TECH CONTROLS ON P2P NETWORKS ‘HARD TO WRITE, EASY TO IGNORE’
Unless proved otherwise, existing copyright law -- properly enforced -- is the way to deal with peer-to-peer (P2P) file-sharing, House Judiciary Subcommittee on Courts, the Internet & Intellectual Property (IP) Chmn. Smith (R- Tex.) said Tues. Govt.-mandated controls on P2P technologies are “hard to write, easy to ignore and hard to repeal if unintended consequences harm the marketplace,” Smith 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.
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With Internet and physical piracy on the rise, Smith said, his subcommittee is trying to balance ensuring that new technologies aimed at preventing infringement don’t limit fair use rights with support for private industry’s fight to halt theft of its property. One area, digital TV (DTV), poses “a great danger of massive piracy of unprotected broadcasts” once the transition to DTV is complete, he said. His subcommittee is closely watching the FCC rulemaking on digital broadcast copy protection, Smith said, because the agency might issue rules that affect the Copyright Act. Any shift to DTV requiring the use of “broadcast flag” technology must not adversely affect consumers’ legitimate use of lawfully acquired products, Smith said.
The intersection of the 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 the framework of the 1976 statute whose fundamental thrust is to approach the problem of changing technologies in a way that’s different from earlier iterations of the law, he said.
The latest statute encompasses new technologies, relieving content owners of having to seek additional congressional blessing for each new development, Kitch said. It focuses on the copy itself, not on the technology by which it’s made, he said. Therefore, infringers, not content owners, are the ones who must ask Congress for help, he said.
The Internet has changed the way people think about the relationship between people and property, said former FCC Comr. Harold Furchtgott-Roth, who’s now at the 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.
The “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.