- The Washington Times - Thursday, April 5, 2001

Imagine that, instead of paying one price to own a book, you paid a fee for each time you read or reread a page and were restricted as to where or when you could do so. That is what the future may hold, and consumers have been made powerless to stop it.

The Recording Industry Association of America has sued Napster for contributory copyright infringement, and though they have painted their dispute as "protecting artists' copyrights," this self-righteous veneer is starting to wear thin.

This week, representatives for Napster were on Capitol Hill pleading with lawmakers to step in on their behalf, in favor of compulsory licenses for the movie and record industry to make more music available on the Internet. Asking Congress to step in would address the symptoms without treating the cause. Napster has also offered to pay the recording industry $1 billion in royalties over the next five years, even if revenues from its soon to be launched subscription service do not cover this fee. The bottom line is that Napster is willing to deal, while the RIAA is not. That's because the RIAA is not so much interested in compensation as they are in controlling how media is consumed. Napster may currently be free, but the main reason for its popularity is freedom of access: It allows users to access any songs, in any quantity, at any time. The industry, however, has a completely different vision of how consumers will use Internet media.

In 1998, the entertainment lobby convinced Congress to pass the Digitial Millennium Copyright Act, a bill which makes the circumvention of digitally encrypted media illegal, but is virtually silent on "free use" rights that consumers have enjoyed for years in the non-digital world. Encryption allows copyright holders not only to protect against the copying and distribution of digital media, it allows them to control how and when media is used, a tool with enormous profit potential. The entertainment industry knows, however, that if given the choice, consumers will opt for the music and movies that they can use where and when they like, copy for personal use, etc., over those that they cannot. In other words, encryption is only lucrative if all unencrypted media are phased out. The DMCA gives the industry the power to do so.

As many upstart digital media companies have complained, the entertainment industry has yet to work out any sort of licensing arrangements for their copyrighted content. Nor do they have any incentive to. They can encrypt their media to only work with industry-sanctioned (and likely industry-owned) devices, ensuring their dominance over the Internet's distributive channels. A Napster subscription service would give consumers the kind of access to music they want. The RIAA, however, has no incentive to deal with Napster as long as the DMCA supports their quest to control consumption.

Copyright is a valuable tool that protects the incentives of artists and innovators to create. However, it is the duty of Congress to determine how far a copyright holder's monopoly extends before it interferes with the incentives of other innovators. Next time Congress steps into the arena of copyright, it should consider more than the pleas of parties with an immediate financial interest in the matter. The innovators of the future will be grateful.

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