Last month, after 62 days in operation, the Canadian Internet company
iCraveTV.com was shut down by a lawsuit filed by the Motion Picture Association
of America. Its business, apparently legal in Canada, is to redistribute live
broadcast television programming on its Web site.
The Motion Picture Association sued iCraveTV in federal court because
it is illegal in the United States to redistribute television without first
obtaining permission from the programs' owners. And it claimed that viewers in
the United States could circumvent iCraveTV's simple barriers to non-Canadians,
such as entering an area code. If the company had not stopped operations
immediately, says its president and co-founder, William Craig, it could have
been liable for ''hundreds of millions of dollars in damages.''
The most chilling aspect of the case, and there are many, was Mr.
Craig's response. That is, he did not argue the legality of the action against
him, but instead responded by inventing a technology that could stop the
discussion dead in its tracks.
He contends that the Internet's ''haphazard'' design makes it
impossible to determine precisely where a user's computer is located, and thus
the copyright laws that he or she is subject to. If he wanted to keep his
business, he says, ''we had to find another barrier to determine that someone
is indeed in Canada.''
So his company promptly developed a technological protection mechanism
-- he says patents are already being filed -- that will pinpoint where users of
iCraveTV are located geographically, thus barring anyone under the jurisdiction
of United States-style copyright restrictions from viewing protected
programming outside Canada.
Although he would not provide specifics about the new system, Mr. Craig
said he was convinced that this ''enhanced geographic screening technology''
would soon be required to make the Internet attractive enough for rights
holders to put their content on the Web.
''Collectively, the Internet has to evolve and adapt,'' Mr. Craig says.
To effect that evolution, he says, ''what we're trying to do is create
'country-area networks' where you can have a computer just serve a certain
territory.'' This, he says, would enable conventional content providers to
''control their rights within that territory.''
Many people are likely to object strongly to Mr. Craig's balkanized
Internet. Privacy and free speech issues aside, they might say -- for good
reason -- that such a system would devolve the Internet into a model very much
like the restricted, centralized control of cable television.
That is a business model with which the $65 billion media and
entertainment industries -- the very ones that nearly sued the pants off Mr.
Craig -- are quite familiar.
''In every context that it can, the entertainment industry is trying to
force the Internet into its own business model -- the perfect control of
content,'' wrote the constitutional scholar Lawrence Lessig, whose column about
the iCraveTV case recently appeared in The Industry Standard, the
Internet-focused business magazine.
The industry obviously has the influence to do so. ''I think we want to
nail them to the wall now,'' said Jack Valenti, the president of the Motion
Picture Association, at the time the iCraveTV suit was filed.
Less than a month later, iCraveTV pulled the programming from its Web
site.
What is most alarming, however, is that the content industries seem to
have successfully secured the legal means by which they will be able to enforce
this perfect control.
The Digital Millennium Copyright Act of 1998, which was heavily
promoted by the entertainment industries, contains a provision called
''anti-circumvention.''
It imposes ''a new kind of liability even in situations of fair use''
of copyright-protected information, says Peter Jaszi, a law professor at
American University in Washington.
In copyright terms, ''fair use'' describes the conditions under which
someone can legally use or excerpt a copyrighted work. But under the
anti-circumvention provision, it is illegal to crack a copy protection
technology for any reason. And anyone who makes, sells or uses a device --
including a computer -- that is capable of circumvention is engaging in a
criminal act.
It was the anti-circumvention law, for example, that allowed a DVD
industry group to call for the arrest of a 16-year-old Norwegian boy who had
deconstructed and published the protection code for a DVD movie, even though
his intent was not to make illegal copies. He cracked the code because he
wanted to watch the movie, which he legally owned, on his Linux computer, but
no DVD decoding software existed for the Linux operating system.
What is worrisome about the DVD story is that in one fell swoop, the
content industries completely eliminated fair use -- any situation in which the
making of a copy might be considered legal -- from the discussion. If they use
technology to lock up their content, the mere unlocking of it is an actionable
offense. End of story.
''If this were a copyright case, the Linux people might be able to
demonstrate the social utility was high and the commercial harm was low,'' Mr.
Jaszi says.
''Because it is so clearly weighted toward proprietary interests,
people who want to argue they're making responsible unauthorized use of
copyrighted materials have no place to stand,'' Mr. Jaszi says.
Similarly, if Mr. Craig's protection technology makes it to market,
anyone who attempts to circumvent his system -- even, for example, for a
broadcast that would be perfectly legal to watch free on a television -- could
also be subject to criminal prosecution.
Throughout history, innovation has been linked conclusively with the
free exchange of information and ideas -- by means of the public library
system, in the previous millennium, and certainly via the Internet today. If
everyone hermetically seals their content with technology, Mr. Jaszi says, ''we
could well end up with a world where we have very strong protection for a
rather limited range of ultimately not very interesting content.''
Mr. Lessig wrote: ''We could build a network to give content providers
perfect control. We could design a network that would be the envy of the
Soviets, encoding content control far more effectively than any possible law.
But that is not our tradition.''
Copyright law was never meant to grant owners perfect control, and such
control is certainly anathema to the free-flowing Internet and the
entrepreneurs who are enthusiastically making it work to their advantage. The
content industry's traditional method of dealing with these challenges --
trying to extinguish or suppress new technologies -- did not work with the
introduction of video and audio cassettes.
And Mr. Jaszi says it never will. ''There's a tremendous opportunity to
cooperate with, and not resist, this technology,'' he says. ''What people want
is choice, the ability to control the experience of cultural consumption. You
can't force them back into the box that they have now escaped.''