Copyright War: Find a Truce

A full-fledged war between Hollywood and Silicon Valley is breaking out over digital copyright protection, but it isn’t even entertaining. In the past few weeks, entertainment and computer industry executives have been facing off before Congress to excoriate each other rather than reach a solution together to digital copyright issues that are slowing the distribution of new technologies and products. Hollywood complains that Silicon Valley is gutting its business by encouraging consumer piracy; the computer companies counter that the movie and record industries need to rethink their business model. The pressure is being upped to have Congress pass draconian legislation to hammer software producers.

Both sides have it wrong. How do you keep running an ice cream shop if people have figured out how to steal ice cream? That’s what the manufacturers of CDs, DVDs and movies are faced with as their products get copied on home computers. But that doesn’t mean you try to prevent consumers from sampling new, more powerful flavors or from having the product delivered to their houses, either.

Even as the two camps denounce each other, the outlines of a solution to this impasse started to emerge at Senate Judiciary Committee hearings last week. Justin Hughes, UCLA visiting professor of law, correctly noted that it is important to make a distinction between digital piracy of works and unauthorized copying by private citizens that is not distributed beyond a small circle of friends. The former threatens the profitability of industry; the latter is protected by the “fair use” doctrine.

This is the distinction that was successfully drawn for videotapes, allowing consumers to tape a movie broadcast on television but outlawing street sale of that same tape. Of course, there’s a twofold difference between the videotape debate of the 1980s and the debate now: The Internet can transmit almost instantly, and digital technology allows perfect copying.

One thing that Congress could do is mandate certain digital “locks” in software in exchange for the industry conceding a certain amount of private copying at home. Sen. Orrin G. Hatch (R-Utah), the top Republican on the Judiciary Committee, has noted that a so-called flag could be used in digital broadcasts that would allow digital home recording but prevent redistribution of such recorded programs via the Internet. Draft legislation being proposed by Sen. Ernest F. Hollings (D-S.C.) would go too far, crippling the ability of consumers to copy movies and music.

As technology races ahead, the movie and recording industries are always going to complain that they are about to go under. But Congress needs to realize that neither Hollywood nor Silicon Valley has a patent on the truth about the digital era. A truce between the two sides based on limited-use restrictions may be the best answer to this thorny problem.