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File Sharers: Don’t Crow Yet

As a ruling by the U.S. Court of Appeals in Washington, D.C., points out, technology races so far ahead of judges and legislators that it’s hard to know when using software, hardware and digital networks to copy intellectual property is, or should be, a crime.

The decision last month -- barring record companies from forcing Internet service providers to reveal the names of alleged music swappers -- was, on its face, a victory for consumer privacy rights. Though it won’t halt the Recording Industry Assn. of America’s legal onslaught against piracy -- the trade group has sent out nearly 3,000 subpoenas and sued 382 people since last summer -- it will slow it. It also may yellow-light similar anti-bootlegging efforts that the film industry has suggested it will begin this year.

Before the ruling, the RIAA simply had to request a subpoena from any U.S. district court clerk’s office. Now, it must prove to a judge that it has sufficient evidence before naming any individual in a lawsuit and obtaining a subpoena. The judges drew useful distinctions between legitimate and excessive legal actions to defend property. The court, in effect, said the situation was analogous to letting a retailer safeguard its clothes with electronic tags and door guards but forbidding it to sneak into houses to find blouses without receipts.

The ruling, however, was not the triumph that some Internet file-sharing advocates claimed.

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The judges mostly punted the gnarly issue to Congress, holding, “It is not the province of the courts ... to rewrite [copyright law] in order to make it fit a new and unforeseen Internet architecture, no matter how damaging that development has been to the music industry.”

When work began on the Digital Millennium Copyright Act of 1998, which laid the legal foundation for fighting digital piracy, lawmakers had no idea that file-sharing, MP3 players and other digital innovations would be so popular. The act, thus, has little useful to say about what sort of copying constitutes fair use.

That’s why Congress should stop digging its head into the silicon and confront an issue it hasn’t for years. Sen. Orrin G. Hatch (R-Utah) should make good on his recent promise to herd the unruliest industry folks around a table and compel them to develop ways to take advantage of -- rather than just try to halt -- technology.

They could begin with an idea forwarded by Internet provider Verizon: to create licensed subscriptions with sharing included in the price. It’s just a start. As Consumers Union has put it, “There are all sorts of ways to protect content that don’t involve creating content prisons.”

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