- The Washington Times - Monday, November 13, 2000

Washington may portray Hollywood as its bitter nemesis, but this East Coast-West Coast dispute is not real. Washington politicians have been instrumental in helping the entertainment industry bully technology companies, squelching innovation, competition and consumer choice. This technological coup, which is being waged on the grounds of copyright law, is exemplified by two recent developments: the high-profile deal between music file-sharing service Napster and content mogul Bertelsmann and the not-so high-profile activation of key provisions of the 1998 Digital Millennium Copyright Act (DMCA).
Admittedly, politicians aren't all to blame. Washington is full of tech-savvy entertainment lobbyists who have clouded the politicians' distinctly less-than-tech-savvy heads with talk of "protecting artists' copyrights" from Internet piracy, a noble sounding intention if there ever was one.
The DMCA, however, largely drafted by entertainment lobbyists, does a lot more than simply protect copyrights. The bill establishes a federal law against the circumvention of encryption technologies on digital media. This would be fine if encryption simply protected against unlawful copying and distribution. However, unlike the compact discs, books, and video tapes on the market now, encrypted media are smart. Encryption allows content holders to determine when, where, and how their product is used.
The DMCA, therefore, protects content holders not only against uses which will harm incentives, but uses which do not fit into their business plans. Hollywood has fooled the government into handing it a big legal stick to lord over technology companies who have a different vision of the future of media.
There does seem to be promise in the recent announcement of a deal struck between Bertelsmann and Napster Inc., whose software application allows users to swap music files over the Internet for free. In order to make the deal, Bertelsmann, a member of the music lobby, the Recording Industry Association of America (RIAA), crossed the battle-lines of the RIAA's suit against Napster for contributory copyright infringement. Bertelsmann will help fund a subscription service on Napster which compensates record companies for use of their copyrighted music. If the other record companies follow suit, the Napster file-sharing model would likely kill the encryption scheme in spite of the DMCA because, like the Internet, Napster capitalizes on the free flow of information rather than control.
But the deal can also be seen as yet another failure of the DMCA, which, due to intentionally murky wording, does not protect Napster use as a "fair use" of copyrighted content. In fact, the Napster-Bertelsmann deal can be seen as yet another instance of a content holder using its Washington clout to commandeer a legitimate technology. Further, if Napster can create a subscription service acceptable to content holders, a verdict will never likely be handed down in the RIAA suit. Thus, the DMCA would not receive the court interpretation it deserves, leaving it as it is for Hollywood to use against other upstart companies. Though the future of encryption now looks less imminent, the East Coast and West Coast are as tight as ever.

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