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Lively Debate Marks Digital Download Fete

WASHINGTON, D.C. -In evidence of the high stakes and volatility of the current debate over intellectual property in the digital age, the Consumer Electronics Association’s Digital Download conference, held at the Renaissance Mayflower hotel, here, was marked by lively debate.

With the well-documented, recent legal travails of Napster and the Recording Industry Association of America (RIAA) serving as the backdrop, panelists spoke of the technological and consumer ramifications of peer-to-peer file-sharing sites such as Napster, the technology of copy protection, and the impact of litigation on technological development.

Representatives from nearly every facet of the issue, from congressional legislators, lawyers, scholars, manufacturers, software designers, artists, and music and movie industry members were present to make their pitch.

Gary Shapiro, president of the CEA, outlined his organization’s beliefs in his opening remarks. “We like Napster’s service but are concerned with its impact on artists,” Shapiro said. “But any restrictions on any recording or other new technology must be justified and narrow.”

The conference began with what turned out to be the most heated panel: Digital Freedom vs. Digital Restraint. Panelists frequently traded barbs over issues of copyright infringement, fair use and compensation for copyright owners.

Peter Jaszi, law professor at Washington College of Law, defined fair use as non-commercial private sharing-though he admitted that the emergence of peer-to-peer file sharing has drastically altered the scope of non-commercial sharing.

Jaszi also found fault with the Ninth Circuit Court’s interpretation of copyright law, calling it “crude” when it ruled against Napster, because while some users abuse such services as Napster (for instance, to download entire albums for free) many others don’t.

Fritz Attaway, executive VP of government affairs for the MPAA, disagreed. “Fair use should not adversely affect the copyright owner,” he said. “If you think these [peer-to-peer file-sharing] services don’t harm the copyright owners, you’re a prime candidate to buy the Brooklyn Bridge.”

Jonathan Potter, executive director of the Digital Media Association, energetically criticized the MPAA and RIAA for shortsightedness when it came to the Internet and said, “What Napster did was take advantage of a market vacuum created by the music industry when they chose to ignore the Internet.”

“The problem is largely that copyright law existed before this new technology and the vagaries and intricacies of the law are being used to bludgeon new technology,” said Manus Cooney, Napster VP of corporate and public policy. “The RIAA has engaged in a policy of sue, sue, sue until they figure out how to come to grips with technology. And that’s not a good strategy.”

Talk turned to the technology of copy protection in a panel titled “Practicing Safe Download.” Panelist Cary Sherman, executive senior VP and general counsel for the RIAA, claimed that new formats with heavy encryption, such as DVD-Audio, were necessary not only because of the improved listening experience but because “the current format supports vast Internet piracy. We want a transition to formats that promote personal use, not worldwide publishing.”

He also admitted that services like Napster “raised the bar” for the music industry in terms of facilitating distribution and cultivating new markets. “Record companies do have to create a friendlier online experience, and Napster was essential in creating this market,” said Sherman.

Congressman Rick Boucher (D-VA) gave a luncheon keynote outlining his “concern over the actions of some in the content community” to suppress the traditional uses of copy-protected material. He also claimed Congress should reaffirm the concept of fair use in the Digital Millennium Copyright Act but was optimistic about finding a resolution fair to all concerned.

That was not the view expressed by Chuck D, Internet music advocate and hip-hop artist, during the Artist Keynote. Employing an impressive array of colorful metaphors, D hammered the RIAA for being disingenuous. “They hold up artists as a body shield to protect their own greed. ‘Protect the artist!’ they say. But they definitely ain’t protecting us. I’ve sold 15 million records, and I haven’t seen a royalty check in eight years.”

The day ended on a more conciliatory note with an address by Congressman Billy Tauzin (R-LA), who chairs the House Committee on Energy and Commerce. Tauzin, speaking about the recent injunction delivered against Napster, said the courts “really had no choice. Napster is engaging in a business plan that benefits from copyrighted material without compensating the creators.” But he also said that the music industry should have “harnessed Napster” rather than proceed with what could amount to years of litigation.