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Battle lines harden over Net copyright

A former commissioner of the U.S. Patent and Trademark Office is stepping back into the digital fray, creating a pro-copyright coalition aimed at defending his and Congress' work.

John Borland Staff Writer, CNET News.com
John Borland
covers the intersection of digital entertainment and broadband.
John Borland
6 min read
Bruce Lehman thinks the digital copyright laws he helped write are in trouble, and it's largely the Net's fault.

Lehman helped author the laws that govern music, video and other digital media distribution when he ran the U.S. Patent and Trademark Office in the mid-1990s. Now an international intellectual property lobbyist, he says he's stepping back into the digital fray, creating a pro-copyright coalition aimed at defending his and Congress' work against public attacks.

The record and movie industries might be winning court battles against Napster and other digital enemies, he says. But they're badly failing to explain why copyright is necessary and must become stronger for the online world.

"I've had a frustration for a long time that it seems like the only voices speaking about copyright and the protection of artists right now are those who say there shouldn't be any rights," Lehman said Thursday. "I am absolutely amazed at the number of people who seem to believe there is a morality in that."

There's a reason Lehman is rejoining the fray more than two years after his bill became law. Once-arcane issues of copyright law have suddenly been made real to ordinary people, from college students to rock musicians, by the fight over file-swapping service Napster. And this is changing the scene of the battles.

No longer is Capitol Hill the center of copyright arguments; lobbyists and activists now are fighting for the hearts and minds of a public that can veto copyright laws with a single click of Napster's download button.

As the wider implications of copyright law have come into focus, an articulate opposition to portions of the 1998 Digital Millennium Copyright Act (DMCA) is finally coalescing, bridging elements of the entertainment, technology and free-speech communities. This loose coalition is gaining voice as these various constituencies realize they're being drawn together and their views are beginning to reach the ears of policy-makers.

"I agree with Bruce Lehman. I think there is a groundswell of opposition," said Fred Von Lohmann, a copyright attorney with Morrison & Foerster who has been a public critic of the DMCA. "In some ways I think he and the copyright owners got a free ride before people were really ready to pay attention. Now I think people are ready to hear about it."

Free stuff isn't enough
It's clear that the force of Napster and other so-called peer-to-peer software programs has sparked much of the energy in the debate. By providing unlimited access to free music, these services helped crystallize some radicals' conception that "information wants to be free."

This idea--or at least the software that makes it possible--has won millions of adherents. Electronic Frontier Foundation (EFF) co-founder John Perry Barlow has served as this group's intellectual polar star, writing that digital distribution makes copyright irrelevant.

But this appeal to the basic desire for free stuff didn't prove to be the right catalyst for coalition building. The movie studios' fight to stamp out software code that can help crack through anti-piracy protections on DVDs has proved to be a better rallying point for industry critics, if slower to seep into the public's awareness.

That case illustrates the clash between free speech and copyrights. It has re-energized the passionate coalition of programmers, professors and free-speech advocates that not so long ago helped tear down the United States' ban on posting most software encryption code, which protects e-mail or computer files from prying eyes.

Alongside this group are open-source software aficionados, artists who oppose the big record labels, and the more selfish energies of ordinary Napster lovers. Many of these say the record labels and movie studios' moves toward stronger copy-protection technologies threaten to take away rights that consumers have now.

In the crosshairs
At the center of the renewed controversy is part of the 1998 DMCA that protects almost any copyright holder's attempt to prevent unauthorized digital copying. Breaking through copy protection, or even distributing a device or information that would help break copy protections, was made illegal.

That rule was largely theoretical until a young programmer from Norway wrote a program called DeCSS, which could bypass the copy protections on DVD movies and allow them to be copied on computers. The motion picture industry reacted quickly, threatening to sue people who posted this code online and following through in a few cases.

In the end, the only person who fought back in court was Eric Corley, publisher of hacker-focused magazine 2600. He and his attorneys argued that he had a right to post the code as a matter of freedom of speech and freedom of the press. They also said he had a right to link to other sites that posted the code.

They lost on both counts. Federal Judge Lewis Kaplan ruled that the code was indeed primarily meant for breaking the movie industry's copy protections and was thus illegal to post or even link to under the 1998 copyright law.

A further illustration of the law's power emerged recently, when a group of Princeton University, Rice University and Xerox PARC researchers said they had broken through all the protection technologies proposed by the Secure Digital Music Initiative (SDMI). But they said attorneys had advised them that telling the world how they had done it would likely violate the law, so they have yet to publish their results.

"This is not a copyright law," says Columbia University law Professor Eben Moglen, who also represents the Free Software Foundation. The same type of laws could not apply to a printed lock-pick manual or a book on how to burgle houses, he noted. "This is a technology-control law of a particularly aggressive kind."

Reality check
Lehman agrees up to a point. But he says that in the real world, where real artists have to make a living, something had to be done about the well-recognized ease of making infinite digital copies.

"This is a real-life thing. This is not theoretical," Lehman said. "There was a philosophy behind this legislation, and that was that the creative community must have the tools available to protect their copyrights."

The big trade organizations also are increasingly worried about the growing opposition to what they won in 1998 as their legal rights.

"There looms the onrush of a collision between copyright rooted in the Constitution...and the rowdy, assertive babble of those who are determined to shrink and possibly exile the concept of copyright in order to grab creative material without paying for it," Jack Valenti, president of the Motion Picture Association of America, said in a speech Monday. "I urge the Congress and the public to ever remember the huge benefits to the nation's economy offered by the copyright industries."

The as-yet-unnamed group Lehman is forming could prove a powerful voice in the copyright debates. For several years, the Recording Industry Association of America and the MPAA have been the primary public face for defenders of copyrights.

Those trade organizations have consistently appealed to the need for protecting artists' rights, and the RIAA has run an education campaign in schools on this issue for years. But because they are the trade associations for large corporations, rather than directly representing the artists whose copyrights the corporations typically own, their arguments have been viewed by many as suspect.

A few groups have recently emerged to speak more directly on behalf of artists, including Artists Against Piracy and the Future of Music Coalition.

For the most part, however, these groups have been more concerned with ensuring artists have a voice in the debates rather than in defending copyright law made without their participation.

"The Digital Millennium Copyright Act is very forward thinking in some ways," said Noah Stone, executive director of Artists Against Piracy. "But it is becoming clear that that particular law does have some things that need to be changed to address some things that aren't happening in the marketplace."

Some of those changes could come in court. Corley, with the help of the EFF and a growing number of supporters, is appealing his case. Other elements of the DMCA are also being reviewed by courts in the Napster copyright infringement suit and other cases.

But the ability of the various groups involved to win public sympathy will affect the balance of power between artists, big corporations, consumers and free speech. By this measure, the forces attacking the DMCA feel they are gaining ground.

"We are heading towards a time when it will no longer be tolerable to say, 'Those used to be your civil liberties, but now it's digital,'" Columbia University's Moglen said.