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The Battle Between Tinseltown and Techville

Digital technology, however, poses a unique challenge to copyright. The law gives creators exclusive rights to exploit their works' economic value. Authors sell manuscript rights to book publishers, for example, and publishers use copyright law to stop pirate editions that pay no royalties to publishers or authors. Before the computer revolution, copyright worked because it was relatively easy to find pirate printing presses or factories forging bootleg records or films. The inconvenience of making photocopies, or audio or video cassettes, kept copyright violations in check.

But the explosion of digital technology and the Internet has changed that equation. Digital copies are frequently higher quality than analog, and they don't degrade with each reproduction. And the Internet in all of its forms -- e-mail, the Web, peer-to-peer -- has slashed the cost of distribution. That erases one of the biggest advantages of the entertainment companies.

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Can innovation be used to protect creativity? The recording industry made an attempt to control copying by designing a "serial copy management system" in conjunction with Digital Audio Tape. Under a 1992 law, audio recorders using DAT had to include this copy-protection system. These technological controls blocked individuals from using a taped copy of a song to make another copy. That angered consumers, however, and the medium never took off. Computers were exempted from the 1992 law, later enabling millions of people to "rip" compact discs into compressed digital MP3 music files on their hard drives. They loved that convenience, and they loved sharing those unprotected MP3 files.

This brings us back to the current conflict between creativity and innovation. Single-purpose devices can be retrofitted to stop copying relatively easily. Audio compact disc recorders, VCRs and cable television set-top boxes are all built with anti-copying controls designed to limit users to none or one copy of a song, movie or television program. But when Hollings proposed the same thing for general purpose computers, techies decried the constraint on their ability to program and build digital devices. It went against the tide of innovation, which was merging technologies not separating and limiting them.

This freedom to tinker is exactly what the techies fear they could lose if the Supreme Court sides with Hollywood and against Grokster. Why? Because every engineering decision and product design would be subject to legal review by entertainment industry lawyers.

Technology companies from Microsoft to Apple to Grokster say they have a better way to protect copyrighted content. It involves digitally scrambling songs, movies and video games with encryption software, like the technology used to create digital versatile discs. DVD encryption leaves much to be desired, however; it has been cracked by a Norwegian teenager who spent three years defending himself against Hollywood's lawyers.

Nonetheless, the approach has promise because it uses innovation to protect creativity, rather than using the courts to suppress innovation.

It doesn't hurt that user-friendly software like Apple's iTunes and Microsoft's Media Player stand to profit if they, too, can keep adapting to innovations and become intermediaries in a more orderly digital media marketplace.

Meanwhile, however, the entertainment industry will press forward, striving to extend the scope of copyright further into the digital world. No matter how the Supreme Court rules, we can expect the dispute to be back before Congress. When it is, Congress shouldn't forget that acting in the name of creativity could have dire consequences for innovation.

Author's e-mail: drew@drewclark.com

Drew Clark is the senior writer for the National Journal's Technology Daily, an online Web site, and covers the politics of telecommunications, media and technology at www.drewclark.com.

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