TECH CONTROLS ON P2P NETWORKS SEEN ‘HARD TO WRITE, EASY TO IGNORE’

Govt.-mandated controls on P2P technologies are “hard to write, easy to ignore and hard to repeal if unintended consequences harm the marketplace,” he said at a Progress & Freedom Foundation (PFF) conference on “Promoting Markets in Creativity: Copyright in the Internet Age.” However, he acknowledged there was no way to completely protect IP rights.

With Internet and physical piracy on rise, Smith said, his subcommittee was trying to balance ensuring that new technologies aimed at preventing infringement didn’t limit fair use rights with support for private industry’s fight to halt theft of its property. One area, digital TV (DTV), poses “great danger of massive piracy of unprotected broadcasts” once transition to DTV is complete, he said. His subcommittee is closely watching FCC rulemaking on digital broadcast copy protection, Smith said, because agency might issue rules that affect Copyright Act. Any shift to DTV requiring use of “broadcast flag” technology must not adversely affect consumers’ legitimate use of lawfully acquired products, he said.

Intersection of Internet with copyright law is occurring in an environment that’s “historically novel” in a legal sense, said U. of Va. law prof. Edmund Kitch. It’s taking place within framework of 1976 statute whose fundamental thrust is to approach problem of changing technologies in a way that’s different from earlier iterations of law, he said.

Latest statute encompasses new technologies, relieving content owners of having to seek additional congressional blessing for each new development, Kitch said. It focuses on copy itself, not on technology by which it’s made, he said. Therefore, infringers, not content owners, are the ones who must ask Congress for help, he said.

Congress historically hasn’t acted if a matter is in dispute in copyright law, Kitch said. The “most reasonable prediction” is that proponents of some sort of Internet exemption won’t succeed unless they can show Internet is a “wild zone of freedom and autonomy” where law has no role, he said. That argument isn’t likely to fly, he said, because Internet is one of “most natural environments for enforcement of law that ever existed.” It’s a system that keeps its own records of what happens on it, he said, and it already has proved very useful for law enforcement agencies. Serious problems such as spam will prompt changes in Internet’s architecture that will only help copyright enforcement, Kitch said. There’s a “good chance that copyright will come to control the Internet environment and that will be the end of the story.”

Internet has changed way people think about relationship between public and property, said former FCC Comr. Harold Furchtgott-Roth, now at American Enterprise Institute. The transfer of public goods -- which some consider copyright to be - - from the private to the public domain is radically different in the context of the Internet, he said. When land is placed in the public domain, he said, hearings are held and the owner is reimbursed for the “taking.” That’s not the case online, where people can look at, listen to and see others’ works, covet them and take them, Furchtgott-Roth said.

“Internet changes everything,” said Michael Einhorn, senior adviser to InteCap. The Digital Millennium Copyright Act (DMCA) proves the point, he said: For the first time, Congress has outlawed all technology that allows decryption of copyright protections even when that technology can be used for good purposes. “I can accept” there’s a reason for the DMCA’s anticircumvention provisions now, Einhorn said, but the question is for how long. Those rules will be relaxed only when Congress decides to do so, he said, with no input from either the U.S. Copyright Office or the public.

It’s a “no-brainer” that illegal file-sharing should be illegal, Einhorn said. However, he said, the Internet enables a “communitarian spirit” that’s worthwhile in itself, beyond simply pirating others’ music.

Copyright’s basic concept “remains sound,” PFF Senior Policy Counsel William Adkinson said. The problem has been in its enforcement, he said. Safeguarding rights to digital works “will pose special obstacles” that will require changes, he said. Adkinson said he was optimistic about the outcome, however, because: (1) Digital products offer much greater benefits than do analog ones. (2) The scope of the piracy problem and the lack of any viable substitute for copyright’s system of marketable rights will force change. (3) “Paying customers pay for free- riding.” The more freeloaders become paying customers, the more incentive creators have to develop better content and invest in higher quality products.