenever a country is poor, it steals, Richieri says. The only way to
deal with this legally now, he says, is with what he calls the "carrot
and stick thing" of dragging nations into the World Intellectual
Property Organization, one of the 16 special agencies of the United
Nations. The WIPO's responsibilities include promoting the protection
of intellectual property throughout the world, and administrating the
various multilateral treaties that deal with the legal and administrative
aspects of intellectual property protection.
"What traditionally happens is that a poor country which is outside
the system steals until it gets to parity," Richieri says. "Once
it gets to a point where its economy is actually gaining from the international
economy, it begins to squeeze its illegal businesses and eventually
comes into compliance."
Copyright's original purpose -- which can be found in Article 1, Section
8, Clause 8 of the U.S. Constitution -- was to "promote the progress
of science and useful arts" by trying to .ensure that creative
people received the profits from the use or sale of their creations.
Honoring such a goal is in the online world's long-term best interests.
And while copyright infringement might never entirely cease, it seems
likely that some combination of legislation, education, technology and
cooperation may make it possible to reel in those bandits on their Internet
Harley-Davidsons in the years to come.
~~~~~~~~
By Marion Long
_________________
Long, Marion. "FIGHTING
THE GOOD FIGHT: ENFORCING COPYRIGHT LAW ON THE WEB". Inter@ctive
Week 08/28/2000, Vol. 7 Issue 34, p40, 3p
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