The price of free expression

If you build it, will they come and shut you down?

That is the question Netizens should be asking themselves as they rush online in droves and create scores of home pages.

The passage of the Digital Millennium Copyright Act this month underscores just how far the Net has come from a few years ago, when surfing the Web involved jumping from home page to home page, many of them overflowing with free expression but little else. Today, as virtual communities boom, entertainment companies and other copyright holders have begun to make it abundantly clear that they are closely watching how their materials are used online.

Not that there's anything wrong with that. Copyright holders have to protect their property on the Net, as they do on all other media. But the overall result of this heightened awareness seems to have been a chilling effect on many sites and the sweeping commercialization of the once-wild Web.

Two examples of this trend come to mind: In June, threats from the Harry Fox Agency forced the shutdown of the Online Guitar Archive (OLGA), a Net-based library of guitar music charts. The site was full of guitar tablatures, or "tabs"--by-ear transcriptions in the form of notations with lines and numbers that show guitarists how to play songs. Though the concept is similar to sheet music, which is protected by copyright, the tabs on the site were submitted by users for other users in a vast community of musicians.

There was nothing commercial about OLGA. The site had been online since 1992, having evolved from a Usenet community. Still, Harry Fox saw it as a threat.

The other case involves a lawsuit filed in May by the Recording Industry Association of America against a 20-year-old Arizona college student for posting 50 songs on his site by artists such as Nine Inch Nails, the Cure, and New Order, in MP3 format. That case is more insidious, no question--the site held unauthorized copies of copyrighted material that could, at least in theory, hurt sales of the legal product.

But the perpetrator is looking at 13 counts, each of which carries up to a $100,000 penalty. The RIAA said it only filed suit after the student was served with multiple warnings to remove the offending material. But imagine being a 20-year-old college student who loves music. You think you are doing the artists a favor by helping promote their music to others, only to be slapped with a lawsuit that potentially could lead to more than $1 million in damages.

Again, its operator was not gaining financially from the site. That doesn't excuse his illegal behavior, but somewhere in that situation, the idea of educating fans was lost and the scare tactic was adopted in spades.

At the Herring on Hollywood conference held recently in Santa Monica, California, entertainment and online executives discussed the importance of using the Net to market TV shows, movies, and music, and the difficulty in balancing that need with the fear of copyright infringements.

One solution, put forth by a start-up that sells a Net copyright monitoring service, is to offer users sanctioned materials such as particular photos or sound clips. That way, fans get to have their sites and the studios and record companies maintain control over what material is posted online in connection with their properties.

The problem is that those pesky fans like to be creative in what they put on their own sites. From the beginning of the Web's explosion, fans have been protesting copyright holders' efforts to squelch their creativity.

As analyst Patrick Meehan of the Gartner Group points out, the cable show South Park enjoys a thriving community of fans online, who have been encouraged to post whatever they want, even items beyond the dozens of photos and sound and video clips Comedy Central makes available on its Web site. Meehan notes that all this freedom has not exactly hurt ratings or merchandise sales.

One thing is certain: Both sides need each other. Without the studios and other entertainment concerns contributing compelling content to the Web, its growth is sure to be stunted--especially as a mainstream medium. But without the fans, the Web becomes a really flashy ghost town.

Beth Lipton is associate Net editor of News.com.