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Rojansky is a law student and a fellow at Stanford’s Center
for International Security and Cooperation.
The “Napsterization” of
Grokster is in the hands of SCOTUS...
is up in arms over digital media these days. The Supreme Court
will soon decide whether Grokster,
a peer-to-peer music
service similar to Napster, could be held liable for its customers' violations
of copyright law. Last month, meanwhile, the D.C. Circuit Court
of Appeals unanimously overturned the Federal Communications
Commission’s decision to require manufacturers of any equipment
capable of receiving a digital television signal to make their
devices read and obey a flag embedded in the signal by broadcasters.
This “broadcast flag” would have allowed content
producers to block unauthorized copying and distribution of digital
programming, which is why the Motion Picture Association of America
(MPAA) spent millions of dollars to fight consumer advocates
in the courts and to win the FCC’s endorsement in the first
place. Having lost the case, the MPAA is now pressing Congress
to circumvent the courts and grant the FCC power to control manufacturers
of devices ranging from desktop computers to cell phones. The
entertainment industry’s efforts to strangle digital media
in its infancy are a thinly-veiled assault on consumer rights,
and, more importantly, a waste of time, talent, and goodwill
that the industry may never recover.
Lawsuits and lobbying campaigns represent billions of dollars
in expenses that are simply passed on to consumers in the form
of exorbitantly priced entertainment. Is it really appropriate
for consumers to expect to pay more for television, movies and
music each month than for transportation, groceries or health
care? The disproportionate cost of entertainment is especially
glaring when the limitless resource of the Internet makes so
much information of all kinds so widely available at no charge.
It seems to me the solution is not more regulation.
Nor is the answer a costly and drawn-out legal battle to decide
and to what extent producers can control digital content, and
whether viewing, listening and recording device manufacturers
should bear the burden of incorporating copyright enforcement
tools into their products. Perhaps instead the solution should
be continuing investment by the producers of music, television,
and film in technologies that improve the depth and quality of
the digital signals themselves, while making those signals more
challenging to illegally decode and duplicate. Investment in
technology instead of lawsuits at least seems more in keeping
with the creative image of the entertainment industry--a valuable
image that the recording industry’s campaign against Napster
and Grokster, and the MPAA’s lobbying shenanigans, are
Let’s face it. Some people make their living
by ripping off the intellectual property of others. Other people
endowed with tremendous natural abilities, and enjoy the challenge
of deciphering even the most hacker-proof encryption technologies.
Even if police departments devoted more of their already inadequate
resources to tracking down and arresting every unauthorized copier
of commercial works, some people still would not be deterred.
The tougher and costlier the enforcement mechanisms, the more
genuine creativity in entertainment is stifled for lack of funding,
and the more likely whole communities of artists and their fans
will be to migrate to inherently unfettered media like the Internet.
The good news is that most people have absolutely no desire
either to cheat their favorite stars out of fair prices for the
entertainment they produce, or to invest the time, money and
energy required to circumvent even simplistic, inexpensive copy-protection
regimes. The solution is therefore obvious, although it will
be hard for the MPAA to swallow. Content producers must abandon
their OPEC-style approach to mass media distribution in the digital
age, and begin to sell their content at a price consumers are
willing to pay, or face the consequences of losing market share
to black and gray market competitors. So far only Apple, a relative
newcomer to the entertainment world, has tapped into this philosophy
with its innovative iTunes online music store. At around a dollar
per song, though, the system still seems far too pricey for most
music fans, especially when nearly 90 cents of each dollar goes
to middlemen like Apple and the record companies.
In the century
that has elapsed since the first silent films produced in Hollywood
thrilled audiences around
the world, billions
of entertainment dollars from thousands of cities and towns have
been funneled into the coffers of a few dozen international industry
giants. The beginning of this process heralded the end for local
playhouses and folk musicians. Now, a century later, the entertainment
giants find themselves threatened by the next big wave, digital
media, which may ultimately engulf the entire industry and disperse
billions of dollars back into consumers' pockets. If traditional
bastions of the entertainment industry, like the MPAA, want to
retain the interest and loyalty of the audiences who pay their
bills, they need to start thinking less about regulation and
enforcement and more about how to offer greater value and convenience
for digital age consumers. tOR
is a law student and a fellow at Stanford’s
Center for International Security and Cooperation.