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JOHN PALFREY

The digital copyright crisis

TECHNOLOGIES don't infringe copyright; people do.

Napster hit the Internet in 1999, and within months every college student knew what "downloading" meant. It meant "free music," and many graduated college with hard-drives full of illegally copied songs.

Since then, the music industry has been in a life-and-death struggle against illegal downloading. And Hollywood sees the same freight train coming its way.

Napster, in its original form, couldn't survive. Not because it wasn't popular; to the contrary, it was a huge hit. But a federal court in California found that Napster could be held responsible for the copyright infringements of those millions of people around the world who illegally downloaded music.

Last month, a federal court in California reversed the trend by deciding a case called MGM v. Grokster. At issue is the legality of new types of Napster-like software, such as KaZaA, Morpheus, and Grokster. These technologies are a bit different from Napster because they are truly "peer-to-peer," or P2P, and have no central server coordinating the sharing of the music files. This time, the court ruled that the providers of the computer programs are not necessarily liable for the illegal copying of their users.

Given that so many people break the law every day using these networks by copying music files, how can this possibly be a good decision?

Indeed, in the short term, the decision appears to be bad for many people who own copyrights -- the record companies, some of the artists who write and sing the songs, and the movie studios.

The solution to the problem, though, is not to ban a new technology because it can be used to make illegal copies. Such logic would have left us in a world without VCRs, tape recorders, or photocopy machines. Such logic might even extend to computers themselves. After all, in a digital age, every time we surf the Internet, save a file to our hard drives, or share files on a network, we make copies. Copyright law is out of date.

Most users embrace KaZaA and the like to access free music, mostly illegally. But these networks are used for legal purposes, too. The musician Wilco gathered a grassroots fan base by distributing some of his songs over P2P networks. P2P Congress recently distributed video footage of Senate Judiciary Hearings via these networks. The fact that programs like Grokster can be used for virtually limitless legal, creative, beneficial purposes helped prove their legitimacy to the court.

This decision underscores a larger point: Rather than fight the emerging technologies, we'd be better served to find new ways to embrace them.

The success of Apple's iTunes-iPod combination demonstrates that, when given the choice of going legit or continuing to cheat, many people will go legit -- particularly if the option is easy and cool enough. We should figure out how to offer legitimate services that enable people to be accountable to one another online, using innovations like Creative Commons licenses, which make sharing legitimately much easier.

Others argue for even more fundamental changes in the way copyright works. William W. Fisher, an intellectual property law professor at Harvard Law School, favors replacing the copyright regime with an alternative system of compensation. Internet users would pay a monthly fee -- about $5 per month -- that would be pooled and then paid to artists based on how often consumers listened to their works.

Fisher's model suggests that it's possible to provide unlimited music, and eventually movies, online for approximately the price of your Blockbuster late fee.

While it's unlikely that the US Congress will tackle copyright overhaul anytime soon, other countries are moving more quickly. Brazil is likely to debut new voluntary music "co-ops" in the coming months.

We have options for resolving the digital media crisis. The Grokster decision was far-sighted in responding to the copyright gridlock. Let's focus on giving people ways to enjoy digital entertainment and on becoming a more creative culture, not on shutting down innovation.

John Palfrey is executive director of the Berkman Center for Internet and Society at Harvard Law School. 

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