Don't Stifle Technology While Protecting Content

Our industry faces a challenge. Our flexibility with technology is conflicting with the rising power and strength of copyright owners. How we resolve this tension between copyright and technology will define our future. More, it will shape how our customers can communicate, create and share information, education and entertainment.

A few large consumer electronics companies have worked with both the recording and motion picture industries on developing technological measures that protect against unauthorized copying of content. One fruit of these efforts is the DVD, whose introduction benefited both content and CE people.

With the rapid growth of the Internet and a strong content industry concerned about its very future, the demands of the content owners have increased. The stakes have gotten higher for both sides. And the content owners have hurt themselves by refusing to adopt new business models to embrace the paradigm shift in technology.

Instead, the copyright community has declared war on technology and is using lawsuits, legislatures and self-help to restrict the ability to sell and use new technologies. Lawsuits have shut down file-sharing services like Napster and threaten peer-to-peer networks like KaZaA and Morpheus. ReplayTV has been challenged as an illegal product. The RIAA has announced that it will start suing individuals who engage in file sharing and has subpoenaed Verizon demanding it identify downloading subscribers.

Congress has stepped into the act. Legislation has been introduced which requires all technologies to be shaped by a government-mandated copy protection system. Other legislation allows any copyright owner to seek and destroy the posting of copyrighted products on P2P networks via personal computers connected to the Internet. Still other legislation would allow a content owner to insert an embedded watermark into the work to determine if there was infringement and, at the content owner's discretion, disable the device, even if, upon subsequent determination, the use was lawful.

The most recent and scary development is that in a presentation at the Progress and Freedom Foundation's Aspen Summit on Aug. 21, Deputy Assistant Attorney General John Malcolm said that peer-to-peer sharing is piracy and a criminal offense.

The copyright community has reshaped the debate. All of a sudden, the downloading of a song to sample an artist's wares has been described as a criminal act.

I submit that policymakers should follow some basic principles:

• First, do no harm.
• Second, advances in technology should not be restricted.
• Third, claims of harm should be greeted with great skepticism.
• Fourth, copyright owners have a high burden of proof before any technology should be restricted.
• Fifth, copyright owners should continue developing ways to protect their content at the source, rather than insisting that the burden should be on the device that plays it.
• Finally, any restrictions on technology should be narrowly crafted, define limitations on abuse by copyright owners and define legitimate consumer recording rights and expectations.

The collision course between copyright owners' desire to preserve existing business models and the inevitable development of newer, better, faster and cheaper technologies need not be fatal. Our future will include a Renaissance of creativity along with a connected world where everyone has low-cost access to information, entertainment and education.